Category: News Analysis

News analysis for scholar to understand the issues in a better way.

India Can’t Be Refugee Capital: Government

Let me begin at the beginning itself by pointing out that I fully endorse and support the Government’s stand that India can’t be the refugee capital of the world. Centre rightly told the Supreme Court on January 30 that, “We do not want India to become the refugee capital of the world.” What wrong has Centre said?
                                            To put things in perspective, the government was responding to a submission made by Rohingya refugees that the Border Security Force (BSF) at the borders was “pushing back” their compatriots fleeing persecution in Myanmar with chilli spray and stun grenades. Additional Solicitor General Tushar Mehta while appearing for the government orally submitted before a Bench led by Chief Justice of India Dipak Misra orally submitted very rightly that, “People from every other country will flood our country.” Very rightly said!
                                             To be sure, Tushar rightly submitted that, “India will be flooded with refugees. We don’t want India to become the refugee capital of the world. Anybody can enter the country and we can’t do anything? These things are better left to the executive.” What wrong has Tushar said? Judiciary must leave this delicate issue which falls within the government’s purview and which has tremendous security implications to decide for itself!
                                   With due respect to judiciary, I very strongly feel that it should instead first set its own house in order. The 230th report of Law Commission strongly recommended the setting up of more high court benches in different states. But see the unbeatable irony that only one state that is Karnataka has alone gained from it. Karnataka already had a bench at Hubli but 2 more benches still were created at Dharwad and Gulbarga for just 4 and 8 districts by the previous UPA government in 2012! UP has more than 10 lakh cases pending and Karnataka has just less than 2 lakh cases pending still Karnataka has 3 benches and UP just one! Worst of all, West UP which alone accounts for more than half of the pending cases and which alone has 26 districts and whose population alone is 9 crore which is 3 crore more than that of Karnataka has not even a bench leave alone high court and 3 benches! Why judiciary has never stepped in to correct this?
                                      Why Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi to recommend where all benches were needed in late 1970s had recommended that UP must have 3 benches at Agra, Dehradun and Nainital but not one bench was set up even though on its recommendations benches were set up at Aurangabad in Maharashtra which already had 2 benches, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? Why judiciary never probed this baffling and blatant disregard of the landmark recommendations of the Justice Jaswant Singh Commission report? Why people of West UP and people of Uttarakhand who till 2000 formed part of UP were compelled to travel thousands of kilometers all the way to Allahabad to get justice and not a single bench was given to them despite the landmark recommendation to create 3 benches here by Justice Jaswant Commission and yet judiciary never investigated into the same?
                                             Why judiciary has never ensured that the vacancies in subordinate judiciary the filling of which is in its hands are filled completely and still more than 6000 posts are lying vacant? Why UP has maximum pending cases, maximum population, maximum districts, maximum MPs, maximum MLAs, maximum Judges but has least benches only one at Lucknow which is so close to Allahabad and no bench at West UP which witnesses maximum crime, maximum riots, maximum killings etc and yet judiciary has never taken any action on this? It is high time and judiciary must act on this as soon as possible so that people of West UP especially litigants are not compelled to travel whole night to Allahabad which is more than 700 km away and the high court and benches of 8 states and even Lahore High Court in Pakistan is nearer to West UP as compared to Allahabad and this was raised by Atal Bihari Vajpayee in Parliament as Leader of Opposition in 1986 when he demanded bench of high court for West UP but 32 years later still there is no bench!
                                          Anyway coming back to the main topic: How can this be ignored that India is already an overpopulated country? How can this be ignored that India already has its own refugee problem and lakhs of Kashmiri Pandits have been displaced from their own house in Kashmir? How can this be ignored that Rohingyas are being planted in Kashmir and Jammu which will only serve to further fuel the growing imbalance and fuel further militancy in the area?
                                      Why do Muslim countries especially Pakistan which always champions the cause of Muslims not take Rohingyas in their own land? Why do European countries which lecture India on human rights not either grant them refuge in their own country? Why is America which again believes in lecturing us on human rights not forthcoming in giving refuge to them in their own country?
                                              Why only India is expected to give refuge to Rohingyas? Why no other country comes forward to welcome them in their own country? Why even Bangladesh which has given refuge to Rohingyas seeks all sorts of help for Rohingyas from India and not Pakistan? India has generously helped Rohingyas in Bangladesh by providing them all humanitarian help but how can it disregard its own national and security interests and give refuge to all Rohingyas who have been displaced from Myanmar?
                                          What is the guarantee that terrorists will not infiltrate along with Rohingyas to India? What is the guarantee that those Rohingya terrorists who killed about 100 Hindus after brutally maiming them and torturing them and then killing them will not enter India along with Rohingya refugees? What is the guarantee that those who come to India will not be brainwashed and after getting paid by ISI will not work to destabilise India?     
                                        Who can deny that Arakan Rohingya Salvation Army is a Rohingya insurgent group active in northern Rakhine State of Myanmar? Who can deny that Hafiz Saeed who is chief of Lashkar-e-Taiba has close links with these terror groups? Who can deny that Hafiz can easily use Rohingyas in India as mere pawns to destabilize India and carry out terror attacks to kill innocent Indians in large numbers? Who can deny that India will become a refugee capital if such people are not stopped promptly from entering India?
                                        Who can deny that Rohingyas already in large numbers have been staying illegally in India since many years? Who can deny that they must be sent back to their original country from where they came? Who can deny that some parties don’t want them to go back as they are playing voter bank politics and by illegal means have got them Indian citizenship?
                                                I have absolutely no hesitation in concluding that Supreme Court must stay away from ruling in such cases which involves policy making decisions and especially which directly concerns the security of citizens. Tushar rightly said that if the argument of the petitioner is accepted then, “The country would be flooded by refugees. We do not want India to become the refugee capital of the world. These are matters between countries involving diplomatic relations. We cannot allow people to enter like this.” The court will take up the matter next onMarch 7.
                                             On a concluding note, the Supreme Court must take very seriously what Tushar has rightly said and instead direct its whole energy in setting up more benches in lawless states like UP whom former UN Secretary General Ban ki moon had termed as “rape and crime capital of India” still has least benches in India and West UP and Bihar which is another lawless state has none!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Soldiers Have Every Legal Right To Act In Self Defence

Let me begin at the very beginning by expressing my utmost and deepest sympathies with the families of those three young stone pelters – Suhail Lone, Javid Bhat and Rayees Ahmed in their 20s who were killed in firing by army soldiers in Shopian in South Kashmir. The families lives stands completely devastated and nothing can compensate for the invaluable loss that they have suffered with which they have to cope the rest of their lives. The families of those three young stone pelters must now come out of their grief slowly and make sure that they don’t spend their whole life just grieving which will just serve no purpose at all.
                                          It is an unpalatable truth that these three young stone pelters are themselves responsible for inviting death for themselves. Why did they along with around 300 people attack a military convoy comprising people-and-goods carriers of Indian Army which was passing through the village of Ganowpora village in Shopian? Why these Kashmiri youths keep attacking army vehicles and soldiers? Why don’t they understand that soldiers too have weapons with which they too can retaliate which can have most dangerous consequences as we saw here?   
                                         Why without any provocation from soldiers do Kashmiri youths start attacking them with stones, sticks and other weapons? Why is restraint by soldiers taken as weakness by these Kashmiri youths? Why are those leaders who provoke such youths to indulge in stone pelting not taken in custody and why are they not prosecuted promptly?       
                                             Why are cases immediately withdrawn against these youths who indulge in stone pelting? Are they not being encouraged to time and again indulge in stone pelting? Who is responsible for this? None other than the state government as also the Centre with whose support the Jammu and Kashmir state government is running so freely here!
                                               Why did the Chief Minister permit FIR to be registered against Major Aditya and those soldiers who only acted in self defence? Why is it ignored that Major Aditya was not even present there at the scene of attack and was very far away as reported in news channels? Why is it expected that Kashmiri youths will attack soldiers with weapons and stones and the soldiers will just not retaliate fearing that some stone pelters may be killed?
                                          Do soldiers not have the right to private self defence? Do soldiers only have the obligation of keep facing stones and other weapons mercilessly and yet not retaliate in any manner? Do soldiers not enjoy the protection under Armed Forces Special Power Act (AFSPA)?
                                    Why is it ignored that these soldiers who were attacked by stone pelters were not firing at some innocent people mercilessly which certainly would have been an offence but were just transferring an Army unit’s luggage and skeletal staff from Point A to Point B when a couple of the vehicles got separated from the main body of the convoy? Why is it ignored that Kashmiri civilians have no right to even attack leave alone kill our brave soldiers who fearlessly discharge their duty? Why no FIR against them lodged by police who attacked the soldiers without any valid reason whatsoever who only  resorted to lodging FIR against Army soldiers? Is this fair?
                                                How can it be ignored that Army was compelled to lodge counter FIR when police failed to do this? How can it be ignored that a Junior Commissioned Officer who tried to reason with the 300 strong mob was himself attacked and hit by projectile and collapsed and the mob wanted to straightaway murder him and the soldiers had to fire to save his life? How can it be ignored that the Standard Operating Procedures were adhered to in this case as has been testified by none other than  the Northern Army Commander – Lt Gen D Anbu?   
                                               How can it be ignored that none other than Lt Gen D Anbu has himself told news agency ANI that the army had conducted its own probe into the conclusion that the soldiers had to resort to firing after they were “provoked to the ultimate”? How can what such a senior Army officer is saying be ignored so easily? How can  it be ignored that the JCO was attacked very brutally and the mob wanted to virtually kill him which necessitated the firing by the soldiers?
                                               Why has State Government allowed police to lodge an FIR against Army soldiers who were just doing their duty and were attacked without any reason whatsoever? Why Centre did not stop State Government from doing so? Why Centre is not acting even after a national outrage has broken out over the lodging of FIR against those soldiers who in order to  save the life of the JCO and their own lives had no option but to fire?
                                                Why is it ignored that Major Aditya who was leading the convoy was at least 200 metres ahead and was not present at the incident spot? Why still the name of Major Aditya was lodged in the FIR against the Army? Why is it ignored that seven Army men were injured and extensive damage was caused to 11 vehicles?
                              Why the Defence Minister Nirmala Sitharaman is not speaking out in defence of Army? Why did she not strongly object to lodging of FIR against soldiers who were just acting in self-defence which cannot be a crime under any law? Why even the PM Narendra Modi is silent on this?
                                               It is not Sanjeev Sirohi alone or Sageer Khan alone or Amit Sharma alone or a group of lawyers in Meerut alone who are angry at what has happened with the soldiers in Kashmir! The whole nation is enraged with the gross injustice that is being meted out to these brave soldiers who were attacked themselves! It is because of these brave soldiers that India stands united as one nation and it is they who go all out to help Kashmiris stranded in floods without any grudge whatsoever! But see what they get in return!
                                          Not surprising that many lawyers in different parts of India as we see in Meerut have also lodged their strongest protest which they have pointed out also in the memorandum that they have submitted to the DM of Meerut – Anil Dhingra stating that if the Centre does not withdraw the FIR lodged against Maj Aditya or against the soldiers who are all victims and not perpetrators of any crime then they will be compelled to go on hunger strike! Centre must wake up now and do the requisite damage control exercise by promptly getting the FIR withdrawn against Maj Aditya and those soldiers who were themselves attacked! They were not the attackers rather they bore the brunt of attack of more than 300 mob and yet retaliated with the minimum force under very compelling conditions!
                                         How can all this be ignored? If Centre does not act in time the protest against it can like in the case of the film Padmaavat become nation wide and this time the representation will be from all sections and all religions and all castes of our society who think nationally and love their brave soldiers more than anything else! Can Centre again do the huge folly of ignoring all this?
                                     It is for Centre now to decide what course of action it wants to take – appease its coalition partner PDP or keeping in view the national interests and the provocating circumstances under which the soldiers were compelled to open fire order immediate withdrawal of FIR! If soldiers had indulged in unprovoked firing and killed about 100 or 200 or even if three or two or one, I would have been the first to demand the strongest possible action against them! But that is not the case! So I stand with these soldiers and with Maj Aditya in all possible respects and so do most of our countrymen which is quite perceptible and naturally so as they were compelled to fire to save the life of the badly injured JCO and also of their own!
                                              How can this be deemed to be a crime? Under no circumstances can such acts be deemed to be a crime! It is most shameful and disgraceful that these Kashmiri leaders never blame the stone pelters who in most cases are provoked by pro-Pakistani lobby and paid also and never do anything to bring them in the national mainstream!  
                                            All said and done, if Indian soldiers don’t restraint themselves even in such provocating circumstances there can be blood all over Kashmir! Is this is what Kashmiri and separatists leaders want? It is for them to decide what is best for Kashmiris!
                                  Why the leaders of political parties or of separatists or their sons and daughters never indulge in stone pelting? Why only youth of middle class families indulge in it? Why the children of Syed Salaluddin and other terror leaders and separatist leaders becoming doctors, engineers and government servants and not stone pelters like other ordinary Kashmiris?
                                             Such terror leaders, separatists and politicians have made stone pelting and anti-India activity a big business industry getting money secretly from Paskistan and undoubtedly are the biggest enemies of Kashmiris and not the soldiers of India who are there to always protect them and always stand by them as they do when some flood comes or any other calamity comes like earthquake etc! Who can deny this? This is what Kashmiri youths must realize and save themselves from being used as a mere pawn in the hands of pro-Pakistani lobby! Centre must act now and withdraw FIR against Major Aditya and those soldiers who have been named in the FIR because what they have done is not a crime from any angle! Can any jurist question this? Every soldier of Indian Army has every right to act in self defence and fire whenever they find that it is absolutely necessary to save the invaluable lives of their fellow soldiers or their own lives!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.    

