What’s more, it is then pointed out by the Youth Bar Association of India in para 8 of its petition that, “That it is of utmost necessity that present situation may be addressed and meaningful directions may be issued for interest of justice in large public interest.” More importantly, para 8 then mentions the grounds which justify the issuance of directions by the Supreme Court for filling up the judicial vacancies. The numerous grounds which have been mentioned are as follows:-

1. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.

2. Because judiciary is a limb of the democracy. It should not be left bare handed to cause its own work done. Not providing adequate human resource to cause its function perform is nothing less than impeding dispensation of justice. Justice, socio-economic or political are the constitutional goals aspired by the founding fathers. Preamble of the Constitution containing the collective aspirations of the framers of the Constitution forms part of a basic structure. It provides that ‘justice’ as the basic features for democracy to survive. Any obstruction in the dispensation of justice shall amount to deviation from the aspirations of Constitution makers. Wait for long to get justice in the want of sufficient strength of judges is impliedly an impediment in the dispensation of justice.

3. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed under Section-151A of THE REPRESENTATION OF THE PEOPLE ACT, 1951 as well as under ARTICLE 62(1) AND (2) OF THE CONSTITUTION OF INDIA, which deals with the specific time of the appointment to be done in case of the President of India and that is being strictly observed while making appointment but while in appointment of judges although having prior information regarding the retirement of the Hon’ble Judges still no effective steps are taken to fill up those vacancies.

4. Because speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of adequate judges or financial resources. The state may have its financial constraints and expenditure but the law does not permit any government to deprive its citizens of the constitutional rights on plea of poverty.

5. Because the Right to Speedy Trial is considered as a Fundamental right of the citizen of this country which has been explicitly dealt by this Hon’ble Court in Hussainara Khatoon Vs State of Bihar AIR 1979 SC 1377 in the year 1979 and this right is implicit in ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA. It is the constitutional obligation of the government to devise such procedures as would ensure and implement speedy trial. This Hon’ble court being majestic authority has to act as guardian of Fundamental rights of the citizens.

6. Because Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice.

7. Because ‘Justice delayed is justice denied’. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself.

8. Because the leniency shown by the Government by the way of withholding the recommended names from this Hon’ble court for the appointment of judges in High Court for a long period of time without any justification increases the vacancy at its peak. It is important to maintain the ratio of judges to the population for the fast as well as timely disposal of cases.

9. Because in Supreme Court Advocates-On-Record Association vs. Union of India (1993) 4 SCC 441 in its para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice Of India and in the case of High Court by the Chief Justice of that High Court…..”. Thus, duty is cast upon the Chief Justice of the concerned High Court to fill up the vacancies but despite a huge number of vacancies, the Hon’ble High Court is not proposing enough names to fill up the vacancies.

10. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries i.e. legislature and executive.

11. Because primacy to be accorded to Hon’ble Chief Justice of India’s views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. Therefore, the government cannot sit idle over the recommended names by this Hon’ble Court.

12. Because as per the Article 50 of the Constitution of India for the very specific purpose of independence of judiciary, a direction is given to take steps to separate the judiciary from the executive in the public services of the State.

13. Because the citizens of this country being frustrated due to the long pendency of the cases and dates after dates started losing faith on judiciary and it may lead to the worst situation in the upcoming time that the society will start taking law in their own hands and the ultimate sufferer in whatever situation may be are the common and poor people of this country.

14. Because the main intention of the framers of the constitution in regard to judiciary was to carry out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution. In that sense the judiciary has to act as a sentinel on the qui vive. But the intention of the framers of the constitution is not adhered to at its inception by not appointing judges as per the sanctioned strength.

15. Because the young lawyers who have opted law and litigation as means to live with the dignity are on the verge of extinction due to prolong delay in disposal of the cases. The inordinate delay caused in conclusion of the cases hampering, on the one hand, entire justice administration, on the other hand, affecting adversely the young lawyers striving for a securing career.

16. Because the reputation of the institution is at the stake. Unexplained delay in filling up the vacancies and delayed disposal of cases consequent thereto impeding the trust and the faith of not only the sufferer but also the common people in this institution.

17. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.

18. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed in Section-15A of THE REPRESENTATION OF THE PEOPLE ACT, 1951. The above said section states as follows-

‘151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. – Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy: Provided that nothing contained in this section shall apply if-

(a) the remainder of the term of a member in relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period’.”

