Category: News Analysis

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

Why Lawyers Of West UP Strike Every Saturday?

To begin with, it is no ordinary matter that the lawyers of West UP have been on strike every Saturday since May 1981 to protest against denying West UP even a single bench of high court even though the Justice Jaswant Singh Commission had recommended the setting up of a high court bench at Agra apart from Nainital and Dehradun which are now in Uttarakhand but not a single bench was created anywhere. On the contrary, Centre took just no time to create a high court bench at Aurangabad in Maharashtra in 1985 on the recommendations of the Justice Jaswant Singh Commission as also at Madurai in Tamil Nadu and Jalpaiguri in West Bengal! It was then that the lawyers of West UP decided to set up a Central Action Committee to pursue the most sacred and legitimate demand for a high court bench by fighting for it relentlessly till it reaches its logical conclusion.
                                          It was decided to observe Saturday of every week as a protest day against Centre’s discriminatory policy towards West UP! Today is January 6 and so again the lawyers of all 26 districts of West UP will be on strike and no work will be done in any court of any of these 26 districts of West UP! It has been more than 36 years that lawyers have been doing so but Centre is caring a damn!  
                       In hindsight, 21 December is a date which I can never forget in my life because it was on this black day in 2014 that Dr OP Sharma who is the former President of Meerut Bar and who is held in highest esteem here lost his only son – Tarun Sharma who also was a budding advocate to bullets and that too right in front of his house! He was about to be engaged just after about two to three months! He had pursued his MBA from New Zealand and then chose to follow the worthy footsteps of his father by wearing black coat but his live was abruptly cut short by bullets!
                                   He had everything in him to become like his illustrious father an eminent lawyer and even a Judge of High Court and Supreme Court but alas that was not to happen as bullets snatched the promising life of an intelligent young lawyer!  He too as long as he was alive vociferously and actively supported the legitimate agitation for a high court bench in West UP and always lead from the front in demanding it along with his father! He also had done LLM and even PhD was within his reach if his life was not cut short! Even a senior and eminent criminal lawyer of Meerut Bar – KP Singh too was shot dead by criminals with impunity some years back!
                                   Just recently, a 100 year old woman was raped in Meerut and she died within no time! Most recently a young woman was gang raped in Meerut and she was crying saying that she would have to travel so far to Allahabad to attend court hearings as there is no high court bench in West UP! Why can’t a single high court bench be set up for West UP when both high court at Allahabad and a single bench in Lucknow are both in Eastern UP? I really fail to understand why Centre is so opposed to a bench here just like the earlier past governments in Centre?
                                         In Hapur a small girl aged 6 or 7 years gangraped then people protested in huge numbers in streets! This keeps happening every now and then! It is now treated as new normal! No one is safe in West UP and criminals know that because of huge pending cases it will take decades before the case is finally decided and by the time they are decided they would die a natural death! Gang rape on national highway as happened at Bulandshahr is nothing new! Muzaffarnagar riots in West UP shamed us internationally yet no bench here!
                                    Chief Justice of UP – Dilip Babasaheb rightly pointed out that in Maharashtra woman are so safe that they can go anywhere even in the night but in UP no one is safe even with their family and even on the national highways! Yet see the irony that Maharashtra has 3 high court benches and UP only one and West UP where maximum crime incidents occur has none as both a single bench at Lucknow and high court at Allahabad are in Eastern UP! How can this be ever justified by anyone?   Criminals are ruling the roost and Centre yet firmly reiterates that no bench for West UP! Who is gaining most by Centre’s inaction in setting up a bench here? Criminals and only criminals!
                                   The Union Government has set aside Rs 3,320 crore for building 3143 court halls and 1682 residences for Judges but what about a high court bench in West UP? Why can’t a few crore rupees be spared for setting up a bench anywhere in West UP? Why even 1 district is not considered fit to be granted a bench in whole of West UP?
                                  Why is it ignored that high court itself was initially in West UP at Agra for 3 years before being shifted to Allahabad? Why Justice Jaswant Singh Commission recommendation to create a high court bench in Agra in West UP was most brazenly disregarded even though on its recommendations benches were set up at other places like Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu? Why Centre is not prepared to make any concession on bench issue for West UP? Why many BJP leaders like Laxmikant Vajpayee meet UP CM Yogi Adityanath and demand bench just like others leaders have been doing since independence but still no bench is being created here?
                                    It needs no rocket scientist to conclude that it is the “poorest of the poor” people among the more than 9 crore people of all religions, castes, communities and sexes without any discrimination whatsoever who will stand to gain the maximum if a high court bench is created in West UP! What is the problem then in creating a high court bench for more than 9 crore people living in 26 districts of West UP in 2018 when a high court bench for Lucknow for just 12 districts was created way back in 1948 on July 1? Why even after 70 years is Centre not prepared to create a high court bench in West  UP even though the people are compelled to travel for about 700-800 km whole night all the way to Allahabad as there is no bench here and have to spend huge money for staying, lodging and other expenses?
                                    Why can’t all this be avoided by setting up a high court bench in West UP or by attaching 26 districts of West UP with Delhi High Court which is so nearby? Why the high court and benches of 8 states and above all even Lahore high court in Pakistan is nearer to West UP as compared to Allahabad? Why the lawyers of West UP were compelled to go on strike for 6 months from July to December 2001 demanding the creation of a high court bench in West UP yet no action taken?
                                        Can anyone in Centre even dream as to how the lawyers managed to strike for so long thereby depriving themselves from livelihood for full 6 months in 2001 and how they struggled to meet their daily end yet no bench created? Even in 2014-15, the lawyers of West UP went on strike for 3 to 4 months and even boycotted Lok Adalats and protested whole night outside the court but again Centre just gave empty assurances but nothing materialized on ground! Even in 2009, the lawyers of West UP went on strike and even called a bandh in whole of West UP to protest the decision to not create a single bench here! Even in 2010, the lawyers of West UP went on strike for a month demanding bench.
                              Why this hatred for West UP? Have people of West UP ever opposed the creation of just one bench for whole of UP in Lucknow which is just 150 km away from Allahabad where high court itself is located? If Lucknow is capital then so are Bhopal, Bhubaneshwar, Dehradun and Thiruvananthapuram among others but there we see neither high court nor bench!   
                                      Why a high court bench at Port Blair for just 3 lakh people, a high court for just 6 lakh people of Sikkim, for just few lakhs of people of people in Manipur, Meghalaya and Tripura as also in many other smaller states? Why a high court now for Uttarakhand since 2000 for just 88 lakh people but not even a bench for more than 9 crore people of West UP? Why such a raw and third rated treatment for them?
                                             Recently, President, PM and Chief Justice of India among others wished the nation on “Constitution Day” and everyone reiterated the dire need to make justice accessible to poor people! But I fail to understand why since last 70 years a single bench has been denied to West UP thus compelling people to travel without any reason so far to Allahabad to get justice? Why when 230th report of Law Commission recommended creation of more high court benches was it not implemented in big states like UP and Bihar which top in the crime rate, murder rate and still UP has just one bench and Bihar has no bench even though Law Minister Ravi Shankar Prasad is from Bihar? Why more than half of pending cases from West UP as acknowledged even by Justice Jaswant Commission yet no bench created here?       
                                         Why for a peaceful state like Karnataka 2 more benches were approved in 2012 at Dharwad and Gulbarga for just 4 and 8 districts even though a bench existed at Hubli even though the pending cases are less than 2 lakh and that of UP stands at more than 10 lakh pending cases? Similarly why many other states like Maharashtra and Assam have 3 and 4 benches but for UP which has maximum population more than 22 crore as CM Yogi Adityananth keeps boasting still has least benches in India inspite of having maximum pending cases in high court about 10 lakh and more than 58 lakh in lower courts?
                                          Why maximum MPs, maximum MLAs, maximum villages more than 1 lakh whereas in other states the number is not more than few thousands at the most, maximum districts, maximum crime etc all in UP yet least benches here? Why former UN Secretary General Ban ki Moon slams UP as “crime and rape capital of India” still we see least benches here and here too West UP which accounts for maximum crime has least benches? Why even leaders of BJP as also other parties are repeatedly killed by criminals without any fear and crime rate is exceeding so much that even foreign tourists are not spared as we saw a Swiss couple beaten up badly in Agra still no bench here? Why even 100 year old woman is raped by criminals without any fear still no bench here? Gang rape is becoming a routine in West UP yet no bench here!
                               Why Centre does not have pity on more than 9 crore people of West UP in whose support lawyers have been waging agitating for a bench since independence and which has intensified since 1981 when lawyers decided to strike every Saturday and make sure that no lawyer does any work on this day and unitedly demand the creation of a bench here? Why lawyers even started striking many times even on Wednesdays yet Centre took no notice? Why even Atal Bihari Vajpayee demanded bench for West UP inside Parliament yet no action?
                                         Why all Union Ministers, MPs and MLAs have unitedly demanded creation of a bench here yet no action? Why for 36 years lawyers of West UP have been striking which should find entry even in Guinness Book of World Records for most period of strike still no bench is being created here? Why in 1955 the then UP CM Sampoornanand had demanded the creation of a bench in Meerut but Centre didn’t agree even though Lucknow had a bench since 1948?
                                             Why this stupidity that the people of Uttarakhand had to travel thousands of kilometers as it had no bench and for more than 50 years were compelled to travel all the way to Allahabad as a single bench was created at Lucknow in 1948? Why bench was not approved for any other place? Why even after 70 years nothing has been done to remedy this grave injustice?
                                      Why inspite of population of West UP being more than any other state except Maharashtra and Bihar and here too areawise Bihar with 94000 square km is smaller than West UP with 98000 square km still it has no bench? Why Centre fails to appreciate that the population of West UP is more than the population of many states put together and similarly the pending cases also are the highest and more than the cases of several states put together yet not even a bench here leave alone high court? Why the maximum cases of rapes, gang rapes, riots, murders, etc are all from West UP yet not even a high court bench here?
                                    Why inspite of repeated assurances by successive governments in Centre was nothing done to fulfil it? With what face is Centre denying a bench even now when Amit Shah who is BJP national President and Rajnath Singh who is Union Home Minister had repeatedly assured that a bench would be created once NDA comes to power in Centre and in UP?
                                      Why only lip service of “speedy justice”, “justice to be made accessible to the poor” and “justice at doorsteps” if no step is taken to create a bench in West UP where incidents of crime are touching dizzying heights? Why Centre fails to appreciate that lawyers of West UP striking since such a long time for 36 long years every Saturday and regularly holding meetings after meetings to chalk out new strategy to push forward the surge of creating a bench can be resolved only by creating a bench here in any of the 26 districts wherever Centre wishes to do so? Is it such a big deal?
                                       Should it not be done immediately? It is the litigants who will stand to gain and here too it is the “poorest of poor” who will benefit most if a bench is created here and all strikes every Saturdayand sometimes even on Wednesday and sometimes for 6 months in a row will become a matter of past! Does Centre not wishes this to happen?
                                              Why then it refuses to take any action on this score? Why is Centre not taking some action to ensure that this more than 36 year old strike by lawyers of West UP is brought to an end by mutual deliberations, discussions and decisions? Why is decision on this score being postponed inordinately when a bench was created at Lucknow in 1948, in Dharwad and Gulbarga for just 4 and 8 districts and in many other places even though the law and order situation is worse in West UP as compared to any other place for which benches were approved? Why litigants of 26 districts of West UP are compelled to travel whole night all the way to Allahabad as there is no high court bench here? Why lawyers of West UP are compelled to strike every Saturday since 1981?
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 

All 2G Scam Accused Acquitted By Special CBI Court

Let me begin at the very beginning by pointing out straightaway that in a verdict which grabbed the news headlines of all news channels as well as newspapers and magazines, a Special CBI court on December 21, 2017 acquitted all the accused, including former Telecom Minister AA Raja and DMK MP Kanimozhi and telecom company owners in the infamous 2G scam. The judgment acquitted them in all three separate cases lodged by the CBI and the Enforcement Directorate (ED). No doubt, this has come as a big respite for all those who were very anxiously waiting for this verdict to come!
                                         Before proceeding ahead, let me point out here that the case centres around five main allegations: fixation of an arbitrary cut-off date; violation of First Come First Serve policy in issuing Letters of Intent (LoIs); granting of Unified Access Service licences to two ineligible companies and payment of Rs 200 crore bribe to Kalaignar TV Pvt Ltd, promoted by the family of DMK patriarch M Karunanidhi.
      