India And ASEAN Countries Vow To Improve Ties

To begin with, the India-ASEAN Commemorative Summit 2018 in New Delhi witnessed the presence of the leaders of all ten member states of ASEAN (Association of South East Asian Nations) not just at the summit but also registered their strong presence by being invited by India as guest of honour at the Republic Day Parade. It deserves special mention here that the summit of 2018 was the 25th anniversary of the sectoral partnership, the 20th anniversary of the dialogue partnership and the fifth anniversary of the strategic partnership that was enunciated on the occasion of the 20th anniversary of the commemorative summit in 2012. It is no ordinary feat that the leaders of all the ten ASEAN countries reiterated their firm resolve to strengthen further their relations with India which is now growing by leaps and bounds!
                                       Needless to say, the ties with ten ASEAN countries forms an important aspect of India’s foreign policy. New Delhi is leaving no stone unturned to ensure that it expands the strategic, trade and cultural ties with ASEAN countries. There are, in total, 30 dialogue mechanisms between India and ASEAN across various sectors.
                                    Before proceeding ahead, it must be known that who all are the heads of states who visited India as Chief Guest of ASEAN countries. They are – Nguyen Xuan Phuc who is PM of Vietnam, Najib Razak who is PM of Malaysia, Lee Hsien Loong who is PM of Singapore, Aung San Suu Kyi who is State Counsellor of Myanmar, Hun Sen who is PM of Cambodia, Prayut Chan-Ocha who is PM of Thailand, Joko Widodo who is President of Indonesia, Thongloun Sisoulith who is PM of Laos who assumed office in February 2016, Rodrigo Duterte who is President of Philippines and Hassanal Bolkiah who is Sultan of Brunei and also as PM is head of the government. Hassanal prior to Bill Gates was the richest man in the world. He is also believed to be the longest-reigning monarch in the world. It was in 1994 that the then Indian PM PV Narasimha Rao had invited Singapore ‘s PM Goh to be the Chief Guest at India’s Republic Day Parade and now 24 years later the heads of all 10 ASEAN countries have come together to India which clearly vindicates that a lot of water has flown under the bridge since then!
                                                It cannot be lost on us that India and ASEAN nations together account for 1.85 billion people which implies that it covers about 30 percent of the global population and have a combined GDP of approximately $5.1 trillion. Taken together, India and ASEAN would form the third largest economy in the world. Therefore, it becomes all the more important for both India and ASEAN countries to cooperate together for mutual benefit.
                                     It is noteworthy that Indonesia is the biggest constituent of the grouping in terms of economic output. The GDP of ASEAN countries (in US $ mn at current prices) in total as in 2016 is 2,559,463 and of countries are as mentioned here – Lao PDR 15,903, Cambodia 19,194, Myanmar 68,636, Vietnam 198,196, Singapore 296, 977, Malaysia 299,632, Philippines 311,453, Brunei Darussalam 11,206, Indonesia 931,216 and Thailand 407,048. India has now made the right move in stepping up on the gas and pulling out all the stops to further enhance bilateral ties with all the 10 countries of ASEAN just mentioned above. This is truly commendable!  
                                    While craving for the exclusive indulgence of my esteemed readers, let me also inform them that approximately 12.5% of investment flows into India comes from ASEAN. Also, the FDI inflow to India between April 2000 to August 2017 is $ 514.7 billion and outflow from India is $38.7 billion. India rightly intends to enhance this figure much higher and the ASEAN countries too are keen that this figure goes further up as there is a lot of scope for further improvement in trade ties! 
                                         For my esteemed readers exclusive indulgence, let me also inform them that the India-Myanmar-Thailand Trilateral Highway and the Kaladan Multimodal Project connecting India and Myanmar are in progress. It must also be noted that a possible extension of the India-Myanmar-Thailand Trilateral Highway to Cambodia, Lao PDR and Vietnam is currently under consideration. This will certainly benefit all the countries collectively and so this possible extension must be completed at the earliest.
                                                It is noteworthy that in 2009, India announced a contribution of $50 million to the ASEAN-India Fund to support the implementation of the ASEAN-India Plans of Action for deepening ties across economic and socio-cultural spheres. It also cannot be missed out that projects worth approximately $48 million are under various stages of implementation or processing. The other sector specific funds between India and ASEAN are – ASEAN-India Science & Technology Development Fund (AISTDF) and ASEAN-India Green Fund. 
                                           To be sure, China’s trade with ASEAN is certainly right now bigger than India’s. But this does not mean that India cannot leave behind China in the near future. India must exert all its influence to further strengthen bilateral ties with all the 10 ASEAN countries and I am sure that they too will appreciate that India is far less aggressive than China and much more dependable ally which never intends to occupy the territory of any other country unlike China which can never be trusted under any circumstances!
                                        But for this to happen, India will have to really work very hard in this direction. It is here that the laudable move by the Modi government to invite all the 10 ASEAN countries as Chief Guests at the Republic Day Parade is most significant. But a lot of groundwork still remains to be done. In 2006, China’s export to ASEAN countries was 8.6% and India’s export was 2.6%. In 2006, China’s import to ASEAN countries was 11.5% and India’s was 1.5%. In 2016, China’s export to ASEAN countries was 12.5% and India’s export was 3.3%. Now coming to imports in 2016, China’s import share was 20.7% and India’s import share was 1.9%.  
                                          Honestly speaking, India lags far behind China in its trade relations with ASEAN. The India-ASEAN trade is currently only US$71 billion and has been declining regularly since reaching a peak of US$80 billion in 2011-12. In contrast, the ASEAN-China trade is US$450 billion. This is the real difference between India and China. In 2016 India invested US$1 billion in ASEAN as compared to US$10 billion by China. It is only Singapore alone which is a large investor in India and is credited with a cumulative total of about US$30 billion which constitutes more than 98% of the ASEAN total.
                                                  It is a matter of grave concern that among ASEAN’s trade partners, India ranks low at 7th way behind China, Japan, USA, Australia, South Korea and the European Union. This despite the glaring fact that ASEAN countries are its immediate neighbouring countries and still India is seventh in investments which must be addressed as it has been long neglected and it is China which has gained most at our cost! The bilateral trade went up from $2 billion in 1992 to $12 billion in 2002 and then jumped high to $72 billion in 2012.
                                         There is no reason why it can’t still further jump very high if leaders of India and ASEAN resolve to collectively and unitedly work in this direction henceforth! It is disappointing that a two-way target of $100 billion that was set by the 25th anniversary of the bilateral relationship in 2012 could not be achieved and the figure that could be achieved was just $76 billion! But that does not mean that future cannot be changed to our delight if India and ASEAN countries implement on what they have vowed to work together and cooperate in all fields and increase the investment level considerably as also increase the business ties to new heights!
                                              It must be divulged here that in his meeting with Vietnamese Prime Minister Nguyen Xuan Phuc who was the first to arrive for the India-ASEAN summit, PM Modi discussed with him maritime cooperation and defence ties. The two countries signed two Memorandum of Understanding (MoUs) in the field of information and broadcasting and space cooperation. External Affairs Ministry spokesperson Raveesh Kumar said in a tweet that, “Long standing traditional & strategic partnership! PM@narendramodi met with Vietnamese PM Nguyen Phuc. Discussed cooperation in trade and investment, defence, maritime & other areas.”
                                                 It must also be divulged here that Vietnam is one of the claimants of the South China Sea of which more than 90% is claimed by China. In other words, both countries – India and Vietnam have a common and powerful adversary – China and so must cooperate in all respects to outmanoeuvre the latter in all possible ways! The other ASEAN countries such as the Philippines, Taiwan, Malaysia and Brunei also have overlapping claims to the waters of the South China sea with China.
                                        According to Indian officials, maritime cooperation is an area of key focus in the summit. It is the theme of the summit’s retreat along with security. The other MoU that was signed was for implementing an arrangement between the Indian Space Research Organisation (ISRO) and the National Remote Sensing Department of Vietnam to establish a tracking and a data processing facility in Vietnam under the ASEAN-India space cooperation. The MoU will also define the framework and conditions of cooperation to establish a facility to provide Indian remote sensing satellite data over the ASEAN region to enable remote sensing applications, which include natural resources management, ocean development and disaster management by member states.
                                               Let me hasten to add here that President Ram Nath Kovind asserted that India-Vietnam relations are on an upward curve and said the two countries need to enhance cooperation in oil and gas sector. Kovind while welcoming Vietnamese PM Nguyen Xuan Phuc who had called on him at Rashtrapati Bhavan said that, “We need to redouble our efforts to reach the target of USD 15 billion in bilateral trade by 2020.” He said India remains committed to encouraging its industry to explore investment opportunities in Vietnam in pharma, solar, education and other sectors. He said that, “We also need to enhance cooperation in the oil and gas sector, including through trilateral cooperation with friendly countries.” Kovind while welcoming him also said that, “India is delighted to host him as a guest of honour at the Republic Day celebration.” On India celebrating 25 years of its partnership with ASEAN, Kovind said that, “This makes his presence even more special. Vietnam is a preferred partner for India in ASEAN.”
                                             Interestingly enough, Singapore Prime Minister Lee Hsien Loong who is co-chair of the ASEAN-India Commemorative Summit said that, “We believe that India makes a major contribution to regional affairs, helping to keep the regional architecture open, balanced and inclusive.” Loong also remarked that, “India has set a goal of establishing 100 smart cities. Singapore, an urbanised city-state, is ready to partner on this journey and help develop urban solutions based on our own experience. Andhra Pradesh’s new capital city of Amaravati is one example.” Very rightly said!
                                             It is indisputable that India has a lot to learn from Singapore and gain from it in many ways. Singapore has played a very crucial role in India’s closer integration with ASEAN. We should never forget this!
                             Going forward, Loong said that, “It is an honour for all the ASEAN leaders to be in New Delhi for this occasion. ASEAN leaders are also deeply honoured to be invited as chief guests at tomorrow’s 69thRepublic Day Parade. He also rightly pointed out that, “ASEAN and India’s combined population of 1.8 billion represents one quarter of the world’s population. Our combined GDP exceeds $4.5 trillion. By 2025, India’s consumer market is expected to become the fifth largest in the world, while in southeast Asia middle-class households will double to 163 million. Both regions are also experiencing a demographic dividend – 60% of ASEAN’s population is below 35 years old, while India is projected to be the world’s youngest country with an average of 29 by 2020. ASEAN and India also have fast-growing internet user bases, which will help us grow the digital economy. Against this backdrop, we still have much scope to grow our ties – India accounted for only 2.6% of ASEAN’s external trade in 2016.”
                                           It cannot be disputed that Loong rightly suggested that, “First, ASEAN and India should redouble efforts to promote trade and investment. We need to keep existing pathways up to date and relevant, including the  ASEAN-India Free Trade Area (AIFTA). We should work together to conclude a high quality Regional Comprehensive Economic Partnership (RCEP), surpassing the existing AIFTA. This would create an integrated Asian market comprising nearly half the world’s population and a third of the world’s GDP. Streamlining rules and regulations will stimulate investments in both directions, complement India’s ‘Act East’ policy and facilitate ‘Made in India’ exports to the region. Second, our people will benefit greatly from greater land, air and maritime connectivity. We appreciate India’s efforts to improve land connectivity including the extension of the trilateral India-Myanmar-Thailand Highway and India’s $1 billion line of credit to promote infrastructure connectivity with ASEAN. We look forward to working closely with India to boost our physical connectivity, including by expeditiously concluding the ASEAN-India Air Transport Agreement. This will enhance people-to-people Indian and ASEAN carriers tap new and emerging markets, especially for business, investment and tourism. Digital connectivity is another important area of cooperation, and can shape people-to-people connections for the future. India’s Aadhaar system creates many new opportunities, for instance, to harmonise our Fintech platforms or connect e-payment systems.”
                                           It is remarkable that the highest-level of participation at the India-ASEAN Commemorative Summit to mark the 25 years of Indo-ASEAN ties comes in the backdrop of increasing Chinese economic and military assertiveness in the region. India’s influence as a powerful counterbalance to China cannot be discounted by anyone. This alone explains why these 10 ASEAN countries too seek to play a long innings with India and cooperate with us in all possible respects!  
                                         To say the least, India is working tirelessly on its Act East Policy which strongly pushes for strengthening ties with the 10 ASEAN countries with emphasis on three Cs – connectivity, commerce and culture. India is also working actively on boosting connectivity with South East Asia by land, air and sea and a trilateral highway connecting India, Myanmar and Thailand, the work of which is still in progress and is a key part of it. India-ASEAN trade stands at over $70 billion trade and the two sides are also negotiating a Regional Comprehensive Economic Partnership (RCEP). The RCEP is a proposed Free Trade Area (FTA) between the 10 ASEAN countries and the six countries with which ASEAN has FTAs – Australia, China, India, Japan, New Zealand and South Korea. India has a special bond with South East Asian countries as Buddhism and the Indian epic Ramayana is common in most of these countries even though most of the South East Asian nations have their own version of Ramayana.
                                              Be it noted, there are more than 400 flights that operate in a week between different Indian cities and Singapore. However, there are just 200 flights a week with Thailand and Malaysia respectively. What is most concerning that there is still no direct flight between India and the largest and the most important country in ASEAN – Indonesia but I am sure that this can be rectified by both the countries acting in tandem for which due initiative must be taken in this regard. Similarly we also seriously observe how there are regular shipping links between Indian ports and that of Singapore and Klang in Malaysia but with other countries we either have few or not even a single shipping link with the other ports in the region. This must be addressed and cannot be left unaddressed!
                                       To be sure, Prime Minister Narendra Modi while addressing the leaders of the ASEAN countries at the ASEAN-India Commemorative Summit said that security and freedom of navigation will be in the heart of India-ASEAN cooperation in the twenty-first century. Modi also said that, “Humanitarian and disaster relief efforts, security cooperation and freedom of navigation will be the key focus areas for our maritime cooperation.” The leaders also agreed on establishing a joint mechanism to ensure safety and freedom of navigation in the maritime domain.
                                          Simply put, the statement on the maritime mechanism is significant as it is the first time that India has taken up forming of a special maritime mechanism with all the ASEAN heads of states at a single summit. A joint statement that was issued after the plenary session of the Commemorative Summit stated that maritime security and freedom of navigation featured prominently in the ‘Delhi Declaration’. The declaration indicated at common concern pertaining to the South China Sea and reaffirmed the “importance of maintaining and promoting peace, stability, maritime safety and security, freedom of navigation and overflight in the region and other lawful uses of the seas and unimpeded lawful maritime commerce.”
                                       No doubt, just like the presence of US President Barack Obama as the Chief Guest at Republic Day in 2015 sent a signal to the rest of the world, the ASEAN leaders participation has a resonance of its own and the whole world has taken notice of this also. Former Ambassador K Shankar Bajpai said that, “As far as India is concerned, we have a tradition to invite a guest of honour as chief guest for the Republic Day parade of 26 January. But so far we have not done something like inviting 10 leaders for a diplomatic engagement on this day.” Former External Affairs Minister Natwar Singh also while welcoming the hosting of 10 chief guests at the Republic Day Parade said that it is a unique event. He said that, “We have hosted multiple heads of states as in 1983 when we hosted the NAM summit and more recently in the India-Africa Summit. But this event is unique as it comes in the context of major changes in the regional order.”
                                     It is heartening to note that Delhi Declaration has called for joint fight against terror. The ASEAN-India Commemorative Summit also came out with a comprehensive statement targeting terrorism and agreed to uphold freedom in the maritime domain. Focusing on the presence of the Islamic State and other forms of radicalism in the region, a joint statement, titled ‘Delhi Declaration’, issued after the plenary session, supported a common approach to counter terrorism and sought a “comprehensive approach to combat terrorism through close cooperation by disrupting and countering terrorists, terrorist groups and networks, including by countering cross border movement of terrorists and foreign terrorist fighters and misuse of Internet including social media by terror entities.”
                                             It is beyond a straw of doubt that out of all the countries of ASEAN region, Philippines had the most serious threat from the Islamic State in the last few years and the bilateral discussion focused on this aspect. Preeti Saran who is Secretary in charge of Eastern Affairs while highlighting the support that Philippines received from India to counter the Islamic State terrorists who had taken over the city of Marawi in Philippines where a battle was waged by the Philippines military forces said that, “President Duterte conveyed his deepest appreciation for the $500,000 assistance that was provided by India to resettle victims of the Marawi siege.” A joint working group meeting is likely to be held between the two countries to finalise details of counter-terror cooperation between Delhi and Manila.
                                           Of course, the issue of security identity cards for the citizens, on the lines of the Aadhaar card of India also came up during the bilateral discussion with Philippines. Ms Saran said that, “A team from Philippines was here last week to study the Aadhaar card of India.” It is great to note that Philippines too has been greatly influenced by the Aadhaar card of India and wants to start it after studying it in India and understanding it comprehensively.
                                           It must be underlined here that the security scenario in the Rakhine province was also discussed between Prime Minister Narendra Modi and Aung San Suu Kyi who is the State Counsellor of Myanmar and Modi conveyed his concern on the huge security challenges confronted by India in the wake of the influx of thousands of Rohingyas refuges to India since last few years! Both sides discussed the housing project that India would build to rehabilitate the Rohingyas. India is serious in building houses for Rohingyas but wants them to go back to Myanmar.
                                        After the meeting between Modi and Suu Kyi, Raveesh Kumar tweeted, “The two leaders had a productive discussion on intensifying bilateral cooperation, including a follow up on key decisions taken during PM’s visit to Myanmar in September 2017.” The meeting came nearly a month after India and Myanmar inked an agreement on restoration of normalcy and development of the Rakhine state and days after Bangladesh and Myanmar agreed on repatriation of Rohingyas. Signed during Foreign Secretary S Jaishankar’s visit to Myanmar, the pact was the first government-to-government agreement by Myanmar with a cooperation focused on socio-economic development in the Rakhine state.
                                    It must be added here that India and Cambodia signed four agreements ranging from prevention of human trafficking, Mutual Legal Assistance in Criminal Matters to Culture. In addition, India will provide soft loans through Line of Credit (LoC) to finance the ‘Stung Sva Hab Water Resource Development Project’ worth $36.92 million. The two countries have also decided to strengthen their defence cooperation through capacity building and exchanges of senior level personnel.
                                       Apart from this, India will also help set up a Centre for IT excellence in Cambodia. The two sides also agreed on a $20 million concessional LoC by India for construction of transmission line in Cambodia. India has offered additional LoC for infrastructural projects in Cambodia, including in health sector for setting up of super speciality hospitals and for road, rail and digital connectivity.
                                       To put things in perspective, this is the first visit by a Cambodian PM in the last ten years. PM Modi and Cambodia’s PM Hun Sen agreed to explore the possibility of extending the India-Myanmar-Thailand Trilateral Highway further to Cambodia and beyond. In his joint statement, Modi said that there was an agreement on strengthening relations in every sector.
                                        Not stopping here, Modi also said that, “India and Cambodia will build up on relations in every field, including economic, social development, capacity building, business, culture and tourism. We are ready to further strengthen our relations with Cambodia in the coming future.” On his part, Sen appreciated India’s LoC and grants-in-aid for developmental projects in Cambodia, restoration and conservation of temples, capacity building programmes, scholarships and funding for social development through Quick Impact Projects (QIPs) under Mekong Ganga Cooperation initiative. India would increase the number of QIPs from 5 to 10 annually in Cambodia.
                                        It is imperative to mention here that Modi also mentioned Archaeological Survey of India’s efforts in the restoration on Angkor Wat and Ta Prohm Temples in Cambodia. Modi also said that it is part of their joint cultural heritage and an example of cooperation between both nations. Besides, he also reaffirmed India’s commitment to undertake restoration and conservation work at the ancient temple of Lord Shiva at Preah Vihar.
                                        In their joint statement, both sides expressed interest in enhancing cooperation in maritime domain. The joint statement said that, “They support complete freedom of navigation and overflight and pacific resolution of maritime issues based on international law, notably the 1982 UNCLOS.” On terrorism, they called upon all nations to adopt a comprehensive approach in combating terrorism, which should include countering radicalisation, recruitment, movement of terrorists, including foreign terrorist fighters. They called for blocking sources of financing terrorism supply of weapons of mass destruction, drug trafficking and other criminal activities besides dismantling terrorist bases, and countering misuse of the internet including social media and information and communication technologies by terrorist entities.
                                                Describing terrorism as a “curse” on humankind which poses a “grave threat” to global peace, security and stability, the leaders unequivocally and unanimously condemned terrorism in all its forms and manifestations. According to a joint statement, they underscored that there was no justification whatsoever for acts of terrorism and recognized that terrorism could not be and should not be associated with any religion, nationality, civilization or ethnic groups. Reaffirming their resolve to fight terrorism, the two leaders affirmed that those responsible for committing, abetting, organising and supporting terrorist acts must be held accountable and be punished.
                                It must be appreciated here that in separate meetings, leaders from Vietnam, Philippines and Myanmar “underscored the importance of ASEAN-India relations for peace, security and socio-economic development in the Indo-Pacific region”. Indian President Ram Nath Kovind who hosted the leaders for a luncheon, said that India stands “shoulder-to-shoulder” with ASEAN in pursuit of a rules-based regional architecture that is open, inclusive and equitable. PM Modi also conveyed that, “ASEAN is the fulcrum of India’s Act-East policy”.
                                    It needs no rocket scientist to conclude that relations between India and ASEAN have come a long way in the last 25 years! The highest culminating point has been the presence of all the 10 ASEAN leaders as chief guests in the Republic Day Parade. It is for the first time that the ASEAN flag fly in the sky over Rajpath on 26 January, 2018.
                                     It must be highlighted here that in an unprecedented move to promote India-ASEAN ties under New Delhi’s Act East Policy, the Prime Minister Narendra Modi announced prior to the announcement of the Republic Day Awards that Padma Shri which is India’s fourth highest civilian award would be awarded to one achiever from each of the regional bloc’s 10 member states. Stating that “in an unprecedented and symbolic gesture” of India-ASEAN bonding and on the occasion of silver jubilee of the India-ASEAN Dialogue Partnership and India’s Republic Day, External Affairs Ministry spokesperson Raveesh Kumar tweeted that Modi “announced Padma Shri award for one individual from each ASEAN country”. Those achievers who have been named for the award ahead of the Republic Day Parade are – Haji Abdullah Bin Malai Haji Othman of Brunei for medicine, Hun Many of Cambodia for public affairs, Nyoman Nuarta of Indonesia for art, Bounlap Keokangna of Laos for art; Thant Myint-U of Myanmar for public affairs, Jose Ma Joey Concepcion of the Philippines for trade and industry, Tommy Koh of Singapore for public affairs, Somdet Phra Ariya Wongsa Khottayan of Thailand who is the Supreme Patriarch of Thailand and Nguyen Tien Thien of Vietnam who is the Secretary General of the National Vietnam Buddhist Sangha.  
                                            All said and done, the visit of all these 10 ASEAN leaders to India was very fruitful and historic. PM Narendra Modi thanked all of them for coming to India and they too expressed their gratitude for inviting them as chief guest at the prestigious Republic day parade. A lot of ground has been covered in the relations between India and ASEAN but still a lot more remains to be done and they have all collectively appreciated this and vowed to further improve the relations between them and take them to greater heights!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