19. Because it is further stated that even in the case of filling up the vacancies in the office of the President Article 62(1) of the Constitution of India has clearly stated that “an election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term” and Article 62(2) of the Constitution of India states that “an election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of the occurrence of the vacancy; and the person elected to fill the vacancy shall subject to the provisions of Article 56 be entitled to hold the office for the full term of 5 years from the date on which he enters upon his office”.”

20. Because it is an admitted fact that judiciary, in this country is the last resort and faith left to a victim as well as to an aggrieved person. The citizen of this country comes before the judiciary with a hope to get justice and justice within time. Even the same was also the intention of the maker of the Constitution of India, but unfortunately the interest of that intention is not taken care of. It is further submitted that in case of vacancy of legislative bodies, by-election is being conducted and the vacancy is filled up but in case of judiciary it is being given a step motherly treatment.

21. Because for instance it may be mentioned here that the Calcutta High Court has a total strength of 72 but there has been no appointments as per the sanctioned strength, which resulted into huge protest. The question arises here that who is responsible for such a huge vacancy? The answer of this question is very well enumerated in the case of ‘Supreme Court Advocates-on-record Association vs. Union of India’ (1993) 4 SCC 441. In para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court…..”.

22. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries – legislature and executive. Indeed, it is role of the judiciary in carrying out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution.

23. Because the delay in appointment of the judges is not only destroying the functioning of democracy but also leading towards the lawless society which also violates the main intention of the maker of the constitution.

24. Because this Hon’ble Court in Supreme Court Advocates-On-Record Assn. Vs Union of India (1993) 4 SCC 441, it has been explicit in giving primacy to the opinion of Hon’ble Chief Justice of India. It is pertinent to mention herein that in para 478(8) it is clearly stated about the instances of non-appointment which are permissible and justified.

25. Because due to the non-appointment of judges increases the huge backlog of pending matters awaiting disposal at the High Court. It is pertinent to mention herein that disposal of cases is a “must” and should mean ‘disposal with a decision’ and not merely “striking out” from the list of pending matters. The non-appointment of judges is more than painful for the judiciary which universally professes that “delayed justice almost amounts to denial of justice”.

26. Because the central government is sitting idle over the subject matter neither paying any heed to the representation submitted by the Bar Association nor giving any valid reasons in writing for withholding the clearance of names of the judges which are already cleared by the Hon’ble Chief Justice of India.

27. Because the concept of separation of powers is a well-known fundamental political maxim which many modern democracies have adopted. Our Constitution has not strictly adhered to that doctrine but it does provide for distribution of powers to ensure the one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of third great country. There can be no two opinion at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. Even though on the question that our judiciary should be independent of the executive and the legislature there is no divergence of views at the Bar, there was some difference of opinion on the actual content of the concept.

28. Because the Constitution makers strived to ensure that justice promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference as is wrtit large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respectively, manifesting the confidence of the people in the court’s ability to do justice. By Article 50 of the Constitution of India a direction is given to take steps to separate the judiciary from the executive in the public services of the State. The offices of the Attorney General and Advocates General have been given constitutional status with a view to making quality legal advice available to the Union and the States so that they function consistently with the rule of law and safeguard public interest.

29. Because the concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as ‘pater families’ of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares, i.e., first among equals, while on the administrative side he enjoys limited privacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-à-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-à-vis the views of his colleagues, more so if he has expressed them after assessing the views of his colleagues but his view will not eclipse the views of his colleagues forbidding the President, i.e. the executive, from relying of them. The weight to be attached to his views would be much greater as compared to the weight to be accorded to the views of the other consultees under Article 217(1) since he has had the advantage of filtering their views and ordinarily his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i.e. executive, from noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the constitution, e.g. Article 222(1), more so when it concerns a member of the judicial family and ordinarily his view should be accepted and acted upon by the President, i.e. the executive, unless there are compelling reasons to act otherwise to be recorded in writing so that the apprehension of the executive having acted in a manner tantamounting to interference with judicial independence is dispelled.

30. Because the Framers of the Constitution placed a limitation on the power of the Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior ‘consultation’ with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation with the Judiciary is defeated. Therefore, there should not be any doubt regarding the basic intention of the constitution makers that the Executive is bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Articles 124(2) and 217(1) of the Constitution.