                                       Terming the CBI chargesheet as a “well choreographed” one, Special Judge OP Saini minced no words in saying pin pointedly that, “The CBI’s evidences were incorrect facts which miserably failed to prove charges against the accused in 2G spectrum case.” Reacting to the acquittal, the CBI and the ED said they would appeal against the judgments. Naturally, they have to appeal because by this judgment it is their reputation that has taken the worst beating because they failed to convince by their arguments that a prima facie case existed against all the accused in the 2G scam!  
                                       To be sure, at the end of his 1,500 pages order, Special CBI Judge Saini said that, “I have absolutely no hesitation in holding that the prosecution (CBI) has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.” It must be pointed out here that among the accused, it was Raja who had spent longest period – 15 months in jail during the trial. Kanimozhi was in jail for six months from May 21, 2011 to November 28, 2011. Without a doubt, their face looked cheerful and happy as they have finally got a long-awaited respite. They cannot be faulted because this is what they were looking for.    
                                         To put things in perspective, the fifteen other accused allowed to walk free include former Telecom Secretary Siddharth Behura, Raja’s erstwhile private secretary RK Chandolia, Swan Telecom promoters Shahid Usman Balwa and Vinod Goenka, Unitech Ltd MD Sanjay Chandra and three top executives of Reliance Anil Dhirubhai Ambani Group (RADAG) – Gautam Doshi, Surendra Pipara and Hari Nair. Saini, whose court came into being on March 14, 2011 for hearing 2G cases exclusively, also, acquitted Essar Group promoters Ravi Kant Ruia and Anshuman Ruia and six others in a separate case arising out of the 2G scam probe. Besides Ruias, Loop Telecom Promoters IP Khaitan and Kiran Khaitan and Vikash Saraf, one of the Essar Group Directors, Loop Telecom Ltd, Loop Mobile (India) Ltd and Essar Teleholding Ltd also were acquitted.
                                          It is noteworthy that the CBI had alleged that there was a loss of Rs 30,984 crore to the exchequer in allocation of licences for the 2G spectrum which were scrapped by the top court on February 2, 2012. Raja and Kanimozhi  who is daughter of DMK supremo M Karunanidhi were also let off in another case lodged by the ED under the money laundering law arising out of the 2G scam. It is certainly by all accounts a great relief for them!
                               It would be pertinent to mention here that in its chargesheet, the ED had also named DMK supremo M Karunanidhi’s wife Dayalu Ammal as an accused in the case in which it had alleged that Rs 200 crore was paid by Swan Telecom (P) Ltd (STPL) promoters to DMK-run Kalaignar TV. Along with them, 16 others, including Shahid Balwa and Vinod Goenka of STPL, Asif Balwa and Rajiv Aggarwal of Kusegaon Fruits and Vegetables Pvt Ltd, film producer Karim Morani, P Amirtham and Sharad Kumar, Director of Kalaignar TV, were also acquitted in the money laundering case.
                                      In hindsight, the Judge did not pay much significance to nearly Rs 200 crore transferred to DMK controlled Kalaignar TV by some of the accused persons and companies. He dismissed the transaction saying none of the accused persons claimed that it  was part of illegal gratification in lieu of alleged favour granted to them by Raja. The Judge also find no illegality in the Raja’s decision to advance the cutoff date for receiving application for grant of licences from October 1, 2007 to September 25.
                                  What also cannot be missed out here is that though the Department of Telecom gave just one hour for the applicants to submit their bids, leading to a chaos and scuffle, Judge Saini justified the decision. He also took no notice of the fact that the one-hour time, without any prior notice was too short for any bidder to procure a bank draft ranging from Rs 200 crore to Rs 500 crore. Brushing aside this damning accusation against Raja, Saini went on to justify the decision, saying, “A non-serious player, who had no financial resources, would block the way of a serious player by claiming early mover advantage. This was the main disadvantage of determining seniority by date of application and as such, it was injurious to the interest of serious players, who had the financial resources to execute the telecom project.”
                                      It also cannot be lost on us that Judge Saini also said that whenever an officer wanted to delay an application, “he would wrap it up in the mantle of first-come first-served, that is, unless earlier application was disposed of, the next will have to wait despite no fault of his own.” He said change of criteria was a facilitating innovation. The Judge also seemed to be impressed by the allegations made by the accused persons against prime witness Aseervadam Achary about his political motives. The court rubbished its testimony saying explicitly that, “He was a man with political testimony and used to think of joining political party.”   
                             Be it noted, Justice OP Saini said that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” It was also held that, “When defence started arguments, they kept filing written submissions contemporaneously with their oral submissions. Not only this, the most painful part is that the Special Public Prosecutor was not ready to sign the written submissions filed by him. What is the use of a document in a court of law, which is not signed by anyone? When questioned as to why the Special Public Prosecutor was filing unsigned written submissions, his reply would be that some defence advocates had also not signed the written submissions.”  
                                      While acquitting A Raja, Ms Kanimozhi and 15 others, including 4 companies, of all the charges in the CBI case, Special Court Judge OP Saini said that, “There is no evidence on the record produced before the court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come, first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of Swan Telecom Pvt Limited (STPL) and Unitech group companies, non-revision of entry fee and transfer of Rs 200 crore to Kalaignar TV (P) Limited as illegal gratification.”
                                       The Judge minced no words in stating quite explicitly that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” In his judgment acquitting all the accused in the 2G spectrum case on December 21, Special Judge OP Saini said that, “Everything happening in the Department of Telecom (DoT) then was known to several other companies – and that there was no secrecy and sanctity. Everything taking place in DoT was conveyed by officials concerned to each company in advance.’
                                  It was also held by the Judge that, “Everything was leaking in DoT. There was no secrecy or sanctity. Who is responsible for it? There is no evidence. In such a situation, no blame can be cast on any of the accused alone. In such a scenario where every official information was being leaked, it cannot be argued that a specific information was conveyed to a specific company by a specific individual, unless there is a definite evidence on this point. It is all in the realm of speculation.”
                                       Furthermore, the Judge also while exonerating Raja and all others of any wrongdoing held that, “It is clear that the Ministry of Finance was not very enthusiastic about its objections regarding pricing of initial spectrum/revision of entry fee. Moreover, [the then] Finance Secretary admitted that after receipt of reply of DoT, they did not pursue their objections seriously. If the Finance Ministry had been serious, and Sh. A Raja was not heeding its query for revision of entry fee, the matter must have been reported to the Cabinet Secretariat or PMO.”
                                      The Judge accepted the defence contention that nowhere had the Telecom Regulatory Authority of India (TRAI) recommended revision or indexation of entry fee. Nor had it recommended auction of spectrum. The Judge said: “No witness had deposed that TRAI had recommended revision of entry fee for 2G spectrum, except Nripendra Misra, a former Secretary Telecom, and a former TRAI Chairman. However his view is not supported by the contents of the recommendations.”
                                      The Judge also made it clear in the 1552 page judgment that, “The chargesheet is based mainly on misreading, selective reading, non-reading and out-of-context reading of the official record. Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness-box.” He also said that, “Proceeds of crime is the foundational fact for the offence of money laundering. Since there are no proceeds of crime, there can be no offence.” He concluded by saying that, “The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed chargesheet. Accordingly, all accused are entitled to be acquitted and are acquitted.”     
                              Eminent Supreme Court senior lawyer KTS Tulsi while hailing the judgment said that, “A truckload of documents did not have anything on the basis of which it could be said that the ineligibility of Swan or Unitech was ignored or Raja’s link with transfer of Rs 200 crore to Kalaignar could be established. The court accepted the statement of D Subbarao, referred to as a sterling witness, for coming to the conclusion that there was no loss to the exchequer and at best it was only some sacrifice of revenue (for the benefit of poor subscriber). Once the court came to the conclusion that A Raja was not responsible for change of policy with regard to the cut-off date and its change from first come first serve to first paid, there was virtually nothing left in the case. On detailed careful scrutiny of the files, their notings and evidence of the authors of those notings, the court came to the conclusion that there was no interference by any of the accused persons in processing the files. In addition to that, the court found that in fact Raja passed the correct order and that for the change of policy, DS Mathur was responsible. Moreover, the Solicitor General of India had approved the decision with regard to the change of policy of first come first serve from date of application to date of payment. Thus, it was almost impossible for Raja to be held responsible for the same.”
                                  But Special Public Prosecutor Anand Grover who was appointed after SPP and senior advocate UU Lalit was appointed as a Judge of the Supreme Court is not happy with the judgment. He said the trial Judge made silly mistakes in even reading the basic document, the chargesheet. He asked: “If the chargesheet was faulty, why did he frame charges at all? He should have discharged all the accused only on that ground. No trial Judge proceeds with the trial after finding the chargesheet faulty.”
                              He said the trial Judge appeared to have completely missed the tabular chart provided by CBI detailing the transfer of Rs 200 crore by Dynamics, a real estate company to Kusegaon, a fruit and vegetable trader, which had no business. The money was then transferred to Cineyug Films to be finally routed to Kalaignar TV. He said that, “The money trial was vivid and detailed. The motive was clear. The tabular chart provided by CBI during trial proceedings clearly brought out the sequence and motive behind the payments. Yet, the chart does not even get referred to by the trial Judge. This is strange process of accused getting acquitted.”
                                He further added that it was the cardinal duty of the trial Judge to look for facts in the midst of the jungle for documents. He lamented that, “But, the Judge preferred to go by the contradictory and varying explanations given by the defence lawyers on the money trial. The trial Judge made so many mistakes.”
                                All said and done, the decision by the learned Judge has to be accepted by one and all as binding unless and until it is overturned by the higher court. But one thing is quite clear: CBI and ED miserably failed in doing its homework properly. The outcome of the case could have been different if the CBI and ED had been more serious in pursuing the case right from day one!
                                   Severely castigating the CBI for putting “no question” to any witness that a “transaction of Rs 200 crore was a transaction of illegal gratification linked to (UPA telecom minister) A Raja” in the allocation of 2G spectrum in 2008, Special Judge OP Saini acquitted all accused charged with criminal breach of trust, conspiracy and cheating over alleged largescale irregularities in the allocation. Saini pulling up the CBI for “remaining silent” and “filing a well-choreographed chargesheet” and noting that the prosecutor had made it out to be a “case of high political corruption”, said: “I have endeavoured hard to persuade myself to take an expansive and liberal view of the prosecution case. However, in view of deficient, or I may say nil evidence on record, I find myself unimpressed and unmoved, whatever may be nature of the case. High profile nature of a case cannot be used as a ground for holding people guilty without legal evidence.”   
                                           What a pity that the CBI Special Judge OP Saini had to say that, “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain…Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”
                             This shows how well prosecution, CBI and ED were prepared in such a high profile case! It is really tragic! In a veiled reference to the Comptroller and Auditor General’s estimate of a presumptive loss of Rs 176,000 crore to the exchequer in grant of 2G licences, Special Judge OP Saini said categorically that, “Some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels and a huge scam was seen by everyone where there was none. These are only a few examples of how policy issues are strewn around here and there in a disorderly manner. Because of this, it becomes very difficult for outside agencies and institutions to understand issues in proper perspective, leaving scope for controversy.” Centre must spell out all its policy issues clearly so that no such stinging remarks are required to be made by any Judge again as we see most unfortunately here in such a high profile case!       
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.04411111111111111
102

IMA 12 Hour Strike In Pvt Hospitals Against Medical Commission Bill

Coming straight to the core point, the Indian Medical Association (IMA) on January 1 has called for a 12-hour shutdown of all private hospitals in India on January 2 to protest what they call it the “anti-people and anti-patient” National Medical Commission (NMC) Bill, 2017 that seeks to replace the Medical Council of India (MCI). This NMC Bill was presented in the Lok Sabha on December 29. The IMA has 2.77 lakh members, which includes corporate, hospitals, polyclinics and nursing homes across the country.