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

Coming straight to the nub of the matter, the Delhi High Court on January 29 issued a notice to the Delhi Government and also to the Delhi Police on a plea of Delhi High Court Bar Association (DHCBA) seeking an SIT probe in the dastardly attack on lawyers of DHCBA in separate incidents in January. The Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar directed that the report should be filed under the signature of a senior police officer, which shall be shown to the Delhi Police Commissioner. It directed that the report should be filed in two days as the incidents warrants swift and necessary action.
                                          As it turned out, a plea has been moved before the Delhi High Court seeking a court-monitored SIT probe into the attacks on the lawyers, besides guidelines for advocates security.
                                             Truth be told, in a dastardly attack on three cars belonging to two senior lawyers were torched while cars and an office building of their colleague were attempted to be set on fire allegedly by miscreants in three separate incidents between January 4 and January 22. What is most disconcerting to note is that the three senior lawyers includes Kirti Uppal who is the President of Delhi High Court Bar Association and Vikas Pahwa who has been a senior counsel of the Government and has also been conducting cases both in the Delhi High Court and the Supreme Court. This has shaken lawyers not just in Delhi but all across the country!  
                                                Let me say this most categorically: If there is one High Court which is reputed for seldom going to strike, it is none other than Delhi High Court. It is only when something very serious happens that Delhi High Court Bar Association decides to go on complete strike. One such rare occasion was on 25 January, 2018. That is why even I was awestruck on reading in the news that the Delhi High Court Bar Association has called for strike on 25 January.
                                Sure enough, there were compelling reasons for the lawyers of Delhi High Court to go on a complete strike on 25 January. The Delhi High Court Bar Association resolved to abstain from work on Thursday, i.e. 25 January, as a mark of solidarity against a recent  dastardly attack on two senior and eminent advocates of the Delhi High Court – Kirti Uppal and Vikas Pahwa. As per a resolution passed by the Executive Committee of the Delhi High Court Bar Association, another attack had been staged against advocate Ravi Sharma, when two of his vehicles parked in the courtyard of his house were burned.
                                       Be it noted, these three advocates who have been attacked have together been supporting firmly the cause of a lady advocate. What wrong have they done? They were just discharging their professional duty and who can it understand better than them who have spent decades in this noble profession?
                                    Truly speaking, the matter reportedly pertains to lodging of a stalking case against a woman lawyer, who was then allegedly dragged out of her residence by the city police to arrest her despite court orders against coercive action. This is reprehensible! What is even more despicable is that the lawyers are now being themselves personally attacked!
                                       What can be more disgraceful than this! This should not have happened at the first instance! How will courts function normally if advocates themselves are subjected to personal attacks and even their vehicles are not spared?     
                                      As per the resolution of the Executive Committee of the Delhi High Court Bar Association, even though the FIRs have been registered by the lawyers, the attitude of the police “looks lackadaisical and deliberate protracting”. The police must wake up its ideas! This is a very serious charge!
                                          Needless to say, Delhi police must go all out to make the necessary amends in this direction and ensure that the culprits who attacked the lawyers are swiftly brought to book and strictly punished in accordance with the law! Delhi High Court Bar Association is reputed all over the world for always working in the most professional manner! What is said by its Executive Committee has to be taken most seriously by the Delhi police and steps must be taken by it promptly to restore the faith of the lawyers of Delhi High Court in the police!
                                          To put things in perspective, the resolution of the Executive Committee of the Delhi High Court Bar Association then asserts that, “The Executive Committee is unanimous of the view that the present situation is an extra ordinary in nature in as much as these heinous acts have been executed with the intention to overawe and strike terror in our community by using inflammable substances, in a manner so as to cause injuries or loss of life and damage/destruction of property in order to terrorize the Advocates to refrain from performing their professional duties. The Executive Committee feels that this act of terror threatens the statutory duty of lawyers to conduct themselves fearlessly and with dignity in defending a client.”
                                            To be sure, The Executive Committee also feels that inspite of registration of these FIRs by the lawyers and personal meeting of the Members of the Committee with the Police at the highest level apprising them about the nexus and also providing them with the CCTV footages of these criminal acts, adequate and proper attention is not being given to the matter and their approach looks lackadaisical and deliberately protracting.  The Committee further states that Proxy Counsels have been appointed for every Court and a list will be displayed on the notice boards as well as outside every Court room.”   
                                   Who can deny that attacks on lawyers in past few years have increased manifold? But what is most concerning to note is that now even the lawyers and that too senior and eminent lawyers like Vikas Pahwa and others are not safe even while practicing in the High Court and Supreme Court! The lawyers of Meerut are most concerned for his safety apart from Delhi because his father – KK Pahwa too is an eminent criminal lawyer in Meerut Bar and I consider myself fortunate to having interacted with him some years ago! Moreover, Vikas Pahwa is a legal luminary whose articles keep coming even in national newspapers like ‘The Times of India’ which I have the privilege of reading myself even though I have not personally met Vikas Pahwa ever till now! But he and his father are always appreciated and held in highest esteem by the lawyers here!   
                                                Anyway, coming back to the main subject, the Executive Committee of the Delhi High Court Bar Association of which senior advocate Vikas Pahwa is also a member on January 24 passed a resolution condemning the attacks on 9th and 22nd January on the properties and cars of senior advocates Pahwa and Kirti Uppal who is also the President of Delhi High Court Bar Association by using inflammable substances. Not just this, a similar incident the lawyers claimed had taken place on 4th January when the two cars – Maruti Swift and Honda Amaze which were parked in the east Delhi house of advocate Ravi Sharma were torched by unidentified persons. Police itself admitted that attempts were made to set ablaze Vikas Pahwa’s Greater Kailash office building and cars on 9th January!   . 
                                          Vikas Pahwa who is also a member of the Executive Committee revealed that, “There is a complete ban. No advocate appeared in courts and no evidence was recorded in any case. We are holding a peaceful protest and have removed our bands. The Bar is also preparing a writ petition seeking an SIT probe into the incident.” Who can question this demand for SIT probe? There must be SIT probe and truth must come out as to who all are behind this dastardly attack on three eminent and senior lawyers of Delhi High Court. All the shops in the court complex are also shut following the Bar’s call and even Judges left their chambers on seeing the lawyers strike!
                                Advocate Vikas Pahwa’s Greater Kailash office building and parked cars were attempted to be set on fire on January 9. He said such acts of mischief were done to intimidate him. An FIR was registered on January 11 on Pahwa’s complaint. On January 22, Kirti Uppal’s Hyundai Tucson car that was sparked outside her house in South Delhi’s Nizamuddin West was set on fire by unidentified miscreants, according to the FIR registered.
                              Vikas Pahwa also disclosed that the stilt area of the house was also damaged in the fire. Before the arson attempt at his office building, Pahwa said that two cars – Maruti Swift and Honda Amaze which belonged to advocate Ravi Sharma were set on fire by unidentified miscreants on January 4. The cars were parked at Sharma’s Dayanand Vihar home in East Delhi. Vikas Pahwa also revealed while quoting the FIR filed at the Anand Vihar police station that, “Footage from the CCTV of Sharma’s neighbour showed a man driving a car stopping outside Sharma’s house and throwing something on his cars in flames.”
                                             It goes without saying that the lawyers all across India stand firmly and fully with these 3 senior and eminent advocates of Delhi High Court in this hour. If lawyers who are the officers of the court are themselves attacked in this dastardly manner and the guilty are not quickly brought to book and the Delhi High Court Bar Association finds that police is displaying a total lackadaisical approach then who will defend fearlessly the litigants in courts? This is a very serious question and the police, Centre and Delhi government need to honestly introspect on this!
                            Needless to say, it is the bounden duty of both Centre and Delhi government to ensure that full protection is given especially  to senior lawyers so that no harm is caused to them or to their property in any manner! They must not back away from it! Who is safe if lawyers themselves are not safe and that to in our national capital? No one!
                                     It needs no rocket scientist to conclude that the strike by lawyers of Delhi High Court on January 25 stands fully and firmly justified! It was imperative to highlight the attention of the government to make serious efforts in this direction and to also ensure that police gets rid of its complacency that is too visible in this entire case! One fervently hopes that the police will at least now take suitable action to bring the culprits to book as soon as possible and the lawyers of Delhi High Court would not be compelled to once again go on fresh strike pressing for their demands!      
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.  

Khap Attacks On Couples Illegal: SC

As my pen starts running, I must note right now with great satisfaction that the Supreme Court on January 16 warned strongly in no uncertain terms that it would step in if the government didn’t bring a law to ban illegal activities of khap panchayats, saying no one had the right to question an adult’s choice of a marriage partner. Why government is always quick to label judiciary as crossing its Laxman Rekha and trying to tread in the territory which belongs exclusively to the executive but does nothing on its part even when the writing on the wall is clear? Why government displays complete inaction for decades but when judiciary tries to step in then spares no time in terming it as “judicial activism”?
                                    While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Apex Court said explicitly that, “Attacks on those opting for inter-caste marriage were absolutely illegal and khap panchayats cannot threaten adult women and men for marrying each other.” When an adult men and women are ready to both marry each other with consent then what business do khap panchayats have to poke their nose in between? How can attack by anyone at the behest of the khap panchayats be justified under any circumstances?
                             For my esteemed readers exclusive indulgence, let me also inform them that a Bench of Supreme Court led by Chief Justice of India (CJI) Dipak Misra minced no words in sending out very firmly a loud and clear message that, “If they are not bringing a law, we will develop the concept and see to that these types of illegal activities are not carried out.” This was observed by the Bench led by the CJI while sparing no punches in pulling up the government for not responding to an eight-year-old petition seeking a ban on khap panchayats. What the Bench of Apex Court led by the CJI has said is absolutely right!
                                          To put things in perspective, khaps are caste or community groups that wield considerable influence especially in rural areas of north India. They are notorious for holding kangaroo courts that dissolve marriages, dictate dress code, mostly to women, ban cellphones and even force rape victims into marrying rapists. They openly threaten with dire consequences all those who dare to disobey their whimsical orders which includes social boycott, expulsion from a village etc. It is known very well that these khap panchayats very strongly oppose inter caste and inter faith marriages and those who still dare to do it are sometimes murdered also and in many are terrorized by beating them brutally!
                                      How can all this be allowed to go on indefinitely? Why have the khap panchayats been allowed to have their say on not just all important but also all trivial issues? Why did the government make no law to check this menace  swiftly and strictly? Is the government not guilty of complete inaction on this score thus compelling the judiciary to step in?   
                               It is noteworthy that khaps by virtue of enjoying tremendous political clout among all major political parties brazenly order attack on any couple who dare to marry inter-caste or inter-religion thus making a complete mockery of the legal and constitutional rights conferred by our legal system to all adults of marrying whomever they want and whenever they want with their own free choice! When the Bench of the Apex Court took up the matter, a khap leader present in the court said that it was incorrect to term the village body illegal.
                                    Going forward, the khap leader also urged that khaps were changing and should be heard before passing an order. The Supreme Court Bench also made it loud and clear that, “What we are concerned is about the rights of an adult girl or boy. They can get involved in a marriage. No panchayat, individual, society or parents can question it.” All these so called khap panchayats, individuals, society and parents must fully understand and appreciate what the Bench of Apex Court has said so categorically.
                                 Needless to say, the Apex Court has explicitly made it illegal for extra-constitutional organizations like the khap panchayats, society, a group of individuals and parents from forcing their marital choices on couples without their consent. When the khap leader said that panchayats were playing a crucial role to usher in change, the CJI Dipak Misra said that, “The changes don’t take in a regressive manner.” Absolutely right!
                                     To be sure, senior counsel Raju Ramachandran, who is assisting the court in the matter has already submitted a report. Raju took the right stand that khap panchayats were influential and the court should take steps to control them. In a list of suggestions, Raju has said that state governments should identify districts, sub-divisions and/or villages that have reported instances of so-called honour killing or khap panchayats assemblies.
                         It was also observed that a superintendent of police must at regular intervals issue directives to the officer-in-charge of police stations to be extra cautious if any instance of inter-caste or inter-religious marriage comes to notice. Raju also said that a local police station should immediately inform the district police chief on getting to know about a khap gathering. The Supreme Court explicitly told Additional Solicitor General Pinky Anand who represented the Centre that if the government would not come out with its suggestions then the court would pass an order on those given by Ramachandran.
                                 Truth be told, Pinky Anand then sought three weeks to respond to the suggestions that was granted by the court which will now hear the case on February 5. A non-government organisation, Shakti Vahini had filed a public interest litigation (PIL) in 2010 demanding a ban on khap panchayats. The PIL had highlighted specifically that khaps were against inter-caste and intra-caste, as a result several people had been killed in the name of honour.
                                  All said and done, even if now Centre didn’t ban illegal activities of khap panchayats then it has no moral right to accuse the judiciary for stepping in as the Apex Court has warned also of doing so! Supreme Court must be applauded for sending the right message to Centre in no uncertain terms and for also making it absolutely clear that khap attacks or attacks by anyone else on couples is illegal and cannot be justified under any circumstances! It also has made clear that adult couple have every right to marry as per their choice and who are these khap panchayats to intervene in between when it is none of their business to do so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Strike By Delhi High Court Bar Association On 25 January