                                    Dr Avinash Bhondwe who is former President of IMA said that the IMA has announced a nationwide strike between 6 am and 6 pm on January 2 as a mark of protest against the Bill. Dr SS Utture who is President of IMA said that the Bill in its present form was unacceptable and the IMA action committee has declared a black day on January 2.He said that, “This Bill is anti-poor, anti-people, non-representative, undemocratic and anti-federal in character”.
                                        It must be brought out here that the decision to go on a 12-hour strike came after a delegation of the IMA led by President KK Aggarwal and its national President Ravi Wankhede met Union Minister of health and family welfare JP Nadda seeking strict amendments in the Bill that was tabled in the Lok Sabha. Wankhede said that, “IMA strongly opposes this Bill and has no option but to take the issues to our patients and the people. We have called for 12-hour shutdown.” Routine medical services like OPD and elective surgeries across the country will be withdrawn between 6 am and 6 pm.
                                   Terming the Bill as “anti-people and anti-patient”, the IMA in a statement has stated that the Bill purported to eradicate corruption is “designed to open the floodgates of corruption”. IMA, which is not a statutory body, has been vehemently opposing the Bill to set up the NMC ever since it received the Union Cabinet clearance and has demanded key amendments in it. It issued a statement after the delegation met the Health Minister Nadda which stated that, “NMC is an anti-poor Bill with pro-private management clauses. A Bill to regulate the medical education and medical practice without the concurrence of the medical profession will be a disaster.”     
                                       To be sure, the IMA doctors alleged that there are hidden agendas in the proposed Bill. According to Section 26(1)(b) of the Bill, permission to start medical colleges/PG/superspeciality courses or increase seats in MBBS/PG/superspeciality courses will be directly granted by the Medical Assessment and Rating Board directly, which will have three members nominated by the Centre. This will vastly increase Centre’s clout which can misuse whenever it likes as all the three members would be directly nominated by it!
                                       It must be added here that as per Section 26(1)(f) of the Bill, it is provided that MAR Board take such measure, including imposition of monetary penalty, against a medical institution for failure to maintain the minimum essential standards specified by the UGME Board or the PGME Board, as the case may be. The material point for consideration is that all the three monetary penalties are not to be less than one half and not more than ten times the total amount charged by such institution for one full batch of students of undergraduate course or postgraduate course as the case may be. The medical fraternity points out that it yields such wide period and discretionary power to the Board and in the name of charging fine, the permissibility of the period turns out to be substantial before the closure is invoked which means that during the impending period the learner would be taught and trained in compromised ambience resulting in impoverished teaching and it would end up in generation of half-baked health manpower, which would be ill conducive to the healthcare delivery system! They have a valid point!  
                                        Going forward, as per proviso 2, Section 33(1)(d), the NMC can permit a medical professional to perform surgery or practice medicine without qualifying the National Licentiate Examination, in circumstances and period that may be specified by regulations. Utture said such sweeping powers are not only illegal but will give ample scope for manipulation and corruption. This operationally means that without ascertaining the required levels and certification thereto, the Commission would be permitting people to practice surgery and medicine in an open ended manner which tantamounts to legalizing quackery in an operational sense and thus the lives of the people at large would be openly under threat!  Medhavi Tomar who is President of IMA (Meerut unit) lambasted the illogical move saying that, “On one hand, the government plans to abolish exams for foreign graduates despite the fact that they will not be conversant with the infections and diseases of the country, but on the other hand, they want the MBBS students who have already studied for the degree to go through another entrance exam to get themselves a degree. The doctors will also protest against the EXIT exam which the government believes should be undertaken by the MBBS students to finally get their graduation degrees.”
                                   It is noteworthy that the doctors are protesting against the NMC Bill for seeking to allow practitioners of ayurveda, yoga and naturopathy, unani, siddha and homeopathy, to practice modern (allopathy) medicine once they complete a short term “bridge” course.” Dr Shishir Jain who is Joint Secretary, IMA (UP unit) and Finance Secretary, IMA (Meerut unit) said that, “According to current norms, cross-pathy is not allowed, which means a doctor belonging to one category cannot prescribe medicines for another category. For example, an allopathic doctor cannot prescribe homeopathic medicines. But if the NMC Bill is passed, cross-pathy will be allowed, once they complete a six-month course.”
                                  It cannot be lost upon us that many in the medical fraternity are voicing their serious apprehensions over the Health Ministry calling the shots in the days to come and not the doctors! SK Sarin who is former Chairperson of Governors, Medical Council of India minces no words in stating it most unequivocally that, “It is possible that in the near future NMC will become subservient to the health ministry, given that the representation of the medical profession in the new regulatory framework is minimal. The proposed NMC Bill discreetly intends to equate the post-graduate degrees given by MCI or proposed NMC and the National Board of Examination (NBE), which is unjustified too. Standards have been laid down for MCI courses, but not for NBE courses which are often run in private hospitals and nursing homes.”       
                                    Elaborating further, SK Sarin also points out that, “It is well known that doctors in private practice have limited time and exposure to teaching and research. Equating the two degrees would do disservice to the profession. Why would a teacher stay in a government run medical college if he or she can earn five times more and still be designated as a professor? It would be advisable if some serious thought is given before the burial of government-run medical college starts. Similarly, NMC shouldn’t open gates to overseas doctors to regularly practice medicine or perform surgery without qualifying the National Licentiate Examination or induct Ayush colleagues without clearing NEXT. Also, the accreditation and rating function of the Medical Assessment and Rating Board (MARB) should be out of the ambit of NMC. This was also the recommendation of the Parliamentary Committee report in March 2016. MARB’s impartialty is dented if it seeks directions from the commission or government, more so as penalties on non-compliance on educational standards are monetary and regulation of fee structure of up to 40% of seats in private institutes is under its domain.”
                                                  As per Section 55(2) (zl) of the National Medical Commission Bill, the Ethics and Medical Registration Board shall maintain a separate national register including the names of licensed AYUSH practitioners. The names of BAMS and BHMS graduates are already registered with their respective councils and on availing the bridge course they would be incorporated in a separate register maintained by the NMC, resulting in dual registrations with two registering councils, which is neither open nor permissible. Utture lamented that, “The disciplinary jurisdiction on such persons with reference to breach of ethics is not indicated in the proposed Bill as they have dual registrations to their credit. As such these are the floodgates that have been opened up  in terms of the statutory provisions for backdoor entry into medical profession entitling practicing modern medicine.”
                                          The proposed NMC will have 10% elected members (part time) and 90% nominated members. We thus see that it will not have a desired “representative character” with reference to “elected and nominated/appointed members” whereas currently we see that the MCI has 75% elected members and 25% nominated members. Why has the strength of elected members dwindled down to a mere 10% and that too part time whereas the strength of nominated members has been raised hugely from 25% to 90%? Will this not directly increase government’s interference?  
                                        As per Section 10 of the Bill, the functions vested with the Commission under the Act are generic and cosmetic in character. Thereunder it is to exercise appellate jurisdiction with respect to decisions of the autonomous boards. As per Section 10(1) of the Bill, Commission would be framing guidelines for determination of fee in respect of such proportion of seats not exceeding 40% in the private medical institutions. This operationally means that the fee regulation would be limited to a maximum of 40% seats in the private medical institutions, which is difficult to comprehend as to why such a ceiling and furthermore it could be anything from nil up to 40% which is quite paradoxical!
                                It also brings into fore as to what would be the chargeable fee for those percentage of seats for which no guidelines would be framed by the Commission.  Does this not open the floodgates of discretion and nepotism? Also, this operationally will mean that the present 15%, which is available to private institutions which includes deemed universities for charging higher fee, would stand augmented to the entire remainder which could be anything between 60% or more which as is blindingly obvious is a real travesty of its type.   
                                  Section 15 of the proposed Bill inserts provision which introduces licentiate examination as mandatory for practicing and doing further post graduate courses after acquiring MBBS qualification. It has been discussed above but it must be added here that the IMA doctors apprehend that the standard and level of licentiate examination would be such that the students belonging to backward communities would find it greatly difficult to clear the same easily and handily! They would thus suffer immensely as they would neither be able to practice nor even take admission in PG courses. The same holds true for those who come from backward areas/states and also from north-east region as well!    
                                   Be it noted, as per Section 29(b) of the Bill, the MAR board is to look into ‘whether adequate faculty and other necessary facilities have been provided to ensure proper functioning of the medical college or would be provided within the time limit specified in the scheme while granting permission to start Medical college or PG courses. Does this not vest the board with the sword of wide discretionary power to accord approval by hypothetically making the assumptive presumption that the stipulated minimum requirements would be completed within due course of time? Will this not impact adversely and prejudice the desired quality of medical education?
                                   What is even more concerning to note is that as per proviso 2 , Section 29(d) of the Bill, the MAR Board can relax the criteria for opening of the medical colleges at its discretion with the previous approval from the Central Government? Will this not ensure that extraneous considerations finally rule the roost in relaxing criteria? Why the regulatory stipulations which are mandatory in nature and binding in character should be opened to concessions or condonation by exercising the route of discretionary authority? Should such route of discretionary authority be allowed? Certainly not!         
                                       As per Section 44(1)(2) of the Bill, although autonomy is widely anticipated to be the hallmark of the NMC Bill, 2017 and the Boards thereunder would be called as “Autonomous Boards” but the ground reality is just the opposite! Centre would be entitled to give directions to the Commission and autonomous boards on all questions of policy which would be binding for the Commission and autonomous boards to comply with! Where is the guarantee that Centre will not misuse it?
                                        Section 45 further strengthens the hands of the Centre by incorporating that Central Government would be within its rights to give such direction it may deem necessary to the State Government for carrying out all or any of the provisions of this Act and State Government shall comply with such directions. Does this not directly undermine the authority of the State Government and clashes directly with the cardinal principles which govern the federal polity as stipulated in the Constitution? Similarly we see how Section 10(1)(f) of the proposed Bill makes it obligatory for State Medical Councils to comply with the directions/policy of the NMC thus bringing it under Centre’s direct thumb!
                                        Last but not the least we see how Section 58(3) has a direct adverse bearing on the employees of the MCI. It brings out that on the dissolution of the MCI the person appointed as Chairman of the MCI and every other person appointed as the member and any officer and other employees of the council and holding office as such immediately before such dissolution shall vacate their respective offices and such chairman and other members shall be entitled to claim compensation not exceeding three months pay and allowances for the premature termination of term of their office or of any contract of service. This clause severely impacts the employees of the council who earlier enjoyed full time salaried status and permanence of employment in character but are now rendered jobless thus leaving them to fend for themselves. Is this not violation of Article 21 read with Article 12 of the Constitution of India because Article 12 vests entitlement to decent life and living as a fundamental right to every citizen and Article 12 clearly mandates a State (in this instant case the MCI) to be an ideal employer?
                                       I can still go on and on. But due to constraint of space I have to now finish. One has to concede that the IMA protests are not without reason. Centre must work out the solution which lies in the problem itself! Centre must take into board all the legitimate concerns of the IMA and work out a new Bill after addressing them properly! Why insist on EXIT exam for Indians alone when Centre is planning so many concessions for foreign students? All such vexed issues must be addressed and they can be if the government is willing and earnest in its endeavours to do so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Bill To Criminalise Triple Talaq Passed In Lok Sabha

To begin with, it needs no rocket scientist to conclude that the reprehensible practice of instant triple talaq is just a step away from becoming a punishable offence after the Lok Sabha on December 28 passed this historic Bill by voice vote. The Bill expressly stipulates a jail sentence of up to three years for the guilty husband. The Bill draft says that, “Any pronouncement of talaq by a person upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever shall be void and illegal.” The Bill makes the declaration of instant triple talaq a cognizable and non-bailable offence. Without a doubt, the Centre by making instant triple talaq or talaq-e-biddat a punishable offence has given a big boon to all those Muslim women who get adversely affected by it and suffer for no fault of theirs!
                                           But the endless woes of women just don’t end by this only! Polygamy or permission given under Muslim man to marry up to 4 wives is another much abused provision wherein it is the woman who is the worst sufferer. As if this is not enough, there is Nikah Halala also whereby if a Muslim man gives divorce to his wife and wants to marry him again then that Muslim woman is supposed to marry some other man, get divorce from him and then again marry her former husband!
                                        Can on earth there be anything more atrocious than this? Still it is valid in India since last 70 years and has continued unabated, unpunished and unchecked! Arif Mohammad Khan who was Union minister in former PM late Rajiv Gandhi’s Cabinet has been most vocal in demanding the abolition of not just instant triple talaq but also nikah halala and polygamy but he had to leave the Cabinet as his voice was not heard on this and he was overruled! Centre must now act on these two evils also just like Nehruji very rightly banned Hindus from marrying more than once even though Lord Krishna had 16,108 wives, Shivaji too had many wives and it was very common for Hindus to marry as many as they liked with no one to stop them from marrying them as many times as they wanted! Hindus should never forget Nehruji for this great favour that he did to them because of which the population also has come under control and now similarly Modiji should also have the guts like Nehruji to do a favour on Muslims also by similarly abolishing these reprehensible practices which are retrograde and violate the dignity of woman in the most rash manner! No doubt, a good beginning has been made in this direction!
                                          It is imperative to mention here that the Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill by voice vote after rejecting a string of amendments moved by opposition members. The Congress said it supported the Bill but wanted it to be scrutinized by the Standing Committee of Parliament but this demand was rejected by the Chair. MPs from the RJD, AIMIM, BJD, AIADMK and All India Muslim League opposed the Bill and called it arbitrary in nature and a faulty proposal. Eminent Union Minister MJ Akbar who is himself a Muslim said that, “The law will give a big blow to those who want to keep women under the constant ‘fear and terror’ in the name of talaq”.
                                        It must be mentioned here that the Union Law Minister Ravi Shankar Prasad had invoked the Shah Bano case at the BJP’s Parliamentary Party meeting on December 28 and had said that unlike Rajiv Gandhi, Prime Minister Narendra Modi would not bow down on triple talaq. He briefed the BJP MPs of the triple talaq legislation. He said that, “Rajiv Gandhi bowed down to the lobbies and left Shah Bano mid-way. Our PM will not let any injustice done to Muslim women.” What Prasad has said is truly laudable but I will again reiterate that it must now outlaw nikah halala also and polygamy also because such derogatory practices cannot be justified under any circumstances!
                                                 Let me mince no words in saying this most directly: If polygamy is banned even among Muslims, the dangerous trend of Hindus and people from other religions converting to Muslims just for getting their second marriage validated would be checked hundred percent! Thus two birds will be killed with one stone! The dangerous menace of “Love Jihad” can also be effectively checked by this!
                                               But the moot question here is: Will Centre show the requisite courage to act in this direction by acting similarly as it has done in the case of instant talaq or will it succumb in front of those who are big leaders but who never want the Muslim woman to truly become independent which alone explain why they oppose tooth and nail any type of changes in Muslim laws and this includes derogatory practices also like nikah halala and polygamy? Only time will tell! But I am still optimistic that Centre would place national interests first and take the right decision accordingly! Banning polygamy will not just check exploitation of women, conversion of people from their own religion to Islam just for marrying more wives than one but will also go a lot ahead in checking the population of our country which right now is growing by leaps and bounds and it is widely anticipated that if we go by this rate we would soon leave even China behind in next few years to become the world’s most populated country!
                                           To put things in perspective, while calling it a historic step, Union Law Minister Ravi Shankar Prasad said the Bill – The Muslim Women (Protection of Rights on Marriage) Bill 2017 – will act as a deterrent since there have been 100 cases of triple talaq even after the landmark judgment of the Supreme Court delivered in August this year. We all know that in the landmark case of Shayara Bano v Union of India, the Supreme Court has outlawed instant triple talaq and very rightly so! Who can question this?
                                           Going forward, Prasad made it a point to further mention that while 22 Islamic countries, including Pakistan and Bangladesh have regulated instant triple talaq, there was no effective law in India. He further went on to say that, “The Muslim Women (Protection of Rights on Marriage) Bill seeks to ensure the larger constitutional goals of gender justice and gender equality of married Muslim women and help sub-serve their fundamental rights of non-discrimination and empowerment.” Very rightly said!
                                It must be mentioned here that Clause 3 stipulates that instant triple talaq in any form shall be void and illegal. Clause 4 mentions that husband giving triple talaq to serve a jail term of up to three years and pay fine. A Sampath of CPM asked that, “Why is there no mention of the maximum quantum of fine in the Bill?” This is because the Judge has then the discretion to impose fine seeing the financial condition of Muslim men! Clause 5 envisages that the married Muslim woman shall be entitled to alimony. Sushmita Dev of Congress on this asked that, “Who will give the maintenance if the husband goes to jail?” All these questions must be addressed before it is finally made a law! The amount of the allowance will be decided by a first class Magistrate.
                                            Shaista Amber who is All India Muslim Woman Personal Law Board President hailed the judgment saying that, “I thank Allah, the government, the Supreme Court, Law Commission and all MPs”. Taking a dig at those opposing the Bill, Shaista questioned that, “What had they done for our rights?” Shayara Bano who led the sacred fight to ban instant triple talaq too expressed happiness but added a rider that, “After triple talaq, even other practices such as polygamy and nikah halala should be banned in our society. The way in which women are tortured in the name of these ill-practices should be stopped”.
                                            Shayara Bano also reiterated that, “I will once again file a petition to ban polygamy and nikah halala in  the top court. I will continue my fight against ill-practices among the Muslim community. These types of practices should be abolished from the Indian society for the development of our country.” After she filed the petition against instant triple talaq, it must be mentioned that thousands of Muslim women across the country came together demanding that triple talaq be abolished. Shayara has shown that any person can change the system if there is determination and will power to do so even if he/she comes from an ordinary family with a humble background! Kudos to her as she deserves all the laurels for prompting even the Supreme Court and Centre to act positively in this regard!
                                                   Eminent jurist and former Attorney General Soli J Sorabjee very rightly appealed not to bring religion into the triple talaq Bill. He elegantly said that, “It’s a very good move that requires legislation. Don’t bring religion into it as the whole thrust of the legislation is to ensure gender equality and to see women are not treated in an arbitrary manner.” He also said that the Bill was being opposed for the vested interests.
                                           He further added that the legislation would ensure gender equality. All of us must firmly believe in what Sorabjee has said and seriously adhere to what he has said as he is one of the brightest gem and jurist that India has known and has mentored even many other eminent jurists like Harish Salve who worked with him from 1980 to 1986! It is certainly a revolutionary step in the right direction but still all efforts must be made to cure it of all shortcomings before it is finally made into a law!
                                             Hope and pray earnestly that it is soon also cleared by the Rajya Sabha and made into a law so that Muslim women can be saved from this worst curse which in one second destroys her whole life with no way left for her to go! It is high time and now all efforts must be made to outlaw even other derogatory practices like nikah halala and polygamy as demanded by Shayara Bano, Arif Mohammad Khan and others which must be immediately thrown out into the dustbin of history by repealing it once and for all!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

In A First Junior Advocates To Get Rs 3000 Per Month Stipend

Coming straight to the crux of the matter, let me begin at the beginning itself by first and foremost pointing out that in what could be considered as a very great landmark step taken for the benefit of fresh law graduates who just step into the legal profession as a lawyer, the Puducherry government has announced a stipend of Rs 3,000 per month for junior advocates for a period of three years or till they start practicing independently, whichever is earlier. This shall certainly bring a big smile in the face of all those who stand to gain by this landmark step. It is a truly laudable step which has to be appreciated for giving young lawyers the stipend of Rs 3000 per month so that they don’t have to look to their parents for financial help and undoubtedly this shall boost their self-confidence to a big level!  
                                   It merits no reiteration that every government of every state must emulate what a Union Territory which is not even a state has chosen to do! This is a very small step that will certainly go a long way in attracting more and more bright students into the legal profession! There is no valid reason as to why all other State governments all over India should not emulate what Puducherry has done now for the benefit of junior advocates!
                                 While craving for the exclusive indulgence of my esteemed readers, let me inform them that an official communication which was sent by N Murugavel who is Undersecretary (Law) to the President of the Puducherry Bar Association said that the Chief Minister V Narayanasamy has allotted funds from the Chief Minister’s relief fund to cover the stipend. When such a small Union Territory can take such a landmark step by which so many junior advocates will benefit then why can’t bigger states who have much more money in their purse can’t allocate just Rs 3,000 per individual like Puducherry if not more so that more and more brighter talent is attracted to the legal profession and the junior lawyers don’t have to pinch their hands even to meet their daily expenses? It is high time and now bigger states too must follow the worthy footsteps of Puducherry and act in the supreme interests of junior advocates!
                                           It must not be lost on all states that in a first Puducherry has taken a very bold and landmark decision of giving junior advocates Rs 3,000 per month stipend! They too must not themselves lag behind and waste no time to do what Puducherry has done in this regard! There is no harm in doing or rather imitating other if that thing which has been done is laudable and worthy enough to be followed by others!
                                          It has to be conceded with grace that what the Chief Minister of a Union Territory – V Narayanasamy has done must be emulated by Chief Ministers of not just Union Territory or small states alone but also equally by bigger states as it is a very courageous decision which is bound to benefit many young and junior advocates who have just stepped into the legal profession and especially those who come from a weak financial background! I would rather go one step ahead and say that even those who come from good financial background would also feel more confident and happy if they get Rs 3000 per month stipend and this will imbue them further to work more harder to earn more and become independent in financial terms which is bound to groom their overall personality and make them more self-reliant! There can be no denying or disputing it!   
                                      For my esteemed readers exclusive indulgence, let me also inform them that the Puducherry government has also very rightly prescribed the eligibility criteria for getting the stipend. Those junior advocates who regularly attend free legal aid camps organized by the Legal Services Authority of the Union Territory of Puducherry and conduct the cases allotted to them by the legal aid committee and respective courts will be eligible to apply for the stipend. All other States must also emulate the most worthy example of Puducherry in this regard!
                                       To put things in perspective, there are other terms and conditions also that have been laid down which include assisting the courts as a researcher, attending the chamber of senior advocates with whom they are attached, obtaining regular service certificates every three months from the President or Secretary of the Puducherry Bar Association and assisting the government pleader or public prosecutor or others at least! These are all valid and rational conditions which shall go a long way in making a fresher and junior advocate more experienced and more capable to deal with the complex court situations which arises from case to case! So they cannot be questioned nor can their utility be questioned!    
                                         It must be highlighted here that while speaking to reporters, the Chief Minister V Narayanasamy said there was a plea from the Puducherry State Bar Association that young lawyers entering the profession be paid monthly assistance. He said that, “Conceding the plea, the government has now evolved a scheme to provide Rs 3000 every month for young advocates. This assistance would be available to the new entrants for a period of three years to start with.” He also made it clear that, “The assistance is to enable the young lawyers to stabilize themselves in the profession.” He further added that initially the government would earmark from the Chief Minister’s Relief Fund, a sum of Rs 9 lakhs to the Welfare Fund of advocates here.
                                          All said and done, what the Puducherry government has done under the able stewardship of Chief Minister V Narayanasamy is truly laudable. He has taken a very bold initiative which must be truly applauded by one and all! It must be emulated by every State Government and Union Territories all across the country.
                                         Needless to say, junior advocates are also young officers of the court and to pay them so much that they don’t have to depend on others is imperative!  It is unquestionable that this is what the Puducherry government led by Chief Minister V Narayanasamy has done so rightly! Who can deny this?
                                         It is a truly laudable step in the right direction to make them self-reliant especially in their initial years! This would make sure that young advocates are inspired to give in their very best to the profession right from day one without worrying much from the financial angle in the initial few years. They will be better trained as compared to those who don’t get anything and therefore lose interest in the legal profession of advocacy right from their formative years and thus get diverted into other professions! Who can deny this?
                                                 I have seen for myself that how not just lawyers in district courts and high courts but also in Supreme Court have shifted to other professions which includes teaching because there you immediately start getting good salary but in courts one has to wait for many years and still the earning is far below adequate! Who can deny this? I am ready to confront them!
                                          Even those lawyers who work with senior and eminent lawyers are hardly paid much except for a very few all across India and this explains why even young lawyers with exceptionally brilliant background but not having any relation in the legal profession tend to immediately shift to other fields like teaching etc or opt to appear in the judicial services exam and become a Judge where they start getting a decent salary very early in their life! This is a very dangerous trend that can never be good for the long term interests of judiciary and lawyering and must be checked immediately if the best talent is to be retained in the legal profession of lawyering and for this to happen it is imperative that the other Chief Ministers should also try and emulate what V Narayanasamy has attempted recently even though on a small scale which is truly laudable and worth emulating by all states and Union Territories!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 

Insult Of Jadhav’s Family Is Insult Of India

Coming straight to the key point, I fully agree with senior and eminent Congress leader Ghulam Nabi Azad that, “Insult of Jadhav’s family is insult of more than 130 crore Indians”. The moot question is: Why do our leaders of all parties speak strong language against Pakistan but never take any tough action against them? How long we will keep drinking poison like Lord Shiv and keep tolerating everything cheerfully? We are not Lord Shiv nor can we ever dare to even dream to become like him! Also, we should not forget that Lord Shiv certainly drank poison but he never tolerated insult and had not spared even the father of his consort Parvati when he insulted him publicly!
                                           But leaders of India are crossing all tolerable limits. They may shout against Pakistan, they may scream against Pakistan, they may demand terming Pakistan as Aatankistan as they did just recently in UN but when it comes to taking action themselves directly on the ground, they are just not prepared to do anything substantial! The Most Favoured Nation (MFN) status to Pakistan was given unilaterally to them in 1996 even though they kept sending terrorists to India most actively since 1989 onwards and forced lakhs of Kashmiri Pandits and all those Muslim families who helped them to leave Kashmir and live like a refugee in their own country!
                                          Dr BR Ambedkar never favoured special status for Jammu and Kashmir which Jawaharlal Nehru did which was his worst blunder but what is more tragic is that no PM till now has ever dared to set right that historical blunder. Article 370 was not there in original Constitution but inserted later after Ambedkar’s death! Why is it there still in Constitution?
                                When we treat Jammu and Kashmir as an integral part of India then why have we not fully and finally merged it with India? Why as former CJI JS Khehar rightly pointed has separate flag, separate Constitution and separate laws when we treat as an integral part of India? This open sham must end now once and for all if we are really serious in treating as Jammu and Kashmir as an integral part of India!
                                      Coming back to the main issue, Kulbhushan Jadhav who was wrongly kidnapped from Iran border by Taliban and later sold to Pakistan’s ISI was termed a terrorist and when his mother and wife were keen to meet him, they were made to wait for nearly two years and then humiliated in the most shameful manner! Which self-respecting country will tolerate this quietly? Why India keeps taking things lying down? Why Pakistanis are given a VVIP treatment in India and allowed to dine and enjoy with whomever they like? Is this really fair? Yet shamelessly our politicians allow this to happen most brazenly right under our very nose!
                                         It is not Sanjeev Sirohi but Ministry of External Affairs spokesperson Raveesh Kumar who disclosed to media after Kulbhushan Jadhav and his wife and mother – Chetna and Avanti returned to India along with Indian diplomat JP Singh who had accompanied them to meet Jadhav that, “Under the pretext of security precautions, the cultural and religious sensibilities of family members were disregarded. This included removal of mangalsutra, bangles and bindi, as well as a change in attire that was not warranted by security. For some inexplicable reason, despite her repeated requests, Chetana’s shoes were not returned to her after the meeting. We would caution against any mischievous intent in this regard.”
                                           What a national disgrace! If this thing were to happen with PM Modi’s family members or with even some Minister’s family members, would they still have given such muted response? Why do we tolerate so much everything quietly? Why can’t we pay back Pakistan in the same coin? This is the main reason why we are repeatedly subject to such insult time and again!
                                        Israel supports us but still we vote against them and reiterate our solidarity with Palestine! But see what Palestine does to us? Their leaders openly share platform with dreaded terror leaders like Hafiz Saeed who is leader of Lashkar-e-Taiba and reiterate their full support for Jammu and Kashmir’s integration with Pakistan at all cost and under all circumstances! Leaders like Farooq Abdullah don’t say a word when such shameful incidents happen but are quick to react otherwise at the drop of a hat and keep warning India against any measure to integrate them with India!
                                          Jadhav’s mother revealed that Jadhav kept on making tutored statement when she enquired him about the injuries. It was further revealed that Jadhav and his family were not allowed to speak in Marathi. Besides, the accompanying Indian diplomat Deputy High Commissioner JP Singh was initially separated from family members who were taken to the meeting without informing him. The Pakistani press was allowed to approach the family members closely, harass and hurl false accusations about Kulbhushan Jadhav. Kulbhushan and his mother were separated by a glass partition throughout the meeting.
                                      Indian leaders are squarely responsible for this! Why they lavishly throw dinners and parties for Pakistani leaders and invaders like General Musharraf who should not be allowed even an entry to India? Why they care a damn even when our soldiers are getting killed daily while fighting against their soldiers and terrorists trained and armed by their army and ISI?    
                                         At the very least, why can’t Centre revoke the unilateral MFN status conferred to them since 1996 thus disregarding the supreme sacrifices of our soldiers? Why can’t Centre declare Pakistan as a terror state instead of just demanding it once in a year in a UN platform or any other platform? Why can’t Centre expel all unnecessary Pakistani former diplomats fishing in troubled waters in India like Mehmood Kasuri?
                                          Why can’t Centre nuke all relations with Pakistan till they start behaving with us properly? Why can’t Centre revoke all benefits wrongly given to Pakistan under the Indus Water Treaty agreement signed with them in 1960? Why can’t Centre expel all Pakistani nationals from India like Kuwait did as they foment trouble and terror wherever they go?
                                             It is because politicians and not Pakistan are the real danger to India because they are ready to tolerate everything and compromise on everything! Justice Markandey Katju termed Pakistan and Bangladesh as fake countries who were created by Indian politicians. Jinnah himself said to a boy long time back “No my boy, you are an Indian first and then a Muslim!” The creation of Pakistan was an act of treachery and we are still suffering because of it! Even Khan Abdul Ghaffar Khan who was a Pakhtoonistan leader said, “What is this Nehru? You have made me a foreigner in my own country? What sense does it make?”
                                       Seventy years down the lane nothing has changed. Still politicians keep appeasing separatists and keep appointing interlocutors to engage them even as they collude with Pakistan and regularly get funds from them to bleed India and cut it by a thousand wounds! What difference does it make to our politicians?
                                        What an unbeatable irony that those who are so senior politicians with exceptional academic background and even coming from royal families and served themselves in elite services hail Pakistan invader Gen Musharraf as “Musharraf Sahab” and terror leader like Hafiz Saeed as “Hafiz Sahab”! Are they peons and chaprasis of Musharraf and Hafiz or are they engaged as servants by them? If not then why do they indulge in so much of servility? Are they getting some pay from them? Then why so much of chamchagiri?
                                   Kulbhushan Jadhav is an ex servicemen and an officer who served in the Navy! Why India tolerates his insult so quietly? India must react very strongly and our politicians must start behaving themselves if India is to gain its pride and prestige in the international forum!
                                       But most shockingly politicians never learn anything even after facing repeated terror attacks from Pakistan and this alone explains why many feel that, “Fear politicians and not Pakistan! What is Pakistan? Nothing but a fake country created by politicians of India in collusion with England who formerly ruled over us!”
                                      Justice Markandey Katju went to the extent of calling politicians as “rogues and scoundrels”. It is high time and politicians must salvage their ever sinking reputation by really acting tough against Pakistan as Subramanium Swamy advocates but he is not listened to even in his own party that is BJP! The day our politicians start acting tough against Pakistan it dare not take us for granted! It will start to behave itself! But the moot question is: When will politicians make that day to come? It is all in their hands alone!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkehra,
Meerut – 250001, Uttar Pradesh.