Let me say this most categorically: If there is one High Court which is reputed for seldom going to strike, it is none other than Delhi High Court. It is only when something very serious happens that Delhi High Court Bar Association decides to go on complete strike. One such rare occasion was on 25 January, 2018. That is why even I was awestruck on reading in the news that the Delhi High Court Bar Association has called for strike on 25 January.
                                Sure enough, there were compelling reasons for the lawyers of Delhi High Court to go on a complete strike on 25 January. The Delhi High Court Bar Association resolved to abstain from work on Thursday, i.e. 25 January, as a mark of solidarity against a recent  dastardly attack on two senior and eminent advocates of the Delhi High Court – Kirti Uppal and Vikas Pahwa. As per a resolution passed by the Executive Committee of the Delhi High Court Bar Association, another attack had been staged against advocate Ravi Sharma, when two of his vehicles parked in the courtyard of his house were burned.
                                       Be it noted, these three advocates who have been attacked have together been supporting firmly the cause of a lady advocate. The matter reportedly pertains to lodging of a stalking case against a woman lawyer, who was then allegedly dragged out of her residence by the city police to arrest her despite court orders against coercive action. What is even more despicable is that the lawyers are now being themselves personally attacked!
                                       What can be more disgraceful than this! This should not have happened at the first instance! How will courts function normally if advocates themselves are subjected to personal attacks and even their vehicles are not spared?     
                                      As per the resolution of the Executive Committee of the Delhi High Court Bar Association, even though the FIRs have been registered by the lawyers, the attitude of the police “looks lackadaisical and deliberate protracting”. The police must wake up its ideas! This is a very serious charge!
                                          Needless to say, Delhi police must go all out to make the necessary amends in this direction and ensure that the culprits who attacked the lawyers are swiftly brought to book and strictly punished in accordance with the law! Delhi High Court Bar Association is reputed all over the world for always working in the most professional manner! What is said by its Executive Committee has to be taken most seriously by the Delhi police and steps must be taken by it promptly to restore the faith of the lawyers of Delhi High Court in the police!
                                          To put things in perspective, the resolution of the Executive Committee of the Delhi High Court Bar Association then asserts that, “The Executive Committee is unanimous of the view that the present situation is an extra ordinary in nature in as much as these heinous acts have been executed with the intention to overawe and strike terror in our community by using inflammable substances, in a manner so as to cause injuries or loss of life and damage/destruction of property in order to terrorize the Advocates to refrain from performing their professional duties. The Executive Committee feels that this act of terror threatens the statutory duty of lawyers to conduct themselves fearlessly and with dignity in defending a client.”
                                            To be sure, The Executive Committee also feels that inspite of registration of these FIRs by the lawyers and personal meeting of the Members of the Committee with the Police at the highest level apprising them about the nexus and also providing them with the CCTV footages of these criminal acts, adequate and proper attention is not being given to the matter and their approach looks lackadaisical and deliberately protracting.  The Committee further states that Proxy Counsels have been appointed for every Court and a list will be displayed on the notice boards as well as outside every Court room.”   
                                   Who can deny that attacks on lawyers in past few years have increased manifold? But what is most concerning to note is that now even the lawyers and that too senior and eminent lawyers like Vikas Pahwa and others are not safe even while practicing in the High Court and Supreme Court! The lawyers of Meerut are most concerned for his safety apart from Delhi because his father – KK Pahwa too is an eminent criminal lawyer in Meerut Bar and I consider myself fortunate to having interacted with him some years ago! Moreover, Vikas Pahwa is a legal luminary whose articles keep coming even in national newspapers like ‘The Times of India’ which I have the privilege of reading myself even though I have not personally met Vikas Pahwa ever till now! But he and his father are always appreciated and held in highest esteem by the lawyers here!   
                                                Anyway, coming back to the main subject, the Executive Committee of the Delhi High Court Bar Association on January 24 passed a resolution condemning the attacks on 9th and 22ndJanuary on the properties and cars of senior advocates Vikas Pahwa and Kirti Uppal who is also the President of Delhi High Court Bar Association by using inflammable substances. Not just this, a similar incident the lawyers claimed had taken place on 4th January when the two cars – Maruti Swift and Honda Amaze which were parked in the east Delhi house of advocate Ravi Sharma were torched by unidentified persons. Police itself admitted that attempts were made to set ablaze Vikas Pahwa’s Greater Kailash office building and cars on 9th January!   . 
                                          Vikas Pahwa who is also a member of the Executive Committee revealed that, “There is a complete ban. No advocate appeared in courts and no evidence was recorded in any case. We are holding a peaceful protest and have removed our bands. The Bar is also preparing a writ petition seeking an SIT probe into the incident.” Who can question this demand for SIT probe? There must be SIT probe and truth must come out as to who all are behind this dastardly attack on three eminent and senior lawyers of Delhi High Court. All the shops in the court complex are also shut following the Bar’s call and even Judges left their chambers on seeing the lawyers strike!
                                             It goes without saying that the lawyers all across India stand firmly and fully with these 3 senior and eminent advocates of Delhi High Court in this hour. It is the bounden duty of both Centre and Delhi government to ensure that full protection is given especially  to senior lawyers so that no harm is caused to them or to their property in any manner! They must not back away from it! Who is safe if lawyers themselves are not safe and that to in our national capital? No one! Needless to say, the strike by lawyers of Delhi High Court on January 25 stands fully and firmly justified and it was imperative to highlight the attention of the government to make serious efforts in this direction and to also ensure that police gets rid of its complacency that is too visible in this entire case!    

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.     

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

How can Karni Sena made up of few totally orthodox self-styled Rajputs no matter what the provocations are indulge in ordering its members to forcibly stop showing of film Padmaavat? How can they decide that which film is to be shown and which film is not to be shown? How can they decide that what should be shown in a film and what should not be shown in a film?
                                            How can members of Karni Sena or any other member of any other group issue a reward of Rs 5 crore or 10 crore on the nose of Deepika Padukone as has been done actually? How can they still continue to roam free and be at large without being arrested by police or anyone else? How can they attack buses of children going to schools threatening the very safety of innocent children and scare them to the extent that we can’t even dream of and vandalize the buses in which the children are travelling as has happened actually at many places and still be at large?
                                        How can they vandalize cinema halls, burn vehicles whichever comes their way and yet police sees everything like a mute spectator? How can Karni Sena overrule Central Board of Film Certification (CBFC) which has cleared the film after making the necessary  cuts and order its members to make sure that it is not shown in any cinema hall? How can Karni Sena even overrule Supreme Court which has directed States to ensure that the film Padmaavat is shown without being restricted? How can Karni Sena be above the law of the land and do whatever it feels like without any fear of anything? How can Karni Sena proclaim that above Supreme Court there is the court of the people and with the help of their people who are nothing but goons will ensure that the order of Supreme Court which is the highest court of the land is blatantly disregarded?
                                                How can Karni Sena members beat up anyone who wants to see the movie Padmaavati and yet not be arrested by the police? How can the state administration turn a blind eye to the open violence cycle perpetrated by Karni Sena in roads, streets, cinema halls, shops and anywhere they feel like and just condemn it by indulging in nothing but only and only lip service meant for public consumption? How can Karni Sena block roads, highways, burn vehicles, smash vehicles and indulge in violence, arson and loot without being stopped by the police in any manner?
                                                    How can Karni Sena order any person to not see the movie which they feel has insulted their culture? How can Karni Sena openly threaten naked violence and destruction and yet not be arrested promptly? How can Karni Sena mock at our laws and openly dictate that what they decide will operate as law and nothing else can replace it?
                                          How can Karni Sena suddenly emerge out of the blue and start vandalism and violence wherever they want to stop the film Padmaavati from being screened? How can Chief Ministers of the State ignore their Constitutional duty and allow Karni Sena to do whatever they want? How can Karni Sena declare that they will burn all those cinema halls wherever the film Padmaavati is being screened?
                                            How can Karni Sena members openly wave weapons on streets and burn vehicles and vandalise any shop, mall etc wherever they want on the pretext of opposing the film Padmaavat? How can Centre and all those States where this open orgy of unrestricted violence is panning out tolerate all this quietly? How can Karni Sena brutally burn vehicles, injure people, smash toll plazas, burn cinema halls, vandalise shops and do whatever they like as has actually been happening not just in small cities but even in big cities like Ahmedabad and others?                
                                           How can Karni Sena members openly throw stones and injure school children as we saw in Gurugram, etc and yet not be arrested? How can Karni Sena members openly threaten cinema hall owners all over the country to not show the film Padmaavat and if they dare to do then their cinema halls will be vandalized and burnt down as has happened also in different parts of India? How can Karni Sena members claim that they will do this openly and State government and Centre will not be able to do anything to stop them?
                                                   How can Centre and State tame surrender itself in front of Karni Sena and abdicate their legal obligation to provide safety to the cinema hall owners as well as the people from being harassed by the members of Karni Sena and allow them to do what they want to do with just little or no action on the ground being taken? How can Karni Sena start governing the country without being elected or without fighting even a single election? How can Karni Sena start behaving like the dictators and order that no one can disobey what they order and law also has to bend in front of them?            
                                             How can Karni Sena behave like super PM and super CM and dictate what movie the people will see and what movie they will not see? How can Karni Sena order cash rewards for killing or maiming the actor and actresses who shooted in the film Padmaavati without being even arrested or rebuked by the police or anyone else? How can Karni Sena be allowed to hold the prestige and reputation of our entire country to ransom by openly making a mockery of the elected government both in the Centre and in the States and threatening to do all such acts which are not just illegal but a crime?
                                   At a time when PM Narendra Modi is trying to enhance the country’s image at Davos while attending the World Economic Forum, what message is Karni Sena sending? Who would like to invest in India if untrammelled violence by Karni Sena is allowed to go on like this which should have been contained at the first place? How can Karni Sena be above the law of the land?
                                             No organization can so brazenly disregard all rules and regulations and impose their own Talibani farmaan because if Karni Sena is today allowed to do so then tomorrow many more organizations representing different religions and castes can also start imposing their own brazen diktats and start indulging in huge violence, mayhem and destruction if their whimsical orders are not complied with fully! The members of such fringe groups like Karni Sena should have been arrested well in time as a precautionary measure and released only after it was ensured that the film has operated peacefully! But, most unfortunately, this was not done and the consequences are there for all of us to see for ourselves!
                                              Needless to say, Centre as well as State Governments wherever violence breaks out on a large scale cannot escape from their liability of failing to act well in time to prevent the huge violence that breaks out within no time when members of such radical groups like Karni Sena start assembling on the roads in huge numbers and with dangerous weapons in their hands! It is the duty of the Centre and the State Governments to provide security to the people who want to see films and ensure that vandalizers and anti-social elements are not allowed to have the last laugh by indulging in unrestricted violence and looting – all in the name of protecting the culture of Rajputs! Even I myself don’t favour distortion of history by making such controversial films like Padmaavat which has generated so much of controversy and will never see this film but violence and vandalism in the name of protecting culture is just not acceptable!  
                                        This is just not done! It cannot be justified under any circumstances! When we can not just tolerate but accord red carpet welcome to Pakistani invader Gen Musharraf who masterminded Kargil war in which we lost more than 600 soldiers and that too just after 2 to 3 months of the Kargil war and who presented Rs 1 lakh cash prize to dreaded Al Qaeda terror leader Iliyas Kashmiri for presenting him a severed head of an Indian soldier Bhausaheb Maruti Talekar as was reported also in all English dailies and hailed terrorists as freedom fighters and had even threatened to nuke India during Kargil war and even after attack on Parliament was contemplating to do so then  why can’t we be similarly tolerant of the film Padmaavat and its producer Sanjay Leela Bhansali who is not a Pakistani invader like Gen Musharraf who himself conceded that he had entered about 15-16 km inside Indian  territory during Kargil war just the night before war began to boost his soldiers morale to brutally kill Indian soldiers like Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment were killed after mercilessly torturing them for 22 days maiming them, blinding them and not sparing even their private parts and then finally shooting them on their heads and those Pakistani soldiers who did all this were rewarded by Gen Musharraf? Still why we never see such anger against Gen Pervez? Gen Pervez was even honoured by many big media houses yet we didn’t see any anger anywhere that time!  Honour for Gen Pervez Musharraf and hatred for Padmaavat cannot be justified under any circumstances! I strongly condemn it in strongest words!   
                                          Such despicable and barbaric acts which shames us so much internationally cannot be justified under any circumstances and those organizations whose members indulge in such mindless violence must be not just brought to book but also must be made to pay for all the damage done so that no one again dares to indulge in violence and vandalism! But this never happens because of lack of political will! Not just this, the main reason why those indulging in violence are not promptly arrested is that parties don’t want to antagonize any particular class as they constitute a major votebank and doing so will cost them dearly in the upcoming elections! How can self-serving politicians allow this?
                                       This alone explains why supporters of powerful groups like Baba Ram Rahim are able to do what they like without being stopped by police or any other security forces as they are instructed by the political class to not take any action unless they are specifically ordered! We saw how when Baba Ram Rahim was arrested and sent to prison after being sentenced in a rape case, violence erupted on a large scale as his followers were not arrested in time nor stopped from marching to the place where he was being tried! Many innocent people lost their lives as a consequence!
                                         This is what is drastically dragging India backwards and a bold way has to be evolved to deal with it before it engulfs our whole country and endanger the well being and prosperity of our great nation! Centre must now step up the gas and so must all the States and take strictest possible action against those goons who don’t spare even children and school buses in the name of protesting against Padmaavat! If this is not done, even God cannot help our nation from being merged in violence and vandalism which will ultimately destroy our nation!
                                     Can any true Indian ever allow this to ever happen? Certainly not! So we must cultivate compassion and tolerance even for views and persons with which we don’t agree just like we saw when Pakistani invader Gen Pervez Musharraf was accorded a red carpet welcome in India by all major parties and media houses! Violent protests can never be allowed nor should they be allowed by the Centre under any pretext and they cannot be justified under any circumstances! Those who indulge in it must be swiftly arrested and made to pay for all the losses that they have caused! Why protesters never destroy their own property if they are so much angry? Ponder!    
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 

President Upholds AAP MLAs Disqualification By EC

Let me begin at the very beginning by first and foremost pointing out cogently that in a big blow to Delhi’s ruling Aam Aadmi Party (AAP), President Ram Nath Kovind approved the Election Commission’s recommendation to disqualify 20 party MLAs for violating the law against holding the office of profit as Parliamentary Secretaries. This was disclosed in a government notification. This is certainly by all parameters a very big jolt for the AAP which it has been candid enough to admit also and has revealed that it would take legal recourse.
                                          While craving for the exclusive indulgence of my esteemed readers, let me inform them that this landmark step by the President comes two days after the Election Commission submitted its report deeming the AAP lawmakers as “unfit” to continue as MLAs. So the President was left with no option but to disqualify these 20 AAP lawmakers. There can be no denying or disputing this!
                                     For my esteemed readers exclusive indulgence, let me also inform them that under the Government of National Capital Territory of Delhi Act 1991, an MLA cannot hold any post in the Government that entitles them to perks or powers unless a law has been passed to exempt the posts. The disqualification of the 20 lawmakers shall not dent in anyway the Kejriwal’s Government’s majority in the Delhi Assembly. But still it is a big setback for the AAP which cannot be denied!
                     What the law says
                              It is imperative to know what the law says in this regard. Article 102(1)(a) of the Constitution says that a person shall be disqualified from being a member of either House of Parliament if he holds any office of profit, among other grounds. Article 103 says if a question arises whether a member has incurred such disqualification, it will be referred to the President’s decision. The President shall obtain the Election Commission’s opinion and act accordingly. Article 191(1) contain a similar provision for MLAs and MLCs in the States. Legislators in Delhi are covered by corresponding provisions in the Government of National Capital Territory Act, 1991.
                    Office of profit
                               Simply put, the office of profit rule is meant to insulate the legislative from the executive so that people who make laws are not influenced by their positions. The term has not been defined anywhere but the Constitution bans MPs, MLAs from holding positions in the government they are ministers. An office of profit does not necessarily mean financial benefits. Even an administrative position without any financial entitlements can fall foul of this law.  The NCT Act very specifically says that those with office of profit can be disqualified by the President on advice of the Election Commission which is binding. Sonia Gandhi had quit as MP in 2006 and sought re-election since she was NAC chairperson. Also, Samajwadi Party MP Jaya Bachchan lost her seat in 2004 for UP film body position. So what has happened with AAP MLAs is nothing new.
                        Disqualified MLAs
                              Before proceeding ahead, it would be instructive to mention here the names of these 20 AAP MLAs who are facing the axe of the Election Commission of India which recommended to the President to disqualify them! Also, the names of their constituencies and their nearest rivals in 2015 State Assembly polls must be also mentioned. They are as follows: –
Constituency            AAP                  Department
Chandni Chowk  Alka Lamba              Tourism
Dwarka              Adarsh Shastri           I&T
Burari                Sanjeev Jha               Transport
Wazirpur           Rajesh Gupta             Health           
Najafgarh          Kailash Gehlot            Law
Rajinder Nagar Vijender Garg              PWD
Jangpura           Praveen Kumar          Education
Narela               Sharad Kumar           Revenue
Kasturba Nagar  Madan Lal Khufiya     Vigilance
Moti Nagar    Shiv Charan Goyal             Finance
Rohtas Nagar   Sarita Singh                  Employment
Mehrauli       Naresh Yadav                      Labour
Janakpuri     Rajesh Rishi                       Health  
Gandhi Nagar Anil Kumar Bajpai             Health        
Sadar Bazar    Som Dutt                           Industries
Kalkaji       Avtar Singh              Gurudwara Elections
Mundka     Sukhbir Singh Languages & Welfare of SC/ST      
Kondli      Manoj Kumar       Food and Civil Supplies        
Laxmi Nagar  Nitin Tyagi   Women and Child and Social Welfare     
Tilak Nagar Jarnail Singh        Development 
                                   To recapitulate, the controversy over the “office of profit” started soon after the AAP’s victory in the 2015 Assembly elections in Delhi. On March 13, 2015, the Kejriwal Government passed an order appointing 21 MLAs as Parliamentary Secretaries to make them happy. These were those 21 MLAs who could not be appointed as Ministers. So they had to be accommodated somewhere and so they were chipped in as Parliamentary Secretaries!   
                        Biggest turning point
                          