Govt Mulls Lifer For Repeat Offenders For Human Trafficking

Coming straight to the key issue, it is a matter of great satisfaction to learn that the government is now all set to introduce a new law to guard against human trafficking. It has proposed a 10-year punishment for those engaging in “aggravated forms of trafficking” while seeking life imprisonment for repeat offenders. Trafficking any person just for the sake of earning extra cash and thus ruining the entire life of that person  is a completely unpardonable offence which must invite the strictest of punishment. Even death penalty will not be too harsh and must be used as long as this death penalty itself is not abolished!
                                         To be sure, this landmark Bill which has been proposed to identify various forms of trafficking, including for the purposes of bonded labour, sexual exploitation, pornography, removal of organs and begging, has proposed severe punishment for those engaging in the heinous crime. Very rightly so! No leniency is warranted under any circumstances for such despicable and ghoulish crimes!
                                       To put things in perspective, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2017, initiated by the Women & Child Development Ministry, is currently with a Group of Ministers (GoM) that will take a final view on the matter. The draft Bill was released in May 2016. The Bill proposes the establishment of a national anti-trafficking bureau, which shall be entrusted with the gamut of issues aimed at controlling and tackling the menace under various forms. These include coordination, monitoring and surveillance of illegal movement of persons and their prevention.    
                                             It is noteworthy that the national anti-trafficking bureau will also be entrusted with increasing cooperation and coordination with authorities concerned with organisations in foreign countries for strengthening operational and long-term intelligence for investigation of trafficking cases, and driving in mutual legal assistance. This will certainly go a long way in ensuring that trafficking cases don’t go on unchecked and those involved in it are prosecuted and punished according to the law of the land! There can be no denying it.
                                   Let me bring out here that while listing out the ‘aggravated forms of trafficking’, the Bill speaks about offences such as bonded labour, by using violence, intimidation, inducement, promise of payment of money, deception or coercion. It also mentions trafficking after administering any narcotic drug or psychotropic substance or alcohol, or for the purpose of marriage or under the pretext of marriage. The aggravated form also includes trafficking for begging or forcing those who are mentally ill or are pregnant.
                                           No doubt, such aggravated forms of trafficking must invite the strictest punishment. Even lifer is not enough. It must invite death. No person can be allowed to indulge in trafficking of any person and then escape with just lifer! This is just not done under any circumstances!
                                         Let me also bring out here that this Bill proposes specifically that, “Whoever commits the offence of aggravated form of trafficking of a person shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to life imprisonment.” For repeat offenders, it suggests imprisonment for life “which shall mean imprisonment for the remainder of that person’s natural life”, apart from a fine that will not be less than Rs 2 lakh. I very strongly feel that for repeat offenders the punishment should be mandatory death penalty and fine should not be less than Rs five lakh.
                                             While craving for the exclusive indulgence of my esteemed readers, let me also inform them that as per data released by the National Crime Records Bureau (NCRB), human trafficking numbers rose by almost 20% in 2016 against the previous year. NCRB said there were 8,132 human trafficking cases in 2016 against 6,877 in 2015, with the highest number of cases reported in West Bengal (44% of cases), followed by Rajasthan (17%). How can all this be allowed to go unchecked and unpunished? This alone explains why this Bill proposes stringent punishment for those indulging in human trafficking!
                                        For my esteemed readers exclusive indulgence, let me also inform them that of the 15,379 victims who were caught in trafficking, 10,150 were female and 5,229 males. NCRB revealed that the purpose of trafficking included forced labour, sexual exploitation for prostitution; other forms of sexual exploitation; domestic servitude; forced marriage; child pornography; begging; drug peddling; and removal of organs. It is widely believed that the numbers recorded by NCRB are a far cry to actual incidences of trafficking as many cases went unreported with many people still unaware of the crime or lacking faith and confidence in seeking police help.
                                    As it turned out, for those engaging in ‘buying or selling’ a person, the Bill proposes rigorous imprisonment for a term not less than seven years which can be extended to 10 years with a fine upwards of Rs 1 lakh. It must be pointed out that the Bill also seeks punishment for those engaging in trafficking with the help of media, including print, internet, digital or electronic. It stipulates a punishment of not less than seven years which can extend up to 10 years and a fine of not less than Rs 1 lakh.
                                       It is also pertinent to mention here that it is provided explicitly that, “Whoever distributes or sells or stores, in any form in any electronic or printed form showing incidence of sexual exploitation, sexual assault or rape for the purpose of extortion or for coercion of the victim or his/her family members, or for unlawful gain, shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to seven years.”
                                             Truth be told, apart from the national bureau, the proposed Bill also aims at having state-level anti-trafficking officers who shall also provide relief and rehabilitation services through district units and other civil society organisations. The Bill also spells out measures towards relief and rehabilitation for the victims of trafficking. This is really commendable!
                                         What I like most about this proposed Bill is that in a sharp departure from the past, it does not treat a trafficked person as an offender but a victim. It has to be noted with deep regret that the existing laws do not take this laudable approach and instead most atrociously and unfairly treats both the trafficked person and the trafficker as criminals which under any circumstances can never be justified!  
                                         Be it noted, the Bill mandates that the constitution of District Anti-Trafficking Committee for every district. This Committee will perform various functions pertaining to the prevention, rescue, protection, psychological assistance etc of the victims. There will also be a State Anti Trafficking Committee to oversee the implementation of the law and advise the state government on matters pertaining to the prevention of trafficking and protection/rehabilitation of victims. A Central Anti-Trafficking Advisory Board will perform similar functions at the Union level.
                                                It cannot be lost on us that the Bill also takes into account various aspects of trafficking and the punishments as defined in Sections 370 to 373 of the Indian Penal Code. It also cannot be ignored that the Bill also aims to include other offences which are not dealt with in other laws for the purpose of trafficking, such as punishment for disclosing the identity of the victim, using narcotics/alcohol for the purpose of trafficking etc. The Bill stipulates mandatory reporting within 24 hours by a police officer, public servant, any officer/employee of protection homes or special homes having custody of the victim to the District Anti-Trafficking Committee or in case of child victim to the Child Welfare Committee.   
                                             Let me hasten to add here that a separate chapter on offences and the penalties is also a part of the Bill. It seeks to establish special courts in each district of the country and simultaneously also ensure that special prosecutors are appointed to fast-track the trials and increase prosecution. It also envisages the creation of a fund for rehabilitation of victims of trafficking.
                              It would certainly not amount to an exaggeration to say that the earlier this landmark proposed Bill is passed, the better it shall be in the interests of those who are trafficked and their families because it is they who are ultimately the worst affected in the whole process. Once this landmark Bill is finally approved by the Cabinet after giving it the requisite thoughtful consideration, it will then be tabled in Parliament where MPs of different parties would be free to give their valuable suggestions and then it will be referred to the Select Committee before being taken up for debate and getting it passed!
                                       It merits no reiteration that the menace of human trafficking has acquired serious proportions in last few decades. It has to be addressed on a war footing. This certainly entails strict punishment for offenders indulging in human trafficking and strictest punishment for repeated offenders! The Bill must be promptly enacted into a law and implemented swiftly and strictly to ensure that those indulging in it reap the consequences of their heinous acts and don’t escape lightly!
                                 All said and done, human trafficking is the worst form of crime for which there can be no justification. Those indulging in it must be awarded not just life term but death penalty also especially repeated offenders! Only then will a right, strong and clear message go out to all those indulging in it that they will have to face either life term or death penalty and also would have to pay a very heavy penalty not less than Rs 5 lakh for daring to indulge in it!
                                           It brooks no more delay and the punishment prescribed must be enhanced significantly especially in case of repeated offenders much more as I have spelt out so that those indulging in it are made to pay through their nose! Only then will it go a long way in serving as an effective deterrent in discouraging potential offenders from indulging in it! Hope so!              
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.   

BCI Mulls Ban On Practice By Lawmakers

Coming straight to the nub of the crucial matter, let me begin at the very beginning by first and foremost pointing out that it has been very rightly demanded by some eminent lawyers, activists and leaders in a letter written to the Bar Council of India (BCI) that those lawyers who become MPs and MLAs should be stopped from practising. The main ground on which they are demanding that the MPs and MLAs should be stopped from practicing is that they are drawing salary just like in any other profession. Then why should they be allowed to practice?
                                 More specifically, let me reveal here that a prominent BJP leader has requested the Bar Council of India to debar MPs and MLAs from practicing as advocates, saying that it was against the spirit of BCI rules which require advocates not to be engaged in any full-time trade, business, occupation or profession. There can be no denying or disputing it! The earlier this is done, the better it shall be in the long term interests of the legal profession which must have full time lawyers and not part time lawyers!
                                       Elaborating further, let me also reveal here that in a letter written to the BCI Chairman – Manan Kumar Mishra, the Delhi BJP leader Ashwani Kumar Upadhyaya who is also an advocate stated clearly and categorically that the practice of lawmakers doubling up as advocates also went directly against the Supreme Court’s landmark verdict in Dr Haniraj L Chulani v Bar Council of Maharashtra & Goa (1996). In this landmark verdict it was held that, “Legal profession requires full time attention and would not countenance an Advocate riding two or more horses at a time”. This merits prompt and positive response.
                                     It is heartening to note that the BCI has also taken serious note of it. This alone explains that why a high powered Committee constituted by it would deliberate and decide this all-important issue in next three days! Before deciding, it will certainly go into all aspects and consider each issue in detail!    
                                      Truth be told, the letter – a copy of which has also been sent to CJI Dipak Misra cited BCI rules to list out restrictions on MPs and MLAs on taking up any employment and sought to highlight that those working with the executive and the judiciary were not allowed to practice as advocates. Upadhyaya who had pointed out this glaring anomaly has termed it a violation of right to equality and right to non-discrimination guaranteed under Article 14 and 15 of the Constitution. Absolutely right!
                                  It would be pertinent to mention here that it has been noticed that several MPs and MLAs appeared as advocates during Parliament and Legislative Assembly sessions, which was not only immoral and unethical but also in violation of Rule 49 of BCI Rules. Upadhyaya wrote in his nine-page long letter dated December 18 that, “A legislator enjoys better salary, allowance and post-retirement benefits than members of executive and judiciary. It is an honourable and fulltime profession but does not remain noble merely by calling it as such, unless he is dedicated for welfare of people. Legislators are expected to put fulltime service to public and their constituents ahead of their personal interests. Nobility of the profession of law also has to be preserved and protected. Therefore, provisions of the Advocates Act and BCI rules must be given effect in letter and spirit to maintain clean and efficient Bar to serve the cause of justice.”  
                           To put things in perspective, according to BCI Rule 49 those who are drawing salary in any field are not entitled to practice as a lawyer. BCI Rule 49 reads as follows: “An Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an Advocate so long as he continues in such employment”.  The BCI will decide on this key issue in next three days. A high powered Committee has been constituted to look into this entire matter after a meeting held on this key issue decided on the same.
                                      Be it noted, BCI Chairman and senior advocate Manan Kumar Mishra said that, “The three-member panel is examining the provisions of the Advocates Act and the Bar Council of India Rules in this respect. They will file their report in the next few days.” Ashwini Upadhyay who filed the petition contended that MPs and MLAs draw their salaries from the Consolidated Fund of India, hence, are “employees of the state”. Upadhyay also submitted before the BCI that, “Under Section 21 of the Indian Penal Code and Section 2(c) of the Prevention of Corruption Act, MLAs and MPs are public servants. Hence, allowing them to practice as an advocate and restricting other public servants is arbitrary, irrational and violation of Articles 14-15 of the Constitution.”
                                            It is also noteworthy that Ashwini contended that it amounted to “professional misconduct” that MLAs and MPs who get salary and other benefits from the public fund, appear against the government. Some of these lawmakers even hold corporate retainer-ships. He also rightly submitted that, “They appear against the State to defend their lawbreaker clients in the Court of Law, which is the matter of conflict of interest.” The petition which Ashwini submitted also pointed out that while an advocate should be fully dedicated to his profession, legislators are also expected “to dedicate their fulltime to public and their constituents ahead of their personal and financial interests.”
                                         While craving for the exclusive indulgence of my esteemed readers, let me inform them that among the members of the Committee are DP Dhall, RG Shah and BC Thakur. According to the Prevention of Corruption Act, 1988, MPs and MLAs come under the category of public servants. In such circumstances, it is considered highly inappropriate that MPs and MLAs are allowed to still practice while other public servants are explicitly barred from doing so! The plea submitted by Ashwini very rightly submitted that the lawmakers – Members of Parliament and Members of the State Assemblies should be banned from doubling up as practising advocates, saying they are salaried public servants and cannot ride two horses at the same time.
                                          Isn’t this the worst case of hypocrisy, double standards and discrimination of the highest order? If this is not, then what else is? This has been allowed to happen since last more than 70 years but anyway it is better to be late than never. It must now be set right!
                                           Why MPs and MLAs are given relaxation everywhere? Why are they treated as above others? Why are the same rules not applied to them like others?
                                     They are many such grey areas and what is most unfortunate is that everywhere it is MPs and MLAs who have been given the long rope! No person can get any government job even if someone maliciously files a false case in any police station but to become an MP or an MLA even if you have many cases pending against you like late Phoolan Devi you can still freely contest elections! All such highly discriminatory practices must be thrown in the dustbin of history!
                                        Why MPs and MLAs alone have the unfettered right to increase manifold their salary without being checked by anyone when even Judges have no such similar rights? Why MPs and MLAs can fight elections even from jail? Why MPs and MLAs alone enjoy so many colonial privileges like providing many of them whomever the government of the day likes with the highest security at taxpayers cost? Why should they not be abolished?
                                             It still remains to be seen what the high powered Committee recommends on this. But I am quite certain that it will henceforth explicitly bar MPs and MLAs from practising and put a full stop to this entire controversy! It needs no rocket scientist to conclude that when BCI Rule 49 explicitly bars salaried class from practicing then why should MPs and MLAs be treated on a different parameter and exempted from the same when they not just get huge salary but also lots of other benefits like housing, vehicles, pension and a lot more!        
                                           All said and done, this should have been done a lot earlier probably right after independence. But seventy years down the lane we see still nothing being done till now in this direction. But again like a true optimist I would say that it is better to be late than never!
                                         It cannot be denied that a good beginning has been made by the Bar Council of India in this direction after getting complaints from leaders, lawyers and others. Let us hope that in the next three days we would see some decisive action on this. It is highly inappropriate that MPs and MLAs who don’t get time for even talking are allowed to continue as lawyers for namesake only!
                                    This must be discarded and I am  cent percent sure that now this will be done soon! A uniform policy must be framed to restrict the public servants, people’s representatives and members of the judiciary to practice other professions in violation of Articles 14 and 15 of the Constitution and such conflict of interest must be treated as criminal misconduct to check what has been going on unabashedly since last more than 70 years in our country!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Why Should Adultery Be Treated As Crime?