                                       Truth be told, this was challenged by a lawyer Prashant Patel who petitioned President Pranab Mukherjee on June 19, 2015, that these MLAs were holding ‘office of profit’ and should be disqualified. This was the biggest turning point! It is solely and solely because of this young and dynamic lawyer Prashant Patel Umrao just 31 years old that these 20 MLAs have had to leave their seats! Prashant who practices in Delhi High Court and Supreme Court said that, “Today, my hard work of three years has paid off. I believe that the law will finally catch up with the offending MLAs. I am least bothered about whether the AAP government is derailed or not. All I know is law should not be bent.”  The petition was forwarded to the Election Commission for its recommendations. Initially, the petition was directed against 21 MLAs but one of the MLAs – Jarnail Singh of Rajouri Garden had resigned last year to contest against Parkash Singh Badal in the Punjab Assembly elections. So there were then 20 MLAs left.
                                         Needless to say, the notification issued by Law Ministry on January 20 quoted the President stating that the office of Parliamentary Secretaries was not exempted from the ‘office of profit’ rule. The President is bound by the recommendation of the Election Commission. Under the rules, petitions to the President seeking disqualification of MLAs are referred to the Election Commission.
                                       To say the least, the notification issued by Law Ministry quoting the President stated explicitly that, “…Having considered the matter in the light of the opinion expressed by the Election Commission, I, Ram Nath Kovind, President of India, in exercise of the powers…do here hold that the aforesaid 20 members of the Delhi Legislative Assembly stand disqualified from being members of the said Assembly”. It is most hurting to see that AAP has termed President Ram Nath Kovind’s order disqualifying 20 of its MLAs for holding offices of profit “unconstitutional” and “dangerous for democracy”. What President does must be always respected and it cannot be overlooked that the present President Ram Nath Kovind is himself a lawyer who has practiced not just in Delhi High Court but also in the top court that is Supreme Court and so whatever he does it will be only after taking into consideration all the factors and his long experience as a senior lawyer will help him immensely always in coming to the right conclusion!
                              Be it noted, the notification also made it clear that, “In the present case, it is not in dispute that the respondents were appointed as Parliamentary Secretaries to the Ministers of Delhi Government by the order of March 13, 2015. Then, the Delhi High Court in Rashtriya Mukti Morcha set aside this order on September 08, 2016. Thus, it is evident that from the date of their appointment on March 13, 2015 till the date of setting aside their appointment order on September 08, 2016, the respondents were de facto holders of the office of Parliamentary Secretaries, albeit, by way of illegal appointment order and, hence, the present proceedings before the Commission on the question of their disqualification is maintainable and shall continue.” It merits no reiteration that the President’s approval of the Election Commission’s recommendation paves the way for the by-elections in the 20 Assembly seats, giving the Opposition BJP and the Congress a golden opportunity to increase their tally. The BJP has four seats in the House and the Congress has none.  
                                   To put things in perspective, in its recommendations, the Election Commission said that, “…the respondents did hold de facto the office of Parliamentary Secretaries from March 13, 2015 to September 8, 2016 and the interpretation as sought to be put by them on the order dated September 8, 2016 of the Delhi High Court that they did not hold any office is not legally tenable. Hence, without prejudice to the merits of the case, the reference relating to the question of alleged disqualification of the respondents under Section 15(4) of the GNCT of Delhi Act, 1991 for holding the said office survives and is maintainable in respect of all the said respondents, except respondent no. 16 (Jarnail Singh, MLA of Rajouri Garden) who has resigned his office as MLA on January 17, 2017 and even a by-election has been held in April to fill that vacancy in the Delhi Legislative Assembly”.
                                    It cannot be lost on us that in December 2015, the Election Commission issued notice to the petitioner to furnish relevant documents and subsequently, the hearing on the issue started after the MLAs were also served notices asking for their response. The legislators submitted that they had not drawn any pecuniary benefit from the post and therefore, they were not liable to be disqualified. It would be pertinent to note that the issue also  came up before the Delhi High Court which on September 8, 2016 had set aside the appointment of MLAs as Parliamentary Secretaries ab initio as the State government had not taken the concurrence of the Delhi Lieutenant-Governor. The affected MLAs then argued before the Election Commission that Prashant Patel’s petition was rendered infructuous owing to the High Court decision. But in June 2017, the Election Commission held that the legislators did hold de facto the office of Parliamentary Secretaries.  
                                   Let me hasten to add here that in its opinion to the President, the Election Commission had said that, “Whether or not the individual Parliamentary Secretaries had actually derived the benefits or participated in executive functions of the Government is of no relevance” as the Supreme Court in the Jaya Bachchan case had laid down that if the post falls under office of profit, the disqualification is imminent. The Election Commission had also cited several judgments including the case of Tamil Nadu Chief Minister J Jayalalitha whose appointment as Chief Minister was invalidated by the Apex Court in 2001. The Commission had said that it is basing its opinion on judicial pronouncements of the past, the Government of National Capital Territory of Delhi Act and the Constitution. All the 20 AAP MLAs had approached the High Court on January 19 with the Judge adjourning the matter for hearing.
                                     It may be recalled here that soon after sweeping the Delhi elections in 2015, the AAP government passed an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification), Act, 1997 to exempt the post of Parliamentary Secretary from the definition of office of profit with retrospective effect. It may also be recalled that on March 13, the Government had appointed the 21 MLAs as Parliamentary Secretaries, saying that they won’t take remuneration and hence it didn’t fall under the office of profit regulations. It also cannot be ignored that later, the AAP Government tried to push a Bill through Delhi Assembly, giving protection to Parliamentary Secretaries under Office of Profit law. But, the then President Pranab Mukherjee did not give his assent to the Bill and rejected the amendment in June 2015. The same month, an advocate Prashant Patel petitioned the President seeking their disqualification on office-of-profit charge. The petition was referred to the Election Commission.
                                   Responding to allegations that the Election Commission finalized its opinion in the office of profit matter against 20 AAP MLAs without hearing their arguments on the merits of the case, the new Chief Election Commissioner OP Rawat said that the parties had two opportunities to request the Election Commission to hold hearings but they didn’t. When asked about the Election Commission’s last ruling of June 23, 2017, which states that the Commission will intimate the next date of hearing in “due course”, Rawat said that, “These (two) notices were issued only for that (purpose). If they felt the need or imperative for oral evidences, then they should have pointed it out and we would have fixed a date for hearing. But you (AAP) are not talking of that. You are talking of something that is already known to the Commission.” The two notices that Rawat referred to were issued to the party MLAs on September 28 and November 2, 2017, in which they were asked to file their written submissions on the information provided by the Delhi government with regard to the offices of Parliamentary Secretaries.
                      Relevant case laws
                                The Election Commission in its recommendations said that  the Supreme Court in the case of Maulana Abdul Shakur vs Rikhab Chand (1958) had defined the concept of office of profit under the government. The court said the government’s power to appoint a person to an office, or to keep him in that office, or revoke his appointment at its discretion, and payment from government revenues were important factors in determining if one held an office of profit. Payment from a source other than the government revenue was not the decisive factor.
                                 In Pradyut Bordoloi vs Swapan Roy (2001), the Supreme Court outlined the following questions for the test: whether the government makes the appointment; whether the government has the right to remove or dismiss the holder; whether the government pays the remuneration; what are the functions of the holder; does he perform them for the government; and does the government exercise any control over the performance of those functions?  Three other rulings were cited to highlight the grounds on which a distinction between the holder of an office of profit and of a post/service under the government could be made.
                               In Guru Gobinda Basu vs Sankari Prasad Ghosal (1964), the Apex Court said that, “But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on the facts of each case.” The court said the final query was, whether, on account of holding of such office, would the government be in a position to influence him so as to interfere with his independence in functioning as an MLA and/or would his holding of the two offices involve a conflict of interest.
                        It has to be noted that while citing the judgments, the Election Commission said the AAP MLAs were appointed Parliamentary Secretaries by the Delhi government, which exercised control over them. The government had the power to remove them, their work was allocated by Ministers concerned as delegated authority and expenses of their offices were paid from government revenues. The Election Commission then concluded that, “There could be no dispute that the office of Parliamentary Secretary was an office under the government.”
                                Also, when the former President Pranab Mukherjee referred the complaint by lawyer Prashant Patel who way back in March 2015 had complained that these 21 AAP legislators were occupying offices of profit to the Election Commission, it had said in last June that the MLAs “did hold de-facto the office of parliamentary secretaries. A parliamentary secretary assists a minister, and the office comes with perks similar to those that ministers get. Therefore they had to be disqualified and that was done accordingly!     
                           Conclusion
                              All said and done, now that the President has approved the disqualification of AAP MLAs, the 20 assembly constituencies will automatically fall vacant as soon as the President signs the recommendation letter. The elections will have to be held within six months. It is highly unlikely that the High Court or Supreme Court will now after such a long time step in and stay the disqualification as AAP MLAs want.
                               It is notable that the Delhi High Court in September 2015 while reacting to another private petition had struck down the posts of parliamentary secretary in September 2015. It will certainly not be an exaggeration from any angle to say most categorically that, “AAP has just no option but to again gear up for fresh elections in these constituencies”!  
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Why MFN Status For Pakistan Is Still Continuing?

How much more shamelessly our politicians will act? How long will our soldiers and people living in border areas along the long border with Pakistan keep getting killed, their houses get destroyed, their schools get burnt, their hospitals also bombed and worst of all even their religious places not spared and still this Most Favoured Nation (MFN) status for Pakistan keep continuing relentlessly which was unilaterally and shamelessly granted to them way back in 1996? How long will politicians ignore everything and keep ranting against Pakistan from every public platform but doing nothing on the ground to substantiate it except returning the cross fire?
                                                    How long will politicians keep insisting that you can change your friends but not your neighbours? How long will soldiers of Indian Army, BSF and other forces keep getting killed on the border regularly after being targeted by Pakistani soldiers, terrorists fully trained and armed to the teeth by Pakistani Army and yet our politicians will continue maintaining cordial relations with Pakistan? How long will our politicians keep going to Pakistan shamelessly without being even invited and keep kowtowing before them like a pet dog?
                                     How long will our Ministers keep threatening of more surgical strikes knowing it fully well that Pakistan cares a damn and keep firing at our soldiers daily on border areas and keep killing them as also the civilians staying near border continuously? How long will politicians shamelessly ignore the repeated demands by leaders cutting across party lines like Shashi Tharoor of Congress, Subramanium Swamy of BJP, Udhav Thackeray of Shiv Sena, Rajeev Chandrashekhar who is independent MP etc and still do nothing on this score? How long will politicians shamelessly call Pakistan as “Aatankistaan” in UN but do nothing to translate it into reality by declaring Pakistan as “Aatankistaan” as Maulana Mehmood Madani who heads Jamiat-e-Ulema-e-Hind very rightly demanded and stop giving it all concessions and nuking all relations with Pakistan?
                                        Why the hell is MFN status for a rogue country like Pakistan who has been waging relentlessly a proxy war against India still continuing till 2018? Should we all Indians be proud of it? Whom are our politicians fooling by openly attacking Pakistan by lip but doing nothing on ground to totally boycott Pakistan?
                                                  Why attack on our temples like Akshardham, Raghunath, etc fail to shake our politicians who still strongly favour MFN status for Pakistan and feel it must continue at any cost come what may? Are we slaves of Pakistan? Then why inspite of facing so many casualties by proxy war sponsored directly by Pakistan are our politicians determined that lives of soldiers and people cannot be above Pakistan and so MFN status for Pakistan must continue unrelenting and unabated?
                                   Why even our national media is so conspicuously silent on it and hardly raises it forcefully? Is there some external power who is behind all this? How can we be so insensitive and nonchalant towards the suffering and brutal killings of people living close to border areas and soldiers?             
                                    Why is India keeping an army of Pakistani diplomats and not sending them off to Pakistan until and unless cross border terrorism stops completely? Why inspite of NIA disclosing that Pakistani diplomats were funding separatists and terrorists to carry out more terror attacks in India still no strict action is being taken on the ground by expelling them all from India? Why are Pakistani diplomats and ex-diplomats allowed to fish in troubled waters by allowing them access to politicians of India, former Army Chiefs of India etc as we witnessed during the recent Gujarat Assembly polls?      
                                       Why inspite of attack on our Parliament, Red Fort and other places of national importance by terrorists trained and sponsored directly by Pakistan are our politicians very firm that MFN status for Pakistan must continue uninterrupted which cannot be disturbed under any circumstances? Is there some grain of truth in what Vineet Narain alleged way back in 1995-1996 that politicians of India receive unaccounted money from foreign countries by Hawala route as was testified even in Jain diaries but  which was not pursued to the end? Is this is what compels our politicians to look the other way and still keep ensuring that MFN status for Pakistan continues uninterrupted and unabated?   
                                          Why even repeated terror attacks sponsored directly by Pakistan and executed by terrorists trained and armed and paid by Pakistan on our financial capital Mumbai as well as administrative capital Delhi and many other cities all across India are our politicians very firm that MFN status for Pakistan must continue and it cannot be withdrawn under any circumstances? Why politicians are not ready to declare Pakistan a “rogue and a terror sponsor country” even though it keeps pleading in UN and also in talks with other countries to do the same? Is it just because of the old adage that, “When money speaks truth is silent?”
                                            What else is the reason behind politicians not withdrawing MFN status from Pakistan and instead placing it in “rogue country status”? Why can’t politicians really speak out on this? Why don’t they speak out when they have nothing to hide from the people as they time and again make tall claims? Can any politician come out in the open and explain on this?
                                         Why inspite of losing lakhs of soldiers and millions of people to proxy war directly sponsored by Pakistan are we not behaving like a tiny country called Kuwait who has not lost so many lives but still has decided to expel all Pakistanis from Kuwait as there are a direct threat according to them on their security and for them national interests are paramount and has severed all relations with Pakistan? Can anyone again explain this to me? Can any politician explain that why just 2 to 3 months of Kargil war in which we officially lost more than 600 soldiers did our politicians decide to invite Gen Pervez Musharraf who was the then Pakistani Army Chief and who masterminded Kargil war like a royal emperor to India?
                                          What did we get in return? Our plane hijacked and dreaded Pakistani terror leaders like Maulana Masood Azhar, Omar Sheikh and others were released  and they later plotted terror attack on Parliament and have till now killed thousands of people and soldiers and are still at large! Gen Musharraf mocked at India and hailed terror leaders as “heroes” and terrorism as “freedom struggle” still why our politician left no stone unturned to woo him disregarding completely the supreme sacrifices made by our Kargil war heroes like Captain Saurav Kalia who along with 5 soldiers of 4 Jat Regiment were tortured mercilessly for 22 days, eyes, ears and nose pierced with hot iron rods, whole body burnt with cigarette and even their private parts were not spared before finally shooting them on the head and then handing their dead body badly mutilated back to India, Captain Vikram Batra who sacrificed his life fighting enemies to win back Tiger Hills etc ?
                                                As if this was not enough, Gen Musharraf even paid Rs 1 lakh cash prize to dreaded Al Qaeda leader Iliyas Kashmiri for presenting him a severed head of an Indian soldier Bhausaheb Maruti Talekar and vowed to keep it with him as trophy! But how are our politicians concerned for whom inviting Gen Musharraf like an emperor and having lunch and breakfast and dinner were more important than anything else within few months of Kargil war? Is this the real reason why Justice Markandey Katju calls our politicians as “rogue and scoundrels”?
                                                Why can’t all Pakistanis be expelled from India? Why can’t our Ministers stop this stupidity of allowing Pakistanis medical help by citing humanity even as our people living close to border areas are regularly on daily basis facing bullets and becoming blind or suffering other physical disabilities yet we see this not affecting our politicians in any manner who are surrounded by many black cat commandoes and who are totally safe and stay in big houses peacefully? Why can’t they go close to border areas and stay there the ground reality for themselves?
                                             Why MFN status was given to Pakistan at the first instance in 1996 when they had engineered the killings of thousands of Kashmiri Pandits and even those Muslims who had supported them in any manner? Why is it still continuing even 22 years later in 2018? Why is J&K not being fully and finally merged with India even after more than 70 years of independence?
                                             What message are politicians sending by lashing out with their lips in public rallies but doing nothing concrete on ground to substantiate that they mean seriously what they say and that it is not said just for public consumption? MFN status for Pakistan! Most disgraceful and most hurting!
                                              Why can’t politicians nuke all relations with Pakistan? Why can’t Pakistan be boycotted completely until and unless they mend their ways? Are we not encouraging them by maintaining still cordial relations with them as if nothing has happened and even inviting and honouring Pakistani invaders like Gen Musharraf? This alone explains why India has always been taken for granted in the international forum!
                                                It will not be an exaggeration if I conclude my write-up by saying, “Politicians are far, far, far more dangerous than Pakistan and Justice Markandey Katju is right when he calls them as ‘rogues’ and ‘scoundrels’ for whom MFN status to Pakistan is more important and not our people and brave soldiers who are being killed mercilessly by proxy war sponsored directly by Pakistan since last many decades yet our politicians are just not affected at all which alone explains why MFN status for Pakistan is still continuing till now without being revoked even once since last more than two decades”! Can on earth there be anything more shameful than this? Which self-respecting nation will behave like this?
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