It is most astonishing to see that the colonial era law of adultery made in Britishers era is still flourishing with no real change being made in it. Many feel that women should also be punished as now she too stands on par with women, gets educated in best of institutions and gets the best of job and yet has no qualms  at all to indulge in adultery. They point out that in Jammu and Kashmir also both men and women are equally punishable then why not the same be applied all over India?
                                        To say the least, this is ridiculous argument and in the era of globalization we too must flow with the wind and appreciate that if something wrong is happening in Jammu and Kashmir then by the same token that cannot be extended to all other states as well! Two wrongs cannot make a right and where it is written that if once a wrong is done then it can’t be corrected? The adultery law in Jammu and Kashmir also must be amended to meet the present circumstances!
                                           It would be pertinent to mention here that many countries have decriminalized adultery and even England which ruled over us and made adultery punishable in India have also decriminalized adultery a long time back. Why can’t it then be now decriminalized in India also? It can certainly be decriminalized and it must be done forthwith!
                                     How can it be ignored conveniently that in 2012, a United Nations Working Group on laws that discriminate against women wanted countries that treat adultery as a crime, to repeal such laws? Is it not the duty of each of the countries who are members of UN which includes India who is a founder member to abide by it? Why can’t such an archaic and highly discriminatory law which most unfairly and unabashedly discriminates between men and women be promptly repealed?
                                                                        There can be no gainsaying the indisputable fact that a reconsideration of the law on adultery is not just long overdue but also it being decriminalized is most crucial!  This law of adultery which is right now before the Supreme Court has to pronounce now on the all important question which is an open question as to whether this Section 497 of the Indian Penal Code  really discriminates against men just on the basis of gender and gives not just an unconstitutional exemption to women but also abets her to indulge in it freely as she is not punishable at all under any circumstances! Is this really fair?
                                          To put things in perspective, while agreeing to issue notice to the government, the Bench has observed that the provision is archaic. It has also went further to observe that in a case of adultery, one person is liable for the offence but the other is absolved, and that the concept of gender neutrality, on which criminal law normally proceeds, is absent. The Apex Court has also noted that once the consent or connivance of the husband is established, there is no offence of adultery at all.
                                           Going forward, the Apex Court deems it as subordination of a woman and something that “creates a dent on the independent identity of a woman”. It is so shocking to see that a woman under the present law of the penal code is treated as a subordinate woman who cannot complaint of her husband indulging in adultery and also who can never be considered fit of giving consent! Why can a women be punished for theft, cheating etc but not for adultery? Why only the husband alone has the unfettered to prosecute an outsider for adultery?
                                             Most importantly, why should the offence of adultery be punished as a crime at all? Why can’t two adults who are consenting and willing be allowed to do what they want to do? Why should they be jailed for it?
                                         Why can’t India also like its former colonial ruler – UK decriminalize adultery and allow two consenting adults to do what they want to do? Why can’t India follow so many other countries who have all decriminalized adultery as they consider it to be no offence at all? Why can’t it be treated as their private affair?  
                                          Why burden courts with such useless case which is already overburdened with a huge backlog of pending cases thus consuming the precious time of the courts which can be utilised for pursuing other serious crimes like rape, gang rape, murder etc? Why do we disregard the irrefutable truth that it is one thing for adultery to be treated as a ground for divorce which is a civil proceeding and quite another for it to be made a basis for incarceration which is the most foolish thing that can be ever done which alone explains that why even UK has decriminalized it? When UK can do it then why can’t we do it?
                                          When so many other countries can do it then why can’t we too do similarly? Are we waiting to be the last country in the world to decriminalize adultery? We must introspect seriously!
                                        In a nutshell, criminalizing adultery cannot be justified under any circumstances. Every adult person must have the right to live a life of his/her choice! Why criminalize it? There can be no ground to justify it!
                                         Why punish those who are having sex with consent? Why can’t we come out of our medieval mindset? Why treat woman as “inferior person” who just does not understand anything when she decides to have sex with any men of her choice?
                                             Why put restrictions on women to have sex with any men of her choice? Why can’t it be left to the men and women to do what they want to do in their personal life as long as the sex is not rape? Why punish sex with consent?
                                               On a parting note, let me say this very clearly and categorically that law makers must step in and immediately decriminalize adultery as we see in so many other countries! We are living in a modern and progressive world. Why then should we follow British era rules and laws notwithstanding the irrefutable fact that even Britishers have decriminalized adultery in their own country?
                                   Why then can’t we also decriminalize it accordingly to meet the present circumstances? It is never too late! We must all understand this fundamental truth fully well! Most of all, Centre must act suitably and waste no time further in amending the law of adultery to meet the present circumstances by decriminalizing it accordingly!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.       

Lawyers Lead The Health & Wellness Vacation Trend

A new trend that can be observed is more and more people, and especially lawyers in seems, are packing their bags and heading for healthy holidays instead of the usual binge vacations where more beer is drank than water. This new trend can be observed by the number of fitness and weight loss retreats like this great one and many more in Bali, Thailand, India, and even in places like Mexico. They are capitalising on the fact that health and wellness is now the commonly held value of the majority of the population. It is especially clear in the educated populous, which is likely why we are seeing so many lawyers attending!

Lawyers Lead The Health & Wellness Vacation Trend

 In India there is an upward trend of both people attending this style of health holiday, and also new locations in tourist destinations such as Goa and Kerala where they are setting up new retreats to cater for the masses who wish to heal and lose weight. The one we attended in Bali was absolutely fantastic. It was compiled in three parts including a full detoxification to first cleanse the mind and body and allowing it to clear and heal before starting the training section of the program. The detoxification was possibly the highlight for us and for many others who accompanied us on the program, we felt so clean and pure after completing the cleanse and it set up perfect to lead into the remainder of the program where we really lost a lot of weight. Overall are experience was phenomenal and we can definitely see this trend continuing both lawyers and everyone else who cares about their health!

SC Dumps Draconian PMLA Clause Denying Bail

In a major relief to thousands of undertrials, the Supreme Court on November 23, 2017 very rightly struck down a draconian provision which can deny a person bail even if there is reasonable ground to believe that he or she did not commit the offence of money laundering. We are living in a democratic country in which every person has the right to live a free life. The State has no right to deny any person the right to live a free life on the slightest pretext just on the suspicion of having committed the offence of money laundering.
                                              Noting that the history of bail practices traces back to the Magna Carta, the Apex Court declared the draconian Section 45(1) of the Prevention of Money Laundering Act (PMLA) of 2002 violative of the fundamental rights to equality, life and personal liberty guaranteed under the Constitution. How can then it be allowed to continue? This alone explains why Supreme Court has very rightly dumped the draconian Section 45(1) of the PMLA which arbitrarily denies bail without any reasonable grounds whatsoever! There can be no denying this!   
                                        While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Bench of Justices Rohinton Nariman and SK Kaul, in their judgment, passed a general direction to courts to take up thousands of cases of undertrials who have been languishing in prisons, unable to get bail, because they did not satisfy the twin conditions under Section 45(1) of the PMLA. By all accounts, this is a landmark order which will benefit thousands of undertrials who will thus be set free and live a normal live just like all others! It certainly deserves unqualified appreciation because if this order had not been passed, many undertrials especially those who are poor would have continued to languish in jail for a long time!
                                            For my esteemed readers exclusive indulgence, let me also inform them that a Bench of Justices RF Nariman and Sanjay Kishan Kaul held Section 45(1) arbitrary and unjust because it allowed a Judge to deny bail to an accused charged with an offence that is punishable with more than three years in prison. It was held that, “We declare Section 45(1) of the Prevention of Money Laundering Act, 2002, in so far as it imposes two further conditions for release on bail, to be unconstitutional as it violates Article 14 and 21 of the Constitution of India”. As per Section 45(1), an accused could get bail only after the public prosecutor is given an opportunity to oppose the application and if the court is satisfied that the person is neither guilty of the alleged offence nor likely to commit the crime again on his or her release. Secondly, the court should reasonably believe that he is not guilty of the “predicate” offence for which he received the laundered money as proceeds of the crime. The Apex Court set aside all orders by which bail to an accused was denied due to the twin conditions and directed that such cases be remanded back to the respective courts to be heard on merits.
                                        Going forward, let me also reveal here that “predicate” offences include a range of crimes from 26 different laws from waging war against the Government of India to offences under the Narcotic Drugs and Psychotropic Substances Act, the Indian Penal Code to Wildlife Protection Act, Prevention of Corruption Act, Child Labour Law, etc. The Modi government had stoutly defended the stringent conditions on the ground that it was an attempt by the Parliament to get back the black money siphoned off from the economy. But the Apex Court held explicitly that the law leads to “manifestly arbitrary and unjust results and, therefore, violates Articles 14 (right to equality) and 21 (right to liberty) of the Constitution.” Justice RF Nariman, who authored the verdict, said Section 45(1) was violative of Article 14.
                                       Truth be told, the Supreme Court’s landmark judgment came on a clutch of petitions challenging the validity of Section 45(1) of the Prevention of Money Laundering Act. It must be noted here that the petitioners in the case had moved the top court after they were denied bail following the twin conditions. The petitioners argued that they were wrongly denied bail.
                                         As it turned out, the Apex Court gave them the liberty to approach the trial court afresh and said their bail petitions should be heard and decided expeditiously thus bringing a fresh smile on their face. It must be recalled here that the Prevention of Money Laundering Act, 2002 was introduced to make money laundering an offence and to attach property involved in money laundering. It was aimed to adequately deal with the serious threat to the financial system of India.
                                        To put things in perspective, though the PMLA Act was passed by the Parliament in 2002, it was brought into force only in August 2005. Thus, in other words, it started functioning only from August 2005. It must be borne  in mind that the Scheduled offences defined in PMLA comprise various offences, including some under Indian Penal Code, anti-drug law, Explosive Substances Act, Arms Act, Wildlife (Protection) Act, Immoral Traffic (Prevention) Act, Prevention of Corruption Act and Antiquities and Arts Treasures Act.
                                             Be it noted, it was argued before the top court by the petitioners that the two conditions made grant of bail virtually impossible in money laundering cases. Also, to satisfy them the accused will have to disclose their defence at a point in time when they are unable to do so. On its part the government urged the top court not to strike down the provision but read it down to make it constitutional.
                                                     However, the government’s argument was not accepted by the top court, which rightly said the provision had no rational relation with the grant of bail for the offence of money laundering. The two-Judge Bench of Apex Court pointed out a glaring anomaly pertaining to the bail provisions. Such stringent conditions of bail being granted only if the court is convinced that the accused is not guilty are not applicable when someone applies for anticipatory bail to prevent being taken into custody for charges of money laundering and what is worse is that once arrested, his sliver of hope of his/her chances of getting bail shall stand banished!
                                 In hindsight, the Apex Court, while hearing a batch of petitions and appeals challenging the constitutional validity of Section 45 of PMLA termed it as a “drastic provision” which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. It also said that, “Before applying such a Section which makes ‘drastic inroads’ into the fundamental right of a personal liberty under Article 21, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime.” It further went on to say that, “Without any such compelling state interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature. Merely ‘reading down’ the two conditions would not get rid of the ‘vice of manifest arbitrariness and discrimination’.”
                                      Needless to say, the Apex Court also very rightly pointed to one of the anomalies in Section 45 and said that anticipatory bail could be granted to a person who is prosecuted for the offence of money laundering which may last throughout the trial of the case against him. It said if the person is arrested for the offence of money laundering, then in order to seek regular bail, Section 45 will apply, which was an anomalous situation. So it had to be set right which was done!
                                     So, on a concluding note, it can well be rightly said that this landmark judgment validates what once legendary and most learned Judge of Supreme Court of India – Justice VR Krishna Iyer once famously said in a case that, “Bail shall be the rule and jail shall be the exception”! It must be welcomed with both hands by one and all! It will certainly ensure that thousands of undertrials don’t keep languishing in jail just because of this draconian PMLA clause Section 45(1) which has rightly been dumped by the highest court of India and are able to lead a normal life just like all other countryfellows! There is no reason why this landmark judgment should be not appreciated in most grandiloquent terms!  
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Judges Taking Over Executive Power Violates Lakshman Rekha: Jaitley