UIDAI Under Fire For FIR Against Scribe

Let me begin at the very beginning by pointing out that the Unique Identification Authority of India (UIDAI), which has filed an FIR against a journalist who exposed a breach in its Aadhaar database denied that it was trying to gag the media or whistleblowers. After facing a widespread criticism for filing a criminal complaint naming a journalist – Rachna Khaira of ‘The Tribune’ among others, the UIDAI said in a press release statement that, “It was duty bound to place all facts before the police and criminal proceedings have been initiated for the act of unauthorized access as it takes criminal violations seriously.” It triggered a political firestorm with the government saying it was committed to press freedom and the Opposition accusing it of ‘fascism’.  
                              To put things in perspective, the FIR was filed two days ago by a Deputy Director of UIDAI which is the parent body of the Aadhaar project against The Tribune’s Rachna Khaira for her report, which claimed that unknown agents had provided her access to Aadhaar’s database for just Rs 500. Should she be punished for exposing how anyone can exploit the loophole to gain access to Aadhaar’s database? Certainly not.
                                 Rather she should be commended and awarded for her exemplary work and courage to expose the wrongdoing and loopholes prevalent in the Aadhaar! American whistleblower Edward Snowden said the Indian journalist whose report on alleged Aadhaar data breach led to lodging of an FIR merits an award and not a government probe for the work. He also said the Indian government should reform its policy to safeguard privacy of its citizens. Absolutely right!
                                 Needless to say, Snowden tweeted on Twitter that, “The journalists exposing the #Aadhaar breach deserve an award, not an investigation. If the government were truly concerned for justice, they would be reforming the policies that destroyed the privacy of a billion Indians. Want to arrest those responsible? They are called @UIDAI.” He also remarked in his tweet that, “It is the natural tendency of government to desire perfect records of private lives.”
                                   It must also be revealed here that according to the police, on January 4, 2018, a complaint was received from Deputy Director UIDAI BM Patnaik stating that an input had been received through The Tribune newspaper, dated January 3, 2018, mentioning that they had purchased a service being offered for Rs 500 by anonymous sellers over ‘Whatsapp’. The service provided unrestricted access to details for any of more than one billion Aadhaar numbers including name, address, postal code, photo, phone number and email. What wrong has been done by Rachna in exposing this?
                                  Yet what did she get in return? The Press release by the Editors Guild of India noted as the Delhi Police Crime Branch confirmed filing of the FIR that the journalist was booked under the IPC Sections 419 (punishment for cheating under personation), 468 (forgery), 471 (using a forged document), Sections of the Information Technology Act and the Aadhaar Act. How fair is it to book a brave journalist under so many Sections? Most reprehensible!
                                        It is heartening to note that even the Editors Guild of India stated most explicitly that, “Instead of a direct attack on the freedom of press UIDAI should have ordered a thorough internal investigation into the alleged breach and made its findings public”. Very rightly said! But most unfortunately what UIDAI has done is just the reverse which can rightly be termed as “Shoot the messenger”! How can this be ever justified by anyone? No way!
                               It is also heartening to note that it is not just the Editors Guild of India and opposition parties who have condemned the action but even the local press clubs have not lagged behind in condemning this dastardly action of lodging an FIR against the brave journalist – Rachna Khaira. Expressing serious concern over the FIR, the Editors Guild of India said that, “It is clearly meant to browbeat a journalist whose investigation on the matter was of great public interest. It is unfair, unjustified and a direct attack on the freedom of the press.” Very rightly said!
                                       It is noteworthy that AICC spokesman Manish Tewari alleged that there have been systematic assaults on scribes and an atmosphere of fear and violence has been created against them. He asked the people to introspect whether they want a liberal, democratic and fascist country. Tewari alleged that media organizations have been systematically hounded and targeted and demanded that the FIR against “The Tribune” and the journalist be withdrawn if the government believes in the freedom of press.
                                    He said that the newspaper which warns the government that the privacy and the private data of thousands of citizens are at risk is rewarded with an FIR. He very rightly said that, “If this is not fascism, if this is not trying to muzzle dissent, if this is not gross abuse of state authority, then I am afraid, we possibly do not have a definition for it….” Nothing on earth can justify an FIR against the brave journalist Rachna Khaira who dared to take the system head on and expose the loopholes by exploiting which any person can obtain any information from UIDAI database!
                                           To be sure, the Editors Guild also rightly pointed out that, “Instead of penalising the reporter, UIDAI should have ordered a thorough internal investigation into the alleged breach and made its findings public.” Raj Chengappa who is President of Editors Guild of India rightly asserted that, “The Guild demands that the concerned Union Ministry intervene and have the cases against the reporter withdrawn, apart from conducting an impartial investigation into the matter.”
                              What is most amazing is that inspite of FIR being lodged against her, Rachna appeared calm and responded calmly by saying that, “I think I have earned this FIR. I am happy that at least the UIDAI has taken some action on my report and I really hope that along with the FIR, the Government of India will see what all breaches were there and take appropriate action.” On being asked whether she stood by her report, she responded confidently that, “Yes, of course, I stand by every word in it.” She refrained from commenting on the issue as she felt that it is not the right time.
                                    On being asked whether she had received any organizational support, Rachna said that, “I am very happy that not only the Chandigarh media, the Delhi media and even the international media have assured me of support. I am also happy that the report has been applauded by the big names in the media. The Tribune is providing all the legal assistance to me.” The Tribune’s Editor-in-Chief Harish Khare while reiterating his full solidarity with Rachna lamented that, “We regret very much that the authorities have misconceived an honest journalistic enterprise and have proceeded to institute criminal proceedings against the whistle blower.” The Chandigarh Press Club (CPC) too while condemning the FIR lodged against Rachna lamented that, “Instead of taking action against people, who were involved in the data breach, the government agency preferred to lodge a case against the reporter, who exposed the loopholes in the system.” CPC Secretary General Barinder Singh Rawat also hit out saying that, “In an act of ‘shoot the messenger’, the UIDAI had filed a case against the reporter of The Tribune for an article on how anonymous users accessed Aadhaar details and sold it for a fee.”
                                  All said and done, Rachna Khaira merits award as Edward Snowden advocated and not probe! It is the job of the journalists to take the risk like Rachna to find out such fact and report them so that the authorities can act on them well in time.  All journalists not just young but even seniors should look forward to her as a shining beacon of hope always ready to face the grave challenges which comes in her journey while pursuing her journalism career and should always try hard to emulate what she has done! Why journalists alone? We all must always get inspired by what Rachna Khaira has done and should try our level best to always act like her – to always be solely concentrated in bringing out nothing but the real truth even if it exposes the high and the mighty which includes the Government in the Centre! Hats off to Rachna Khaira! We are all proud of you and for what you have done! Superb!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 

Supreme Court Facing Supreme Judicial Crisis Is Alarming

To begin with, what has happened on January 12, 2018 is completely unprecedented in the history of Supreme Court of independent India! Never before have the Hon’ble Judges of the Supreme Court ventilated their grievances against the Chief Justice so openly in front of the media! Transcending judicial protocol which prohibits the sitting Judges from interacting with the media, all these 4 Justices accused Chief Justice Dipak Misra of assigning cases of “far-reaching consequences to the nation” to junior hand-picked Judges against the time-tested convention, practice and tradition of the court!
                                          Truly speaking, this is certainly a very serious charge and the CJI Dipak Misra would also now certainly deliberate on it and be more careful from now onwards! Why can’t well defined rules be made in this direction so that there is no confusion of any sort regarding picking of Judges for hearing sensitive cases? It can certainly be done if judiciary resolves firmly to do so!  
                                       It cannot be denied that all these 4 Judges – Justices Ranjan Gogoi who is next in line to replace Dipak Misra who is the present Chief Justice of India, Jasti Chelameswar who is senior to Gogoi but will retire early on June 22, 2018, Madan B Lokur and Kurian Joseph who make the current Supreme Court collegium are man of strong character and carry great reputation with them of always sticking to prescribed norms! I have never heard anything against any of these 4 Judges which may raise a question mark on their impeccable integrity! So what they say has to be taken most seriously.
                                   It must be brought out here that the seven-page letter which was addressed to the CJI and circulated at the press meet minced no words in stating that certain Supreme Court Judges arrogate to themselves the “authority to deal with and pronounce upon” cases which ought to be heard by other appropriate Benches. The letter is of October 2017 origin which implies it was written about three months back. Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measures but their efforts failed.
                                         To be sure, Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measure but their efforts failed. With a heavy heart, the Judges said that, “With the independence of the judiciary and the future of democracy at stake, they had no other choice but communicate to the nation to please take care of this institution.” Justice Chelameswar also sought to make it clear that, “They decided to act now because they did not want any wise men to say 20 years later that Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph sold their souls and did not take care of the interests of this illustrious institution.”
                                     It cannot be lightly dismissed that Justice Ranjan Gogoi has highly risked his chances of becoming the next Chief Justice by coming out in the open to air his differences with Chief Justice Dipak Misra! The other Judges also have taken a great risk by daring to come out in the open. They have acted as per their conscience and it needs real great guts to do so! How many of Judges in the Supreme Court have acted like them in the past? The answer is a big “none”!  
                                     Going forward, Justice Chelameswar also lamented that, “The administration of the Supreme Court is not in order. Many things undesirable have happened in the last few months. As seniormost judges of the court and of this country, we hold a responsibility to the institution and to the nation.” He also quipped that, “The convention of the court demands that important cases of public interest or sensitive matters should be first heard by the Chief Justice of India. If the CJI is not willing for some reason to hear the case, then it should be assigned to the next senior-most judge in the Supreme Court. Instead of that, such cases have been assigned to certain Benches and eventually given a quiet burial.” This is a very serious charge!
                                           Justice Chelameswar went on to further add that, “Unless the institution is preserved and allowed to maintain its dignity, democracy will not survive. The hallmark of a good democracy are independent and impartial judges.” Who can dispute or deny this? Why can’t their invaluable suggestions be implemented after taking into board the CJI Dipak Misra along with other Judges of the Supreme Court?
                                       Why drag on with the old deadwood? Why can’t fresh changes be made in the functioning of the highest court of India? Why do we forget that even judges are not infallible?   
                                          He also pulled back no punches in recounting that the trigger for the press conference was a meeting they held with the Chief Justice on the morning of January 12 regarding the assignment of a petition, seeking an independent probe into the mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin encounter case to a particular Bench!
                                Be it noted, they had expressed their reservations to the CJI about the assignation of the Loya case. But the CJI refused to budge. They had then informed him about their intention to go public. Though Justice Chelameswar did not name the Loya petition, Justice Gogoi, who is scheduled to take over as Chief Justice of India after Dipak Misra retires on October 2 in 2018, spoke up to clear the air by saying that the petition is indeed regarding Judge Loya’s death. He said: “Yes, yes. It was the Loya case.”
                                  Justice Gogoi further added that, “It is the discharge of our debt to the nation that brought us here. We have discharged our debt to the nation by saying what is what.” The revelation at the press conference came a couple of hours after a Bench led by Justice Arun Mishra who is a very junior Judge in Supreme Court heard the Loya petition. One has to concede here that a Bench led by Justice Arun Mishra termed the alleged mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin Sheikh encounter case as a “serious matter” and asked the Maharashtra government to respond by January 15.
                                        It also said the case should be heard bi-parte rather than ex-parte while asking the Maharashtra government to file the Judge’s autopsy report. It decided to hear the case despite protests from the Bombay Lawyers Association, represented by senior advocate Dushyant Dave that it has already field an identical case and it is pending before the Bombay High Court. The Apex Court is hearing petitions filed by Maharashtra based journalist BR Lone for a probe into Loya’s death on December 1, 2014.
                                        Another petition has also been filed by Congress leader Tehseen Poonawala on the same issue. Loya had died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague’s daughter. The issue embroiled into a major spotlight in November 2017 after media reports quoting his sister fuelled suspicions about the circumstances surrounding his death and its link to the Sohrabuddin case. Poonawala in his lea said the circumstances of the death of the Judge were “questionable, mysterious and contradicting”. Even Caravan magazine had covered it in detail some time back.   
                                       It must be revealed here that the 4 Judges said the letter written in October 2017 did not mend matters. Their efforts to convince the Chief Justice to take corrective measures had failed thus forcing them to go public. The letter written by the 4 Judges reveals their utter anguish at the recent judicial orders and an erosion in the judicial independence of the court. The letter said the Chief Justice’s authority, as the master of the roster to decide which Bench should decide which case, did not make him a “superior authority”.
                       Furthermore, the letter also stated that, “The Chief Justice is only the first among equals – nothing more or nothing less”. Yet, they said, “there have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the Chief Justices of this court selectively to the Benches of their preference without any rational basis for such assignment.”  
                               
                                      Truth be told, the letter which the Supreme Court’s four seniormost Judges have made public has emphasized the row between the Apex Court and the government over finalizing the Memorandum of Procedure (MoP). The four Judges expressed displeasure over delays in finalizing the MoP and observed that the government’s “silence” on the matter meant it had been accepted. The MoP lays down the procedure to be followed in appointment of Judges in the higher judiciary and while it came into existence in 1993, plans to revise the existing MoP have been stalled after differences between the Supreme Court and the government came out in the open.
                               It cannot be lost on us that the MoP was laid down on the directions of the Supreme Court in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India), wherein a nine-Judge Constitution Bench devised the Collegium system of appointments. The letter observed that the MoP was finalized and sent by the “then Hon’ble the Chief Justice of India to the government of India in March 2017”. The letter stated that, “The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra)”.
                                    It is noteworthy that the letter also mentions a Supreme Court order dated October 27, 2017. The letter mentions that, “We deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest.”
                               To recapitulate, it was on October 27, while hearing a petition that was filed by lawyer RP Luthra, who had challenged the appointments made to the higher judiciary in the absence of the revised MoP that a Bench of Apex Court comprising of Justices AK Goel and UU Lalit had issued notice to the Centre and directed the presence of Attorney General KK Venugopal. The development came as a surprise as it meant clearly that the Supreme Court had taken up the matter, which till then was being dealt with on the administrative side, on the judicial side.
                              To put things in perspective, all these 4 Justices have said in their letter that, “We need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period.” Who can deny that 10 High Courts in India are without proper Chief Justice and have only acting Chief Justice? Who can deny that there will be many vacancies in Supreme Court as many Judges are about to retire this year? Who can deny that there are more than 470 vacancies in the strength of High Court Judges? Who can deny that there are nearly 6000 vacancies in the strength of Judges in lower courts? Why are these vacancies not being filled? Why is Centre neglecting judiciary?
                                           Why is Centre not creating more high court benches as recommended by 230th  report of Law Commission of India? Why Nehru had the guts to create a bench just about 150 km away from Allahabad at Lucknow 70 years back in 1948 but no PM till now 70 years later had the courage to set up a bench anywhere in any part of UP even though Union Minister like Satyapal Singh demand 5 benches and Rajinder Aggarwal who is BJP MP from Meerut demands benches at Meerut, Agra and Gorakhpur and so also other MPs from West UP keep demanding benches regularly only to be ignored time and again?
                                    All said and done, this open rift in the Supreme Court has sent shockwaves throughout the nation. Former CJI RM Lodha says the controversy could have been avoided but doesn’t fault the judges conscience call. He says during his term, he strictly went by seniority while assigning cases to avoid allegations of arbitrariness. This “dangerous and discretionary bomb” must be defused by ending all discretion vested in CJI in this behalf by making written rules of going strictly by seniority as former CJI Lodha very rightly and strongly advocates!
                                       KTS Tulsi who is an eminent senior lawyer said that, “I am sure they (4 judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety.” Justice RS Sodhi however feels that, “By press conference, are you going to hold a referendum and ask people what is right and wrong?” Prashant Bhushan defends them saying that, “Somebody had to confront the situation, where the CJi is blatantly misusing his powers. Hence the unprecedented step.”
                            Former Chief Justice of Punjab and Haryana High Court Justice (retd) Mukul Mudgal said that, “The four senior-most judges must have had compelling reasons to go public and they are not public hungry judges”. Subramanian Swamy who is a lawyer as also BJP MP in Rajya Sabha says that, “We cannot criticize them (the four judges). They are men of great integrity…We must respect them.” Salman Kurshid who is an eminent Supreme Court lawyer too lamented that, “I feel agony that the highest court of the land should come under such stress that forces judges to address the media.”
                                 Former Supreme Court Judge KT Thomas said that, “It should not become a precedent. Sitting Supreme Court Judges interacting with the media especially concerning matters relating to administrative, business and judgment side of the top court have never happened before. The image of the institution will not suffer from today’s event. The Supreme Court is far above all these.” Former CJI TS Thakur felt that this should have been sorted out within the institution instead of bringing them out in public. He asked that, “How did a press conference by four senior judges of the Supreme Court help resolve their discontent against the Chief Justice of India? It does not help anybody, particularly the institution if someone was to bring it out in the open. Roster issues are also matters which can be sorted out.”
                                    Senior lawyer Rebecca John said it must have been the last resort available to the four judges. Attorney General KK Venugopal said that, “What has happened today could have been avoided. The judges will now have to act like statesmen and ensure that the divisiveness is wholly neutralized and total harmony and mutual understanding prevail in future. This is what all of us at the bar want and I am sure that the judges, including the CJI, will rise to the occasion.”On a concluding note, the only silver lining out of this entire supreme judicial crisis in the highest court of India which is certainly most alarming is that now many are realizing rightly that fixed rules must be made clearly and very urgently stipulating  that only seniormost Judges will hear sensitive cases and all discretionary power available right now with the Chief Justice should be immediately abolished! 
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Will Electoral Bonds Usher In Transparency?Will Electoral Bonds Usher In Transparency?

Let me begin right at the very beginning by first and foremost pointing out very explicitly that secrecy and non-disclosure of names of donors can never usher in transparency no matter how tall claims the government may make repeatedly through its eminent and senior leaders. Why should there be any secrecy at all? Why can’t there be full and fair disclosure of names of all donors who donate to political parties?
                                     Why this hush-hush secrecy of not disclosing names of donors on one pretext or the other? Why is Centre not making any serious effort to make sure that nothing is hidden by politicians and that everything is disclosed by them relating to payment which they receive from different sources? Why is Centre offering just lame excuses for not disclosing the names of all the donors who donate generously to political parties?    
                                              Why under this electoral bond scheme the donor’s identity won’t be revealed to the beneficiaries? What is there for politicians to hide? Why Centre wants full transparency from people but not from politicians? Why can’t politicians too reveal every money which they get from different sources for fighting elections just like any other common person? Why special exemptions for political parties and politicians? Do they deserve this?      
                                  Why government is trying to project this electoral bond as most viable method on cleaning up poll funding without making the names of donors public? Why on one hand Arun Jaitley claims that the present system ensures unclean money coming from unidentifiable sources and most political groups seem fairly satisfied with the arrangement and would not mind this status-quo to continue but on the other hand makes sure that even under the electoral bonding method the names of donors are not made public? What sort of transparency is this?
                               Why on one hand Arun Jaitley claims that the effort, therefore, is to run down any alternative system which is devised to cleanse up the political funding mechanism but on the other hand throws up another opaque system which protects the identity of the donors from being made public? How can any sane person support another opaque system with just few minor changes? Why can’t there be full transparency with nothing hidden from the public?      
                            It is noteworthy that the government on January 2 had notified electoral bonds as a new instrument for donations to political parties. Arun Jaitley has himself said that, “The government is willing to consider all suggestions to further strengthen the cleansing of political funding in India. It has to be borne in mind that impractical suggestions will not improve the cash-dominated system.” Who can be better equipped than Arun Jaitley himself who has been a senior lawyer of Supreme Court and also Union Law Minister to understand best that not disclosing the names of donors will only make sure that even those involved in wrong activities too can donate money without their name being made in public? How can this be justified under any circumstances?
                                  Truth be told, under the new system the prospective donors will be required to buy interest-free electoral bonds of designated denominations which they will forward to the parties of their choice. The donors’ identity won’t be revealed to beneficiaries. Jaitley says this is needed to discourage cash donations. He does not say why and how. In any case, it’s far from certain why the present system of cash donations will cease with the advent of electoral bonds as the role of cash in the electoral battle will continue to remain as dominant as before if not more! Who can dispute or deny this?
                                       It must also be revealed here that the life of the electoral bond would be only 15 days. A bond can only be encashed in a pre-declared account of a political party. Every political party in its returns will have to disclose the amount of donations it has received through electoral bonds to the Election Commission. The entire transactions would be through banking instruments. Jaitley reveals that as against a total non-transparency in the present system of cash donations where the donor, the done, the quantum of donations and the nature of expenditure are all undisclosed, some element of transparency would be introduced in as much as all donors declare in their accounts the amount of bonds that they have purchased and all parties declare the quantum of bonds that they have received.
                              To be sure, Jaitley also reveals that, “How much each donor has distributed to a political party would be known only to the donor. This is necessary because once this disclosure is made, past experience has shown, donors would not find the scheme attractive and would go back to the less desirable option of donating by cash. In fact the choice has now to be consciously made between the existing system of substantial cash donations which involves total unclean money and is non-transparent and the new scheme which gives the option to the donors to donate through entirely a transparent method of cheque, online transaction or through electoral bonds. While all three methods involve clean money, the first two are totally transparent and the electoral bonds scheme is a substantial improvement in transparency over the present system of no transparency.” Jaitley has a valid point. But even this method is not perfect.   
                                  I have absolutely no hesitation in concluding that a wrong is a wrong whether it is a smaller or a bigger wrong. The present  system of electoral bonds may be definitely a better alternative than the earlier one but even this too has many shortcomings. These shortcomings too needs to be removed and the system of electoral funding must be made totally transparent with no room for secrecy of any kind!
                                       Jaitley has rightly said in a Face book post that India has not been able to evolve a transparent political funding system, despite being the largest democracy in the world. But now his government has been in power since the last four years. So he cannot offer any excuses for India not having been able to evolve a transparent political funding system. It is the bounden duty of his government to make sure that the system of poll funding is made totally transparent and there is no room for secrecy of any kind in any form which will only serve to further enhance the reputation of his government in the Centre!
                                 According to the Association for Democratic Reforms (ADR), almost 70 percent of the Rs 113 billion of party funding received over an 11-year period came from unknown sources. What makes matters even more worse is that the Centre in 2016 retrospectively amended the Foreign Contributions Regulation Act (FCRA) to redefine the status of London-headquartered multinational Vedants, which had contributed to the BJP and the Congress party after the Delhi High Court held that both parties – BJP and Congress were guilty of violating FCRA rules. Neither party has been made to penalize for this blatant violation of all rules!
                                      How can this be ever justified? Who can justify the decision to not disclose the names of donors under the electoral bonds scheme which will only serve to promote the dangerous trend of opacity in political funding? How can this be denied that most private donors prefer anonymity for fear of reprisals from political parties and they would still prefer to continue with cash donations under the Rs 2000 slab as is enumerated under Section 29C of the Representation of the People Act as also via electoral trusts as it is here that anonymity is better maintained?   
                                  Why Centre is just aiming to reduce the big role that unaccounted cash has in the electoral process of electing candidates? Why Centre does not care to do more to address the need to have public accountability of sources of political funding? Why Centre has drawn a Lakshman Rekha that this naming of donors can never be done?
                                   Why Centre is not ready to bring in more transparency rather is seen to be eschewing transparency in this new method of electoral bonding? Why all the great legal luminaries in the Cabinet of Centre have failed thoroughly to work out on this in a satisfactory manner? Why is Arun Jaitley expecting the people to do the homework on this score?
                                       He himself is such a great legal luminary! Why can’t he work out himself a fair and transparent system of electoral funding? Why can’t a roadmap be put forward by Centre with clear timelines and with the ultimate aim of ushering in complete transparency in the system of political funding?
                                Why Centre fails to appreciate that just introducing electoral bonds will not usher in transparency in the electoral system unless accompanied by other corollary measures? Why there is no clarity right now on how much a party or a candidate spends in an election and from where all they get funding for fighting  their elections? Why there is no mechanism to monitor the spending of money by parties and candidates during elections?
                                    Why parties are not asked to show their source of funding which are dubious in many cases? Why no strict penalty is imposed against any political party who is found to have acquired huge money from “unexplained sources”? Why political parties are exempted from disclosing the name of donors received from foreign countries?  Unless this is done, all other steps will prove to be “an exercise in futility”! Also, foreign countries by donating lavishly can subjugate our country indirectly and remote control them through their representatives in Delhi! Who can deny this possibility can never happen under any circumstances?
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

No Need To Play National Anthem In Cinemas: SC

Let me start penning my thoughts by first and foremost pointing out that in a landmark ruling, the Supreme Court on January 9, 2018 said that cinema halls across India no longer needed to play the national anthem before film screenings thus reversing an order passed over a year ago. The ruling comes just a day after the Centre asked for “status quo ante” – or a return to the situation before the court had passed its November 2016 order saying that it would frame fresh ruleswithin six months. Now cinema halls will not be obligated to play the national anthem before the screening of film begins and it would be a purely voluntary exercise.
                                        I too fully endorse this viewpoint. Why wear patriotism on your sleeves? Senior and eminent advocate of Supreme Court Rajeev Dhavan rightly said that, “The anthem had a ceremonial significance and a “sacred element” which should not be trivialized by playing it four times a day in cinemas”. What is the point of doing all this useless showoff when our politicians don’t have the guts to terminate Most Favoured Nation (MFN) status to Pakistan even after more than 22 years having conferred it way back in 1996 and that too unilaterally? Kuwait has not lost a single soldier at hands of Pakistani army or terrorists still it has ordered all Pakistan is to leave Kuwait and has severed all relations with it as they felt that Pakistanis are a threat to their security! Can Indian politicians ever dare to do so?
                                          What is the point of doing this useless showoff when more than our lakh soldiers have been killed directly by cross border terrorism sponsored by Pakistan and still our leaders don’t have the guts to do what Rajeev Chandrashekhar who is independent Rajya Sabha MP from Bangalore demanded that Pakistan should be declared a “terror sponsor country” and Maulana Mehmood Madani of Jamiat-e-Ulema-Himd demanded that Pakistan be labelled as “Aatankistan” rather enjoy paying uncalled trips to Pakistan and some even castigate their own leaders and PM from Pakistan? What is the point of doing this useless showoff when our leaders shamelessly invite Pakistani invader Gen Pervez Musharraf within 2 to 3 months of Kargil war masterminded by him in which we lost officially more than 600 soldiers and he himself conceded that he had entered 15-16 km inside Indian territory just one night before Kargil war to motivate his soldiers to slaughter our soldiers like animals and we saw how Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment were after being captured alive tortured continuously for more than 20 days and were blinded with hot iron rods, beaten mercilessly and maimed and private parts were cut  and put in the mouth and then dead body was handed over to India and not just this he threatened himself to nuke India if Indian soldiers dared to step even one step inside their territory as he feels Pakistan alone has the unfettered right to invade still he was given a red carpet welcome and leaders of all major parties felt extremely overjoyed to have company with him while having breakfast, lunch and dinner? Not just this he even awarded dreaded Al Qaeda terror leader Iliyas Kashmiri who was earlier in Pakistani Army with one lakh rupees as cash prize for presenting him a severed head of an Indian soldier Bhausaheb Maruti Talekar on 27 February 2000 as reported in all English dailies and promised to always keep it with him as a “fond memory” and Pakistani media proudly published Iliyasi carrying head of Bhausaheb?
                                    Not just this he terms dreaded terror leaders like Osama Bin Laden, Hafiz Saeed and Syed Salaluddin as “Osama to hero hain ji hero. Hafiz Saeed to hero hain ji hero. Bharat ke liye yeh aatankwadi hain paar Pakistan ke liye to yeh hero hain ji hero bilkul aasli freedom fighter hain ji”! Can there be anyone more shameless than us that we still forgot everything and accorded him VVIP treatment? Commonwealth countries had expelled Pakistan but India got them readmitted!
                                            Don’t our politicians still shamelessly sing national anthem? Does it serve any purpose other than fooling illiterate people? Don’t our politicians always keep an eye on votebank politics and for preserving their votebank are ready to exploit any issue like Ram temple and Babri Masjid and due to this we have seen how riots broke out in 1993 and how thousands lost their lives in riots, bomb blasts etc?          
                                               What is the point of doing this useless showoff when our politicians don’t have the courage to amend the Prevention of Corruption Act under which any person amassing crores of rupees is just jailed for a few years or may be even one year and pay just a few lakh rupees as fine and then again indulge in the same old money minting tactic of corruption? What is the point of doing this useless showoff when corrupt people openly mock at our laws and so do killers and other criminals and even after committing worst crimes are able to play with the system because of cases pending for many decades due to which they die a natural death or escape punishment because of many loopholes in our laws and even if convicted come out within few years from jail and there too the rich and powerful are able to manipulate all sorts of comforts by bribing those who are corrupt?
                                            To be sure, a Bench headed by Chief Justice of India Dipak Misra said that, “The interim order passed on November 30, 2016 is modified that playing of national anthem prior to screening of a film is not mandatory or directory”. Before the 2016 ruling, some state governments which includes Maharashtra had made it mandatory for the national anthem to be played in theatres across the state. Legal experts said that any such executive order by states would still stand. Those executive orders shall not be affected by this landmark judgment.
                                        It is noteworthy that the court specified that if the anthem is played in theatres, moviegoers will have to stand in a show of respect, but said that differently abled people would be exempt. The exemption granted to the disabled persons “shall remain in force on all occasions”. The Bench while disposing of a PIL which had asked to specify what would constitute disrespect and abuse of national anthem said that, “Citizens and people living in India are bound to show respect”. The court said that the Prevention of Insult of National Honour Act 1971 make it “clear as crystal that no one can be intentionally prevented from singing or cause disturbance in assembly by singing the anthem.” The Prevention of Insult to National Honour Act 1971 states that, “Whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both”. The court said that the offenders would be penalized.    
                                    Truth be told, a Bench led by Chief Justice of India Dipak Misra clarified that it is not mandatory to play the anthem before screenings. The court left the choice of whether to play the anthem or not to the discretion of individual cinema hall owners. However, if the anthem was played, patrons were bound to stand up in respect.
                                      To put things in perspective, the court took note of its judgment in the Bijoe Emmanuel versus State of Kerala which dealt with three children belonging to the Jehovah Witnesses sect who refused to sing the anthem in the school assembly though they stood up in respect, to drive home the point that standing up was a sign of “proper respect” to the anthem. “Proper respect is shown to the National Anthem by standing up when the National Anthem is sung,” the Bench quoted Justice O Chinappa Reddy’s words in the verdict.
                                    What cannot be missed out here is that the modification will be in place till the Union government takes a final decision on the recommendations of an inter-ministerial Committee on the occasions, circumstances and events for the solemn rendering of the national anthem. The Committee will examine whether any amendment is necessary to the Prevention of Insults to National Honour Act, 1971, to expand or specify the meaning of ‘respect’ to the national anthem. The Committee which was set up on December 5, 2017, will submit its reportin six months.
                                    It must be add here that the Union Home Ministry has appointed a 12-member inter-ministerial Committee led by Additional Secretary BR Sharma which would take a final call on the playing of the national anthem in cinema halls and public places. It will recommend changes, if needed, in the existing laws. The first meeting of the Committee which was set up on December 5 2017 and which will have officers of the rank of Joint Secretary from 11 Ministries and departments of the Union government will be held on January 19. It will submit its report within six months.
                                       Let me hasten to add here that the decision came after the Supreme Court in October 2017 said “the people cannot be forced to carry patriotism on their sleeves” and it could not be assumed that if a person did not stand up for the national anthem, he or she was “less patriotic”. Attorney General KK Venugopal submitted that the Committee would conduct a comprehensive study of the issue. The government began the hearing by referring to its latest affidavit, suggesting that the court modify its November 30, 2016 order and give cinema hall owners discretion till the Committee took a final decision.  
                                       Going forward, the Supreme Court accepted the Centre’s submission that an inter-ministerial Committee constituted onDecember 5 was looking into all aspects relating to the playing and singing of the national anthem and let the government have a final say. Supreme Court had justified its November 2016 order making it mandatory to play the national anthem in cinema halls saying it was “for the love of the motherland”. It had also said that the national flag be displayed on the screen while the anthem was playing.
                                       It may be recalled here that Justice Dipak Misra before he became the CJI, headed the Bench that issued the order which had been backed by the government. But the order came in for criticism from the court in October 2017 when Justice DY Chandrachud very rightly asked if people needed to stand up to prove their patriotism. I fully agree with Justice Chandrachud and ask those who keep making it a prestigious issue that why inspite of prominent leaders like Shashi Tharoor, Subrahmanium Swamy and many others that MFN status for Pakistan must be revoked, all Pakistanis must be ordered to leave India just like Kuwait has done and Pakistan be declared a “Terroristan” as India led by Sushma Swaraj who is External Affairs Minister addressed it in UN but still officially is not ready to take any hard action against Pakistan where it hurts them most even though its closest ally US has frozen all aid to Pakistan?
                                    Leaders have just no convincing answer except evading it or giving lame excuses! Endless cries of families of slain soldiers and innocents have no effect at all on our heartless politicians surrounded by many black cat commandos for their security 24 hours who are not ready to withdraw MFN status to Pakistan under any circumstances! Instead they foolishly resort to senseless slogans like “Bharat mein rahane hain to Vande Mataram kehana hain, Bharat mein rahane hain to rashtra gaan gaana hain. Jinhe nahin gaana hain who jain Pakistan”!
                                        It is a different matter that no party including BJP has the guts and courage to make a law by which those who wave Pakistani flags and burn our national flags and openly chant anti-Indian slogans which burns even moderates like me with fury are made to vacate India and go to Pakistan or any other country of their choice! To sing or not to sing anything should be best left to the concerned individual himself/herself and politicians must instead concentrate on appointing more Judges, more high court benches in big states like UP where there is just one bench established by Jawaharlal Nehru way back in 1948 but since then no leader till now in 2018 seventy years later is ready to set up even one more bench here anywhere and people of remote areas like those in West UP and Bundelkhand and Gorakhpur are compelled to travel more than 800 to 900 km on an average all the way to Allahabad as there is no bench anywhere else in such as big state and another lawless state Bihar has not even one bench!
                                           UP has maximum pending cases and still it has least benches whereas peaceful states like Karnataka, Assam and Maharashtra have 3, 4 and 3 benches each! MPs from West UP like Rajinder Aggarwal from Meerut earnestly keep demanding benches at Meerut, Agra and Gorakhpur and Satyapal Singh who was just made Union Minister and is MP from Baghpat also had demanded benches at Meerut, Agra, Gorakhpur, Jhansi and Varanasi which is PM constituency but Centre is not ready to create even one more bench anywhere just like predecessor Congress! To act earnestly and sincerely always so that people gains most is the best way to be nationalistic. Just like if a bench is created in West UP more than 9 crore people will benefit and litigants would not be compelled to travel many times without reservation whole night all the way to Allahabad to get justice. Not tolerating nonsense from any foreign country is the best  way to show nationalism! But how much we keep tolerating cross border terrorism is known worldwide and it requires no elaboration!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