Let me begin at the very beginning by pointing out that while crossing swords with the judiciary, the government on November 25 questioned judicial activism and criticized the “trend” of courts appointing retired Judges to head Committees and wondered aloud how Judges would feel if other organs stepped in to do their job. The government certainly has a valid point. As for instance, we saw how the Supreme Court stepped in to decide whether it was correct to send back those thousands of Rohingyas refugees who had illegally crossed over to India following the persecution they faced in Myanmar.
                                            If Government feels that they are a potential threat to the national security and must be sent back that should be final. Judiciary must refrain from stepping in an area which exclusively belongs to the executive. We all know how our national security gets compromised as it had been in the past when we allowed crores of Bangladeshis to illegally stay back in India even after their country got independence from Pakistan! Why should India allow Rohingyas to go and settle in Jammu and Kashmir from where Kashmiri Hindus and those Indian Muslims sympathetic to them were forcibly evicted and compelled to live as refugees in their own country! Why no voice is raised for them? Do they don’t have human rights?
                                       Why is it being treated so casually that Rohingyas entering India and being transported not to some other state close to Myanmar so that they can be deported easily when things calm down but to such sensitive places like Jammu and Kashmir which is directly attacked by Pakistan time and again which can never be good for the national security? Why should Supreme Court even think about allowing them to stay there after PIL is filed in their favour? How can human rights of foreigners who have nothing to do with India be bigger than our paramount national interests? How can it be ignored that many Rohingyas had killed about 100 Hindus and burnt their houses before fleeing to India and have links with dreaded terror organizations like Lashkar-e-Taiba? How can Hafiz Saeed’s open call to Rohingyas to kill Indians be ignored while they are in India?
                                             To put things in perspective, while leading the charge was Union Finance Minister Arun Jaitley, who, addressing a session at the National Law Day function said that, “I have often heard an argument that judicial activism is born out of a phenomenon that other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power…by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears were pending, judges are not doing their job. So must somebody step in and now exercise that power? The answer is no…And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost. Once it is lost, there is no limitation on which area it will go into.”
                                               What Arun Jaitley has said must be treated with utmost respect because he is not just any other Minister or Finance Minister who in the past has also handled Law Ministry but he was also one of the most revered senior lawyer of Supreme Court who even represented Central Government on many occasions till a few years back before ultimately plunging himself fully into politics and becoming a Minister! He thinks a lot before speaking anything and is not the sort of person who would say anything just to remain in news! This alone explains why Centre has very rightly handed him the key Finance portfolio and even the Defence portfolio has also been handled by him apart from Law!    
                                         Be it noted, the session, titled ‘Judicial Review and Parliamentary Democracy – Balancing the Separation of Powers’, was organized by the Law Commission of India and Niti Aayog. Calling for caution while exercising judicial review, Jaitley said, “While exercising the power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise either legislative or judicial power. Parliament is not trained or really an institution to exercise judicial power. Judiciary is similarly not trained nor does it have that administrative maturity of exercising legislative power. In fact, if judiciary gets into the process of exercising executive or legislative power, directly or implicitly, the very institution of judicial review itself will suffer.” Judiciary must always bear this in mind what Jaitley has said!
                       It also must be borne in mind that Jaitley went on to talk of the “latest trend” of courts appointing “retired judges” to various committees to discharge executive functions. He said that, “Also this…new trend…alright, I don’t exercise the power myself (but) I will appoint my nominee to exercise the executive power, the nominees may be equally unsuitable to exercise the executive power because they have not been trained. Retired judges have been trained to write judgments…not to run sports organisations…Therefore this temptation of taking over executive power and exercising it yourself or through your nominees clearly violates the Lakshman Rekha (of separation of powers).”
                                     The moot question that arises here is: Why when judiciary exercises so much restraint that it has never till date ever ordered the creation of a single bench of high court in any part of India even though it is a judicial function and it understands the implications fully well of creating a bench in far off places due to which people have to face so many unnecessary inconveniences , it has never so ordered and always left it to the government to decide! The people of Uttarakhand from 1947 to 2000 till it became a separate state had to travel thousands of kilometers all the way to Allahabad to attend court hearings as there was no bench there but only one single bench had been created way back on July 1 in 1948 for such a big state like UP and that too in Lucknow which is just about 150 km away from Allahabad but Supreme Court never stepped in to save people from the huge inconvenience of travelling so far to Allahabad! Even now people of West UP about more than 9 crore of about 26 districts are compelled to travel all the way to Allahabad which ais about 700-800 km away from all these districts and benches and high courts of 8 states are nearer to West UP as compared to Allahabad still Supreme Court never stepped in!
                           As if this was no enough, Justice Jaswant Singh Commission headed by former Supreme Court Judge – Justice Jaswant Singh had recommended 3 benches of high courts to be created for West UP and hilly areas (now Uttarakhand) at Agra, Nainital and Dehradun but not a single bench was created even though on its order a bench was created at Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu! Yet Supreme Cout never said a word on it! In 2012, Centre created 2 more high court benches for Karnataka which already had a bench at Hubli for just 4 and 8 districts at Dharwad and Gulbarga but not a single bench for more than double of the districts – 26 of West UP yet Supreme Court never said a word on this! The 230th report of Law Commission had recommended creation of more high court benches in big states in 2009 buit Centre implemented it only in Karnataka which till now remains the only big and sole beneficiary of it yet Supreme Court did not say a word on it!
                                 This despite the fact that Ban ki Moon who was UN Secretary General had slammed UP and not Karnataka as “rape and crime capital of India” and maximum pending cases are in UP about 10 lakhs and in Karntaka it is less than 2 lakhs yet it was awarded 2 more benches but Supreme Court said nothing! West UP accounts for more than half of pending cases of UP as was testified by Justice Jaswant Commission yet Supreme Court never ordered creation of a bench here! Even former PM Atal Bihari Vajpayee demanded creation of a bench in Parliament but again Supreme Court kept aloof! It is no secret that maximum crime, maximum killings alkl take place in West UP yet it has no bench and UP tops the number of killings list of states and Bihar comes second yet UP has least benches in India and Bihar has none whereas peaceful states like Maharashtra, Karnataka and Assam have either 3 or 4 benches yet Supreme Court never stepped in even though it comes under its purview!
                               Truth be told, the lawyers of West UP have gone several times on strike as for instance for 6 months from July to December 2001, for 3 to 4 months in 2014-15 and have been striking work for more than 36 years every Saturday from May 1981 to December 2017 and is still continuing but judiciary has never stepped in to resolve this vexed issue! It has always chosen to kept aloof! Why has it never intervened for such a long time?
                                Truly speaking, the people of West UP who are litigants are compelled to travel whole night more than 700-800 km all the way to Allahabad without reservations many times and face many other inconveniences but judiciary never intervened! Why? When it can exercise itself restraint on this count where so many people have to face so many inconveniences which is a talking point everywhere especially in West UP then why can’t it act similarly in other cases also?
                               Warning that there would be no limits if the “Lakshman Rekha” is crossed, Jaitley said, “You probably (will) have a court saying where security forces are to be deployed is something which I will decide…” He added that if every high court were to decide on where security forces are to be deployed, for instance, “it’s an invitation to anarchy.” The Kolkata High Court had in October stayed the Centre’s move to withdraw Central forces from Darjeeling and Kalimpong districts, where they had been deployed during the recent Gorkhaland protests. This was subsequently lifted by the Supreme Court.
                           It has to be borne in mind that in his inaugural address, President Ram Nath Kovind who earlier has himself practised inm Delhi High Court and Supreme Court too touched upon the need for sepration of powers between the judiciary, legislature and executive, saying, “They need to be careful not to cross into each other’s defined spaces or give the opportunity to read transgressions where none is intended. This can occur in many circumstances. For instance, when extraneous comments and obiter dicta come to dominate public debates, crowding out of substantive understanding and deliberation of a well thought out judgment.”
                          It also cannot be lost upon us that earlier, addressing the inaugural session, CJI Dipak Misra asserted that judiciary was duty bound to stand with citizens if other organs of state encroached on their fundamnetal rights. He said that, “The fulcrum of governance – let it be legislature, let it be judicary, let it be executive – is that the citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment thery encroach upin it or there is an apprehension there shall be encroachment, the judicary is obliged to stand by them.”
                                   It is also of immense significance that the CJI sought to allay fears of judicial activism but stressed that it was the job of the courts to interpret government policies. He said that, “There is a perception that there is judicial activism. I must clarify. Protection of fundamental rights of each and every citizen is trhe sacrosanct duty of the judiciary which has been conferred on it by the Constitution. Fundamental rights have been expanded from the date the Constitution came into existence. Expansion of fundamental rights is done by the process of interpretation…Nobody intends, nobody has the desire to enter upon policy making areas. We don’t make policies, we interpret policies and that’s our job.” He has a point!
                                  Well said but again I must ask: Why Supreme Court has never ordered the creation of more high court benches in big states like UP and Bihar which are notorious for their lawlessness when even Union Cabinet Ministers like former Satyapal Singh have in past demanded the creation of 5 more benches at Meerut, Agra, Jhansi, Gorakhpur and Varanasi and considering the indisputable fact that Allahabad High Court is oldest in India completing its 150 years in 2016 and is biggest court in whole of Asia yet has least benches in India! All high courts come under the jurisdiction of Supreme Court still why has it never taken any action on this score?
                                 Why UP sends maximum MPs, maximum MLAs and maximum elected representatives and has maximum population more than that of Pakistan still has least benches and why when even Justice Jaswant Commission recommended creation of bench here in Agra was not a bench created here? Why Supreme Court till now has chosen to look the other way? Why has it never shown any activism in this regard not just in UP but for any other state as well? Why can’t it exercise such restraint in other areas also? It is high time and some serious introspection must be done and it must be always rememebred that “Even Judges are not infallible”! A good rapport is needed between executive, legislature and judiciary for running the country smoothly and clashes must be avoided by paying heed to what Arun Jaitley has said so elegantly! This is what our nation needs now!   
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

Strike By Lawyers Of West UP Every Saturday For 36 Years Is Most Concerning

To begin with, it is no ordinary matter that the lawyers of West UP have been on strike every Saturday since May 1981 to protest against denying West UP even a single bench of high court even though the Justice Jaswant Singh Commission had recommended the setting up of a high court bench at Agra apart from Nainital and Dehradun which are now in Uttarakhand but not a single bench was created anywhere. On the contrary, Centre took just no time to create a high court bench at Aurangabad in Maharashtra in 1985 on the recommendations of the Justice Jaswant Singh Commission as also at Madurai in Tamil Nadu and Jalpaiguri in West Bengal! It was then that the lawyers of West UP decided to set up a Central Action Committee to pursue the most sacred and legitimate demand for a high court bench by fighting for it relentlessly till it reaches its logical conclusion.  
                                    It needs no rocket scientist to conclude that it is the “poorest of the poor” people among the more than 9 crore people of all religions, castes, communities and sexes without any discrimination whatsoever who will stand to gain the maximum if a high court bench is created in West UP! What is the problem then in creating a high court bench for more than 9 crore people living in 26 districts of West UP in 2018 when a high court bench for Lucknow for just 12 districts was created way back in 1948 on July 1? Why even after 70 years is Centre not prepared to create a high court bench in West  UP even though the people are compelled to travel for about 700-800 km whole night all the way to Allahabad as there is no bench here and have to spend huge money for staying, lodging and other expenses? Why can’t all this be avoided by setting up a high court bench in West UP or by attaching 26 districts of West UP with Delhi High Court which is so nearby?
                                             Why the high court and benches of 8 states and above all even Lahore high court in Pakistan is nearer to West UP as compared to Allahabad? Why the lawyers of West UP were compelled to go on strike for 6 months from July to December 2001 demanding the creation of a high court bench in West UP yet no action taken? Can anyone in Centre even dream as to how the lawyers managed to strike for so long thereby depriving themselves from livelihood for full 6 months and how they struggled to meet their daily end yet no bench created?
                                      Even in 2014-15, the lawyers of West UP went on strike for 3 to 4 months and even boycotted Lok Adalats and protested whole night outside the court but again Centre just gave empty assurances but nothing materialized on ground! Even in 2009, the lawyers of West UP went on strike and even called a bandh in whole of West UP to protest the decision to not create a single bench here! Even in 2010, the lawyers of West UP went on strike for a month demanding bench.
                                                      Most recently, the lawyers of West UP went on strike for a week from 14 October to protest against the Governor of West Bengal Kesarinath Tripathi being accorded a guest honour in CCSU and while staging peaceful protest, many senior and eminent lawyers among others got injured badly, the most prominent being Chaudhary Narendrapal Singh, OP Sharma, MP Sharma and Vinod Rana among others as Kesarinath Tripathi had opposed the creation of a bench in West UP in 1995-96 when Mayawati wanted the same to be done and had infamously said that, “Creation of a bench in West UP will be over my dead body”. Why this hatred for West UP? Have people of West UP ever opposed the creation of just one bench for whole of UP in Lucknow which is just 150 km away from Allahabad where high court itself is located? If Lucknow is capital then so are Bhopal, Bhubaneshwar, Dehradun and Thiruvananthapuram among others?   
                                      Why a high court bench at Port Blair for just 3 lakh people, a high court for just 6 lakh people of Sikkim, for just few lakhs of people of people in Manipur, Meghalaya and Tripura as also in many other smaller states? Why a high court now for Uttarakhand since 2000 for just 88 lakh people but not even a bench for more than 9 crore people of West UP? Why such a raw and third rated treatment for them?
                                             Recently, President, PM and Chief Justice of India among others wished the nation on “Constitution Day” and everyone reiterated the dire need to make justice accessible to poor people! But I fail to understand why since last 70 years a single bench has been denied to West UP thus compelling people to travel without any reason so far to Allahabad to get justice? Why when 230th report of Law Commission recommended creation of more high court benches was it not implemented in big states like UP and Bihar which top in the crime rate, murder rate and still UP has just one bench and Bihar has no bench even though Law Minister Ravi Shankar Prasad is from Bihar? Why more than half of pending cases from West UP as acknowledged even by Justice Jaswant Commission yet no bench created here?       
                                         Why for a peaceful state like Karnataka 2 more benches were approved in 2012 at Dharwad and Gulbarga for just 4 and 8 districts even though a bench existed at Hubli even though the pending cases are less than 2 lakh and that of UP stands at more than 10 lakh pending cases? Similarly why many other states like Maharashtra and Assam have 3 and 4 benches but for UP which has maximum population more than 22 crore as CM Yogi Adityananth keeps boasting still has least benches in India inspite of having maximum pending cases in high court about 10 lakh and more than 58 lakh in lower courts?
                                          Why maximum MPs, maximum MLAs, maximum villages more than 1 lakh whereas in other states the number is not more than few thousands at the most, maximum districts, maximum crime etc all in UP yet least benches here? Why former UN Secretary General Ban ki Moon slams UP as “crime and rape capital of India” still we see least benches here and here too West UP which accounts for maximum crime has least benches? Why even leaders of BJP as also other parties are repeatedly killed by criminals without any fear and crime rate is exceeding so much that even foreign tourists are not spared as we saw a Swiss couple beaten up badly in Agra still no bench here? Why even 100 year old woman is raped by criminals without any fear still no bench here?
                               Why Centre does not have pity on more than 9 crore people of West UP in whose support lawyers have been waging agitating for a bench since independence and which has intensified since 1981 when lawyers decided to strike every Saturday and make sure that no lawyer does any work on this day and unitedly demand the creation of a bench here? Why lawyers even started striking many times even on Wednesdays yet Centre took no notice? Why even Atal Bihari Vajpayee demanded bench for West UP inside Parliament yet no action?
                                         Why all Union Ministers, MPs and MLAs have unitedly demanded creation of a bench here yet no action? Why for 36 years lawyers of West UP have been striking which should find entry even in Guiness Book of World Records for most period of strike still no bench is being created here? Why in 1955 the then UP CM Sampoornanand had demanded the creation of a bench in Meerut but Centre didn’t agree even though Lucknow had a bench since 1948?
                                             Why this stupidity that the people of Uttarakhand had to travel thousands of kilometers as it had no bench and for more than 50 years were compelled to travel all the way to Allahabad as a single bench was created at Lucknow in 1948? Why bench was not approved for any other place? Why even after 70 years nothing has been done to remedy this grave injustice? Why inspite of population of West UP being more than any other state except Maharashtra and Bihar and here too areawise Bihar with 94000 square km is smaller than West UP with 98000 square km still it has no bench?
                                    Why inspite of repeated assurances by successive governments in Centre was nothing done to fulfil it? With what face is Centre denying a bench even now when Amit Shah who is BJP national President and Rajnath Singh who is Union Home Minister had repeatedly assured that a bench would be created once NDA comes to power in Centre and in UP? Why Centre feels that even if lawyers of West UP strike for 100 more years nothing will change?
                                      Why only lip service of “speedy justice”, “justice to be made accessible to the poor” and “justice at doorsteps” if no step is taken to create a bench in West UP where incidents of crime are touching dizzying heights? Why Centre fails to appreciate that lawyers of West UP striking since such a long time for 36 long years every Saturday and regularly holding meetings after meetings to chalk out new strategy to push forward the surge of creating a bench can be resolved only by creating a bench here in any of the 26 districts wherever Centre wishes to do so? Is it such a big deal?
                                       Should it not be done immediately? It is the litigants who will stand to gain and here too it is the “poorest of poor” who will benefit most if a bench is created here and all strikes every Saturdayand sometimes even on Wednesday and sometimes for 6 months in a row will become a matter of past! Does Centre not wishes this happens?
                                              Why then it refuses to take any action on this score? Why is Centre not taking some action to ensure that this more than 36 year old strike by lawyers of West UP is brought to an end by mutual deliberations, discussions and decisions? Why is decision on this score being postponed inordinately when a bench was created at Lucknow in 1948, in Dharwad and Gumbarga for just 4 and 8 districts and in many other places even though the law and order situation is worse in West UP as compared to any other place for which benches were approved? Why can’t Centre stop coughing preposterous excuses and create a bench in West UP by which more than 9 crore people will gain in equal measure?
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.    