The Proposed Financial Resolution and Deposit Insurance Bill

To begin with, a lot of fire and storm has been kicked by the proposed Financial Resolution and Deposit Insurance (FRDI) Bill even before it has been passed by Parliament leave alone being assented by President. There is a widespread perception that if a bank fails everyone will have to sacrifice and this includes the depositors and the part of the money which is not insured. It is argued that this Bill can’t be avoided as it is part of the G20 (Group of 20 countries) FSB (Financial Stability Board) requirement. We all know that India is a member of the FSB and G20. As a member, India had accepted that it would work out a resolution package. The whole idea of this proposed Bill is that if at any point of time a bank fails then how can they be saved?
                                         To put it bluntly, this proposed Bill envisages that all the creditors will have to be part of the bail-in provision and depositors are also creditors. The bail-in provision in this proposed Bill is expected to eliminate haircut. If the bank survives, then the depositors including the non-insured deposits will get back the money. If it fails then they are bound to lose the money! This is why there is so much of hue and cry over it! Mamata Banerjee who is the Chief Minister of Bengal said that, “It is a travesty that the Centre as an owner of the nationalized banks is now trying to replenish the eroded capital of banks by forcibly taking away the small depositors savings instead of facing the crisis in the banking.”
                                     It must be brought out here that the FRDI Bill 2017 was tabled in the Lok Sabha on 10 August following which it was referred to the Joint Parliamentary Committee. The Committee has been asked to submit its report to the Parliament by the last date of the Budget session in 2018 in the upcoming winter session of Parliament which started on December 15 after consulting all the concerned stakeholders. The Bill has been facing unrelenting criticism from several quarters for some of its provisions and this includes the “bail-in clause that reportedly suggests that depositor money could be used by failing financial institutions to stay afloat.
                                    Be it noted, this bail-in clause can be used by the bank to simply refuse repayment of a customer’s money and instead issue securities such as preference shares. Its purpose is to provide capital to absorb the losses of a bank to ensure its survival. Here survivor does not mean safety of depositors bank but restoration of capital of the bank. This must be set right and depositors interests must be accorded the top priority always!
                               It also must be brought out here that some of the provisions of the proposed FRDI Bill is facing so much of vehement opposition because it provides for people’s money to be used to bail out banks that made bad lending decisions! Why should people suffer interminably because of wrong decisions made by bank lenders? Why should those bank lenders not be punished for their negligence or willful deceit?
                                        It is noteworthy that the Government through its Finance Ministry has been quick to clarify that, “The provisions contained in the FRDI Bill, as introduced in the Parliament, do not modify present protections to the depositors adversely at all. They provide additional protections to the depositors in a more transparent manner.” The Government also said that, “The FRDI Bill will strengthen the system by adding a comprehensive resolution regime that will help ensure that, in the rare event of failure of a financial service provider, there is a system of quick, orderly and efficient resolution… The FRDI Bill is far more depositor-friendly than many other jurisdictions, which provide fort statutory bail-in, where consent of creditors/depositors is not required for bail-in.”
                                      Let me hasten to add here that the government’s statement reiterated its commitment to support banks. It said that, “The FRDI Bill does not propose in any way to limit the scope of powers for the government to extend financing and resolution support to banks, including public sector banks. Government’s implicit guarantee for public sector banks remains unaffected.” Banks are bound to feel happy.
                                    Truth be told, the Bill empowers Resolution Corporation which has been envisaged as an oversight body to monitor the failure of financial resolutions and to limit the fallout of the failures of a systemically important financial institution on the overall sector – to cancel the liability of a failing bank or convert the nature of the liability. It is a significant omission that no specific deposit insurance amount is prescribed and this has been also opposed by many stakeholders. Presently, we see that all deposits up to Rs 1 lakh are protected under the Deposit Insurance and Credit Guarantee Corporation Act 1961 that is sought to be repealed by this proposed Bill. There are many other glaring loopholes.  
                                     To be sure, Mamta Pathania who is co-project Director at National Consumer Helpline and faculty member at the Indian Institute of Public Administration too voices her apprehensions by saying that, “The provisions of the Bill have been creating a lot of confusion in the minds of the people. Ultimately, bank deposits are considered the safest investment option by any investor.” What is equally important if not more is that even political parties like the Congress and various trade unions have also characterized the provision as anti-people and anti-poor and have also apprehended that ultimately it is small depositors who will have to pay the price for bad lending choices of banks, especially loans given to big corporates. This is really most reprehensible. Why should common man pay for misdeeds of big corporates?  
                                   One has to concede here with grace that the Finance Minister Arun Jaitley has himself acknowledged that “a lot of corrections could still take place”. No doubt, after the 2008 global financial crisis, governments all over the world have been forced to bring in laws to resolve failure of financial institutions and not to depend on public-funded bailouts. In India too, a new legal framework was felt as imperative to prevent such failures of financial institutions especially banks which explains why we see this proposed FRDI Bill being worked out by Government!
                                According to the Ministry of Finance, there is presently no comprehensive and integrated legal framework for resolution, including “liquidation of financial firms in India”. The Ministry said that current resolution instruments available under respective legislations are “limited, and so is guidance on the process leading up to the resolution”. It said in a statement on January 2 that, “The current resolution regime is especially inappropriate for private sector financial firms in the light of significant expansion of private financial firms and many of these acquiring systemically important status in India.”  
                            As it turned out, the Finance Ministry made it a point to highlight that, “The Insolvency and Bankruptcy Code, 2016 has introduced in the country a comprehensive resolution regime for mainly non-financial firms, but such a regime is not available in the country for financial firms.” It also reiterated that the FRDI Bill proposes to establish a “Resolution Corporation” (RC) and a comprehensive regime to enable timely and orderly resolution of a failing financial firm. It also sought to make it clear that, “It provides for detecting incipient insolvencies in financial firms by introducing a five-stage health classification of financial firms and stepping in to appropriately nurse a financial firm at the stage when its health becomes weak and it is classified in the category of material risk to viability.” The five-stage categories are primarily modelled on their risk of failures: low, moderate, material, imminent and critical risk to viability. If it is in the critical stage risk category then the RC has various ways in which it can resolve it which includes taking over the administration of the firm on the day on which is classified as critical.       
                                     Truly speaking, the Finance Ministry also made it a point to reveal that, “FRDI Bill also introduces a menu of resolution tools, including transfer of whole or parts of the assets and liabilities of a financial firm to another person, acquisition, merger or amalgamation, bridge service provider and bail-in and mandates recovery and resolution planning obligations to enable careful monitoring of risk to viability of a financial firm”. The Resolution Corporation will insure bank deposits and the insured limit will be set in consultation with the RBI.  
                                  To put things in perspective, on the “bail-in” provision of FRDI Bill, the Ministry said that it has only been proposed as one of the tools to be used in the event a financial firm is sought to be sustained by resolution. The statement of Finance Ministry explained that, “Bail-in amounts to liabilities holders bearing a part of the cost of resolution by reduction in their claims. Bail-in is only one of many resolution tools in the FRDI Bill; others are acquisition, merger and bridge service provider, and is to be used either singly or in combination with other tools.” It was also added that, “Bail in provision may not be required to be used in case of any specific resolution. Most certainly, it will not be used in case of a public sector bank as such a contingency is not likely to arise.”
                                        It was reiterated by the Finance Ministry that the FRDI Bill does not prohibit the central government from extending support to banks, including PSU banks. It also reaffirmed that, “Government’s implicit guarantee for solvency of public sector banks remains unaffected as the government remains committed to adequately capitalize the public sector banks and improve their financial health. The government is committed to protecting the existing protection to depositors and providing additional protection to them.”  
                                       Needless to say, the moment this FRDI Bill will be made a law, India would also finally have a law to swiftly address the issue of insolvency of companies in the manufacturing sector. As stated earlier, this Bill aims primarily at finding and finalizing a resolution plan to get a troubled company back on track, or, in the event of a complete failure, to ensure a quick winding up. The plan is to have a similar law for firms in the financial sector so that if a bank, a Non Banking Finance Company (NBFC), an insurance company, a pension fund or a mutual fund run by an asset management company, fails, a quick solution is available to either sell that firm, merge it with another firm or close it down with the least disruption to the system, to the economy and to investors and to other stakeholders.
                               This is to be done through a new entity termed as a Financial Resolution Corporation which is envisaged as an agency that will classify firms according to the risks they pose, carry out inspections and at a later stage take over control where necessary. This is what was recommended by the Financial Sector Legislative Reforms Commission headed by Justice BN Srikrishna. This is exactly what is being sought to be implemented now!  
                                      All said and done, the proposed Bill is yet to take its final shape. It has to incorporate valuable suggestions it gets from the Joint Parliamentary Committee. Also Arun Jaitley said that, “The Cabinet will place the recommendations in the public domain and ask for feedback. So I think a lot of corrections will take place.” So let us hope fervently that the glaring drawbacks in the proposed Bill will be weeded out before it is finally made into a law and the depositors interests will not be compromised under any circumstances!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Chavan Gets Bombay High Court Relief In Adarsh Scam

To begin with, in a big reprieve for the former Chief Minister of Maharashtra and Congress leader Ashok Chavan who was the Chief Minister between December 2008 and November 2010 and currently the President of the Maharashtra unit of the Congress in the Adarsh housing society case, the Bombay High Court has on December 22, 2017 set aside the sanction granted by the Maharashtra Governor to prosecute him for his role in it. A Bench of Justice Ranjit More and Justice Sadhana Jadhav of Bombay High Court while quashing and setting aside the sanction order said that the order passed by the Maharashtra Governor granting sanction to prosecute Ashok Chavan in the Adarsh housing society scam “cannot be sustained” since it was not based on any fresh material produced by the CBI that could be considered as plausible evidence by courts during trial.   
                                   To put things in perspective, the Bombay High Court was hearing a petition filed by Ashok Chavan challenging the decision of Maharashtra Governor C Vidyasagar Rao granting sanction to the CBI to prosecute him in the scam. The Bench had earlier made Rao a respondent in the matter. This is the second major relief for the Congress in recent times. On December 22, a Special CBI Court acquitted all accused, including former telecom minister A Raja in Congress led UPA regime, in the 2G spectrum allocation case.
                                          It must be revealed here that the CBI in its FIR filed on January 2011 had named former Maharashtra Chief Minister Ashok Chavan as accused 13 in the Adarsh society case. According to the FIR, Chavan got involved in a criminal conspiracy when he was the Revenue Minister in 2000. His proposal that civilians be made members of the society was approved though his ulterior motive was to reportedly allow his relatives to secure flats in the society. The flats in the society were meant for widows of Kargil war. The FIR stated that RC Thakur, Brigadier Madan Mohan Wanchu and Kanhaiyalal Gidwani were also involved in the plot.
                                           It must be also revealed here that the CBI said that after the induction of civil members, state government officials expedited the process of land allotment. In 2009, then CM Ashok Chavan had exempted the society from reserving 15% space for a recreational ground – an exemption not allowed by the previous government. In turn, Chavan secured membership for his relatives, according to the CBI.
                                       Truly speaking, the FIR said Chavan had abused his position to favour the society. A case was filed on charges of conspiracy, cheating, forgery and Sections of the Prevention of Corruption Act, 1988. The CBI had recorded Chavan’s statement in the case. It had also questioned several people to ascertain the number of civilians who got flats in the society on his orders. They found that there were six such flats. Two were registered in the name of Chavan’s mother-in-law and sister-in-law.
                                      It cannot be lost on us that in 2014, the former Governor K Sankaranarayanan refused sanctions to prosecute Chavan. The CBI had moved an application in a special court, seeking the approval to remove Chavan’s name from the list of accused, which it rejected. In October 2015, the Joint Director of CBI, Mumbai had sought sanctions to prosecute Chavan under Section 197 (issuing or signing false certificate) of the Criminal Procedure Code, based on fresh material, namely, the Justice JA Patil Commission report and the Bombay High Court’s observations of the criminal revision application. The key accused in the case, former member of Legislative Council Kanhaiyalal Gidwani had died in December 2012.
                                        Before proceeding ahead, let me quickly recapitulate the entire sequence of events in this high profile case. They are as follows –
April 19, 2013: Justice JA Patil Inquiry Commission report was submitted to the government.
August 19, 2013: The CBI forwarded the report to the offices of the SP, ACB and its Mumbai branch.
December 17, 2013: The erstwhile Governor K Sankaranarayan refused sanction to prosecute Ashok Chavan.
December 20, 2013: Justice JA Patil Inquiry Commission was tabled in Legislative Assembly.
January 15, 2014: The CBI submitted an application in the Trial Court, seeking to delete Chavan’s name from the list of accused due to then Governor’s refusal to grant sanction.
January 18, 2014: The Trial Court rejected the CBI application.
May 25, 2014: The CBI filed a criminal revision application before the single Judge of the Bombay High Court for quashing and setting aside the order of the Trial Court.
March 27, 2014: The CBI filed supplementary chargesheet before the Trial Court, stating that Chavan was not involved in benami transctions in respect to the flats of Adarsh society.
June 19, 2014: The CBI filed a second supplementary chargesheet and informed the Trial Court the investigation had been completed.
November 19, 2014: Bombay High Court dismissed the criminal revision application field by the CBI.
December 15, 2014: Chavan field a criminal application recalling theNovember 19 order. The application was dismissed on March 4, 2015 by the Bombay High Court.
April 1, 2015: Chavan filed a special leave petition (SLP) challenging the order dated November 19, 2014 and March 4, 2015.
July 13, 2015: The Supreme Court issued notices to the state government and the CBI on the SLP. The SLP is pending before the Supreme Court for final disposal.
October 8, 2015: The CBI sent fresh proposal (second application) seeking sanction to prosecute Chavan.
                                        While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bombay High Court held in its judgment categorically that, “It was permissible for the Governor, the sanctioning authority, to review or reconsider the earlier decision of the erstwhile Governor not to grant sanction to prosecute the petitioner (Ashok Chavan) in terms of the fresh material which had surfaced after the earlier sanction was refused.” So whatever the Governor did, he was well within his right to do so. There can be no denying or disputing it!
                                       It must be mentioned here that the Bench also added that, “However, the agency (CBI) failed to present any fresh material capable of being converted into evidence that can be substantiated at the time of trial. Therefore, in the absence of fresh material, the sanction cannot be sustained and is quashed and set aside.”
                                       For my esteemed readers exclusive indulgence, let me also inform them that in December 2013, the then Maharashtra Governor K Sankaranarayanan had refused sanction for the CBI to initiate proceedings against Chavan. On February 4, 2016, Sankaranarayanan’s successor C Vidyasagar Rao granted sanction to prosecute Chavan for alleged offences of criminal conspiracy and cheating under relevant sections of the Indian Penal Code, and under various provisions of the Prevention of Corruption Act. However, the Bombay High Court did not agree with the argument made by senior counsel Amit Desai, appearing for Chavan, that material to be considered by the sanctioning authority can only be evidence collected by the investigating agency.
                                          To be sure, Justice Ranjit More made it clear that, “The material which is required to be considered by the sanctioning authority is not limited to the evidence collected by the investigating agency during the course of investigation”. But in the same vein the court also observed that such material must be admissible and capable of being converted to evidence, which can be substantiated at the trial stage. Who can question this?
                                        Needless to say, the Bench of Bombay High Court while pronouncing its judgment held that, “The sanctioning authority is an independent agency, which cannot allow itself to be influenced by any opinion in the case of absence of material. This is the case of absence of material and in such a case earlier order of refusing sanction could not have been reviewed. Is it not a case of non-application of mind and, therefore, the same must be dealt with at the earliest if possible in order to avoid ignominy to a public servant.” Every person has the right to reputation which cannot be denigrated by anyone without substantial proof which has to be approved in a court of law. Who can question this? Chavan contended that the decision to review the December 2013 decision of the then Governor was politically motivated and biased, and there was no additional material warranting review of the decision. It was also argued that the February 2016 order was motivated by change in political circumstances and not by any change in material aspects.
                                        Be it noted, while appearing for the CBI, lawyer Hiten Venegaonkar had earlier told the court that validity of the Governor’s February 2016 order granting sanction to prosecute Chavan in the case can only be tested in the trial court. Senior counsel Amit Desai while appearing for Chavan had argued that the 2016 order was motivated by a change in political circumstances and not by any change in material aspects of the case.
                                        Truth be told, in an earlier affidavit filed by the agency, it said that it approached the Governor for the second time seeking sanction as there was additional and fresh material against Chavan. On October 8, 2015, the CBI sent a fresh proposal in the form of a second application seeking sanction to prosecute Chavan, which was granted by the Governor. The CBI had relied on the report submitted on April 19, 2013, by a two-member judicial commission set up by the government to inquire into the Adarsh scam and a previous order of the court passed in November 2014.
                                             As it turned out, the Bombay High Court while trashing aside the evidence produced held that, “Neither the extract of (the)… Commission report nor the order passed by the Single Judge of the Court are admissible as evidence and, therefore, it cannot be considered. In the absence of fresh material, the Governor has no jurisdiction to review the order of the erstwhile Governor.” The Court held that, “The Commission report is only recommendatory in nature”. The court said that the challenge by the petitioner to Governor’s order can be entertained at the pre-trial stage since the same was passed without there being any fresh material.
                                   Of course, while rejecting former Maharashtra CM Ashok Chavan’s petition challenging the trial court’s decision to reject the CBI plea seeking deletion of his name from the list of accused persons, the Bombay High Court that the single Judge merely expressed his tentative opinion “which in our considered opinion cannot constitute fresh material”. Additional Solicitor General Anil Singh had claimed that the report of the Commission and certain observations made by the Single Judge were “additional material”. The Bombay High Court, however,  while disagreeing with him said in its judgment that, “The ASG’s arguments cannot be entertained as it would amount to abuse to process of law”.
                                        All in all, this latest judgment by Bombay High Court is a huge relief to Ashok Chavan who was on tenterhooks till the judgment finally came. He too expressed a sigh of relief and said that, “ Truth has prevailed. I have full faith in the judiciary. The governor’s order was politically motivated. The High Court order reaffirms my faith in the judiciary. I am satisfied. The Governor had given the sanction to prosecute me, overruling the decision of his predecessor. With today’s court decision, the Governor’s office has been saved from setting a new precedent.” He is well within his rights to feel happy and vindicated by this Bombay High Court latest judgment!  Well, there can be no denying this!  
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.