Can Convicted Politicians Head Political Parties?

It must be said at the very beginning that there can be no two opinions about the indisputable fact that in India a lot of cleaning is required in political parties because politics has become quite a murky affairs as anyone can not just enter politics but even head political parties inspite of being convicted. It is also unquestionable that political parties are most reluctant to do anything on this score and let us not live in a fools paradise by hoping that their stand would change somehow in the coming years. So, it needs no rocket scientist to conclude that Supreme Court must step in and bar convicted politicians or even politicians who have serious criminal charges against them from heading any political party or from even being a member of it.
                                        While craving for the exclusive indulgence of my esteemed readers, let me also inform them that the Supreme Court on December 1, 2017 sought the responses from the Centre and the Election Commission on a plea seeking to restrain convicted persons from forming political parties and becoming their office-bearers for the period they are disqualified under the election law. Can convicted politicians who incur disqualification to run for elections, head political parties? This question will now be dealt by the Supreme Court after a public interest litigation (PIL) suggested that political parties headed by convicted persons should be derecognized by the Election Commission.
                                             For my esteemed readers exclusive indulgence, let me also inform them that a Bench of Apex Court comprising of Chief Justice of India (CJI) Dipak Misra, Justices AM Khanwilkar and DY Chandrachud sought the response of the Centre and Election Commission in this regard.  This Bench headed by CJI Dipak Misra while asking whether the court could stop a person from propagating his political views, agreed to examine the Constitutional validity of Section 29A of the 1951 Representation of the People Act (RPA) which deals with the power of the poll panel to register a political party. The Court clarified that it was only dealing with the question whether the power of Election Commission to recognize political parties under Section 29A of the Representation of Peoples Act 1951 will also carry with it the power to derecognise such political outfits headed by convicted netas.  
                                                Needless to say, if an order is passed banning convicted netas, it is bound to take within its fold the Rashtriya Janata Dal (RJD) whose chief Lalu Prasad is a convicted person and he will be worst affected by it. The fate of another important leader Sasikala, who claims to be the political heir to Jayalalithaa and who would have become Chief Minister if she was not convicted for corruption in a disproportionate assets case will also hinge on the outcome of this petition as she is presently in jail. Without getting personal, let me mince no words in stating unequivocally and unambiguously that all convicted politicians must be barred entirely not just from heading parties but also from being associated with politics in any manner as they are just not fit for it.
                                      Let me be upfront in saying: The real problem in India is that there are no parameters for politicians. Are politicians coming from some different planet? If not then why are they treated with kidgloves?
                                 Let me also be upfront in saying: Even for getting a very small job one has to be a minimum graduate nowadays but for becoming an MP or MLA or for heading a political party there is no such minimum educational qualification which is a huge mockery and an open travesty of justice which must be set right without forwarding any excuse of any kind! Why there is a proper police verification for getting any job no matter how small it may be but for becoming an MP or MLA, you can like Phoolan Devi indulge in mass murders or any other crime and yet no one can stop you from taking oath not just as an MP or MLA but also as Ministers and slam the charges as “politically motivated”! Why any person cannot vote from jail but contest elections from jail? Why are those who are in jail allowed to contest from jail?
                                          It is also worth asking: For how long will our democratic system be held hostage to such criminals and for how long will they be given a long rope? Why only politicians alone for whom the standards of recruitment must be comparatively much higher than other professions because they have a share in every pie and exercise untrammelled power in every field are given relaxations everywhere and are allowed to hold the entire system to hostage and make an open mockery of our democratic system? Why can’t politicians be also made accountable like others? Why politicians like Vijay Mallya who is a former Rajya Sabha MP are allowed to take huge loan of more than Rs 9000 crore and then allowed to flee India and enjoy luxurious live in London in UK with that money which is taxpayers hard earned money? Why special treatment for them alone?
                                               Be it noted, senior advocate Siddharth Luthra who is appearing for the petitioner Ashwini Kumar Upadhyay submitted that convicted politicians are barred from contesting elections but they indirectly call the shots by heading a political party and hold posts in them. He said rightly that if a person on conviction in a criminal case was barred from contesting elections, it would be incongruent to allow such person to form or head a political outfit. The plea said convicted politicians, who are barred from contesting elections, can still run political parties and hold posts in them, besides deciding as to who will become a lawmaker.
                                      Not stopping here, the plea has sought a ban on convicted persons from forming a political party and becoming office bearers for the period they are disqualified under the election laws. It has sought a direction to declare Section 29A of the Representation of the Peoples Act 1951 as “arbitrary, irrational and ultra-vires” to the Constitution and to authorize the poll panel to register and de-register political parties.
                                               Why should convicted netas have a say in deciding as to who should become a law maker? Why should they not be barred from heading political parties also? Why no action till now in this regard?
                                  Truth be told, the PIL sought framing of guidelines to decriminalize the electoral system and ensure inner-party democracy as proposed by the National Commission to Review the Working of the Constitution (NCRWC). The petition very rightly said that currently, even a person who has been convicted for heinous crimes like murder, rape, smuggling, money laundering, loot, sedition, or dacoity, can form a political party and become its president or office bearers. The petition named several top political leaders who have been convicted or have charges framed against them and were holding top political posts and “wielding political power”.
                                     Going forward, it said the proliferation of political parties has become a major concern as Section 29A of the Representation of the People Act, 1951, allows a small group of people to form a political party by making a very simple declaration. “Presently about 20 percent of registered political parties contest election and remaining 80 percent parties create excessive load on electoral system and public money,” the plea said and rightly sought the implementation of the 1990 Goswami Committee on electoral reforms. The plea also claimed that in 2004, the poll panel had proposed amendment to Section 29A, authorizing it to issue apt orders regulating the registration or de-registration of political parties.
                                            It is noteworthy that senior lawyers Siddharth Luthra and Sajan Poovayya informed the Bench that under the statutory schemes, the poll panel was empowered to register political parties but it lacked the authority under the Representation of the Peoples Act 1951 to deregister them. But the Bench while not giving a final order on this and fixing the plea for hearing after six weeks hastened to ask that, “Can a court restrain a convicted person from forming a political party? Can you stop a man from propagating his political views? It would be against the freedom of speech and expression to debar a convicted person from propagating political views through a party”.
                                    With due respect to Supreme Court, I would like to ask: Why are candidates barred from any government job if even their name is falsely dragged in by their rivals? Why only politicians alone are given the long rope? Why is it conveniently ignored that it is politicians who are running this country and therefore there must be highest standards for them in all respects otherwise we will continue seeing MPs and MLAs bunking session even when important Bills are being presented and not just this but also throwing papers on Speaker and using filthy language in court and resorting to all sorts of uncivilized acts?
                                       Why can’t they also be treated like others? Why recognition of political parties is not cancelled when their supporters indulge in wanton violence and destruction of public and private property and why are they not compelled to pay for all the damage inflicted by them or their supporters with their active blessings? Why even after raping and killing are they shown undue leniency but applicants for all government jobs are not shown any such kind of leniency?
                                           Which job can be bigger and more prestigious than that of politicians who become MPs, MLAs, Ministers, Chief Ministers and even Prime Minister? Still why no strict parameters for them? It is high time and this must change now. The earlier this is done, the better it shall be for the healthy functioning of our democratic system because it is politicians and politicians alone who are the bedrock of democracy and exercise control in every sphere in our country! Can anyone dispute this also?
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.   

Karnataka Assembly Passes Anti-Superstition Bill

To begin with, it must be appreciated that the ruling Congress Government in poll bound Karnataka has finally on November 16, 2017 got the controversial “Anti-Superstition Bill” passed unanimously in the ongoing winter session of the Karnataka State Assembly to eradicate evil practices with some minor amendments. It is largely based on the Maharashtra model. The much-delayed, much-hyped and hotly debated “Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Bill, 2017” which is popularly known as the “Anti-Superstition Bill has finally been passed by the State Assembly by a voice vote.  
                                      It may be recalled here that this Anti-Superstition Bill was earlier cleared by the Karnataka Cabinet on September 27. The Bill has exempted stamping of mudras on the body which is a practice in the upper caste community (Madhwa Brahmins), but advertisements that offer miracle cures for diseases have been banned. The Bill bans “Vashikarna” which is an occult practice of subjugation and also bans performing Vashikarana or advertising about it.
                                 Truly speaking, a Cabinet meeting which was presided over by Karnataka CM Siddaramaiah cleared the Bill to protect people against evil and sinister practices and to combat and eradicate inhuman, evil and sinister practices propagated/performed in the name of the “supernatural” or “black magic”. Law and Parliamentary Affairs Minister TB Jayachandra told the media after the Cabinet meeting that the Bill proposes to ban ‘made snana’, which is practiced at Kukke Subrahmanya temple in Dakshina Kannada district in violation of human dignity.     
                                  Be it noted, Janata Dal (S) President HD Kumaraswamy requested that the Government ban the practice of conducting poojas in Government offices. He has a valid point. This will certainly minimize superstition to some extent and this is exactly what is the basic aim of the Anti-Superstition Bill that has been passed recently.
                                    While craving for the exclusive indulgence of my esteemed readers, let me inform them that performing any black magic, inhumane act and evil practices in search of treasure or bounty, tantric acts which include physical and sexual assault will be banned as per the Bill. Rituals of exorcism, assaulting people under the pretext of exorcism, misinformation and creating a panic-like situation under the pretext of ghosts and black magic comes under the purview of the Bill. Very rightly so!  
                        It also gives me immense satisfaction to note that not everything is banned under this Anti-Superstition Bill. Any form of worship including pradakshine, yatra, parikrama at any religious shrines, harikatha, keerthana, pravachana, bhajans do not come under the purview of the Bill. It is also noteworthy that providing knowledge of ancient arts and practices, speaking about miracles performed by deceased saints and literature on them offering prayers, upasana, religious rituals at places of worship or at people’s homes, religious celebrations, festivals, processions, piercing of ears and nose, shaving of head, astrology and vaastu are considered acceptable under the Bill.
                                For my esteemed readers exclusive indulgence, let me also inform them that among other things, it seeks to ban the controversial ‘made snana’ ritual (where devotees roll over plantain leaves with leftover food) in public/religious places. It primarily seeks to protect people against evil and sinister practices and combat inhuman and sinister practices propagated/performed in the name of “supernatural” or “black magic”. In all, 16 practices  are banned under the legislation.   
                                      It needs no rocket scientist to conclude that organizing macabre and bizarre rituals, offering magical cures which is just not practically possible and threatening people with dire consequences as for instance incurring the peril of divine or supernatural displeasure are also covered by this law. It is very sad to note that some people are condemning it without even understanding it properly or knowing even the ABC of this highly commendable law which deserves to be implemented not just in Karnataka but all over the country as a whole. We all know how people are made fool by many of those who have made it their open loot in the name of God. So I am very happy to note that Karnataka Government has made some commendable effort to check this which has to be lauded without any “ifs” and “buts”.        
                                         It also must be appreciated that this Anti-Superstition Bill of Karnataka has tried to draw a distinction between religious traditions and superstitious practices. It has borrowed some features from Maharashtra’s law also against black magic and other evil practices. Those who term this Anti-Superstition Bill of Karnataka as violating the right to practice and propagate one’s religion under Article 25 of the Constitution are way off the mark because certainly reasonable restrictions can be placed on the right to practice and propagate one’s religion which under no circumstances can be “unfettered and unlimited”.   
                                      Truth be told, we all keep seeing for ourselves so many times reports of most bizarre rituals being carried out openly right under the nose of the administration without facing any restrictions whatsoever. It must be reiterated that among the rituals, this Anti Superstition Bill outlaws explicitly the ‘urulu seve’ which is also known as ‘made snana’, in which devotees roll over food leftovers, the irrational practice of walking on fire, branding children and piercing one’s tongue or cheeks, human sacrifices, pelting stones in the name of sorcery (banamathi, mata-mantra), claiming to perform surgery with fingers, or claiming to change the sex of foetus in the womb and worst of all, ‘betthale seve’, where women are paraded naked as also sexual exploitation by invoking supernatural powers. This is most shocking!
                             What is wrong in outlawing such not just irrational practices but also dangerous and harmful practices by which those practicing it are harming themselves the most as also their very own children whom they profess to love the most yet foolishly indulge in such bizarre practices which should have no place in any civilized society under any circumstances whatsoever as they are completely inhuman and most exploitative carried out by those who exploit innocent and illiterate people for their own petty vested interests? In other words, no time should be wasted by all states in emulating Karnataka’s worthy Anti-Superstition Bill so that millions of innocent people are saved from being duped, harmed and exploited in the worst possible manner! The earlier this is done, the better it shall be in the supreme interests of millions of ordinary people in the longer term who are very easily fooled by those running business in the name of superstition who must be jailed and penalized heavily so that it acts as a “potential deterrent” to refrain from indulging in such abhorrent practices!  
                              On a concluding note, Karnataka State Government certainly deserves all the applauds and appreciation for having dared to bring in such a commendable Anti-Superstition Bill at the risk of antagonizing many illiterate voters who believe blindly in all such superstitions but this alone is not enough. All States must emulate it and further make more improvements wherever possible! It must be followed by many awareness campaigns so that people are educated properly on this score. Unless this is done on a war footing and on a mammoth scale just a tough law alone won’t act as a potential deterrent and people will continue to be fooled by those “spineless crooks” who believe in running their own shops at the expense of ordinary people!   
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.