Frankly speaking, there is no reason why the Supreme Court should not issue writ as prayed by the petitioner in the nature of mandamus, orders or directions to the respondents to immediately appoint Judges as per sanctioned strength in Hon’ble High Courts and Subordinate Courts functioning in the country in the interest of justice. We all know fully well how the former CJI TS Thakur had publicly wept over the state of affairs in judiciary especially the huge vacancies in courts all across the country while requesting the Centre to take steps to fill them up! Even the incumbent CJI Ranjan Gogoi had himself immediately on assuming office had suo motu taken cognizance of the huge vacancies in lower courts and High Courts. Not just this, he has also ensured that all the vacancies of Judges in the Supreme Court are filled up fully which has happened after a long time! Similarly in big courts like Allahabad High Court also earlier we used to see how more than half of the Judges post kept lying vacant but now under CJI Ranjan Gogoi things have changed a lot even though still a lot remains to be done and he has directed all the High Courts as also the Public Service Commissions to fill up the vacancies at the earliest and keeps reminding them at regular intervals!

One fondly hopes that the petitioner’s legitimate prayer is accepted by the Apex Court as it is in the public interest and not in interest of the petitioner or any other private individual! The petitioner has very remarkably pointed out that just like seats of MLAs and MPs are filled up at the earliest similarly why the same we don’t see in case of Judges? Not just this, he has also pointed out so many other strong points which I have already illustrated above which are certainly commendable and deserve to be accepted in totality!

No doubt, we have to keep our fingers crossed till the Apex Court finally delivers its judgment on it! But there can be no two opinions that the petitioner has really put across his valid point that “non-appointment of Judges affects speedy justice” with strong and cogent reasons which cannot be disputed! When MPs and MLAs can be appointed in time and not even one seat is left vacant and as soon as it becomes vacant, bye-elections are held at the earliest then why the same yardstick is not applied to appointment of Judges also who play the pivotal role of dispensing justice which directly affects the law and order situation in our country which in turn affects our global standing and international reputation?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

First and foremost, after stating that, “Heard learned Counsel for the applicant and learned A.G.A.” in para 1, it is then clearly pointed out in para 2 that, “By means of instant application filed under Section 438 of Cr.P.C., the applicant has sought anticipatory bail in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC lodged at Police Station, Kotwali Nagar, District Raebareli.”

It would be pertinent to mention here that it is then pointed out in para 3 that, “Before adverting to the factual matrix of this case and to ascertain as to whether the applicant is entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the learned A.G.A. that the applicant without exhausting the remedy under Section 438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, this application is not maintainable and the applicant has to be relegated to the Court of Sessions first and then he can approach this Court. In this background, the legal question that arises for consideration of this Court is that-

‘Whether the application filed under Section 438 of the Cr.P.C. is maintained before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court?’”

What’s more, it is then rightly pointed out in para 6 that, “On plain and meaningful reading of the abovesaid provision, it is crystal clear that it confers concurrent jurisdiction on the High Court as well as the Court of Sessions. The wide discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes to the Court, on anticipatory bail. Both the courts have got jurisdiction to enlarge the applicant on anticipatory bail, considering the relevant guidelines in the said provision.”

To be sure, it is then rightly pointed out in para 16 that, “In a decision reported in 1983 (2) KLJ 8 in the case of K.C. Iyya Vs. State of Karnataka, the High Court of Karnataka has observed as follows:

‘7. Since both the Courts, the Court of Sessions and this Court have concurrent powers in the matter, it appears desirable, for more than one reason, that the Sessions Court should be approached first in the matter’.”

In a similar vein, it is then also rightly stated in para 17 that, “In the case of Shivasubramanyam Vs. State of Karnataka and another; 2002 CRI.L.J 1998, the Karnataka High Court has reiterated the abovesaid principles and ultimately held that the application filed under Section 438 of Cr.P.C. directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right.”

In totality, it is then observed in para 18 that, “By looking into the abovesaid discussions, I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C. as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application.”

It also cannot be lost on us that it is then observed in para 19 that, “In the case of Sri Kwmia Gwra Brahma Vs. State of Assam (Bail No. 3024 of 2014), the Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court.”

Needless to say, para 20 then leaves no stone unturned to make it absolutely clear that, “The intention of bringing out Section 438 of Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.”

Be it noted, it is then illustrated in para 21 why the party should first approach the lower court by stating that, “It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two courts of one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible.”

While continuing in the same vein as to why the parties should first approach the lower court, it is then further noted in para 22 that, “It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. Moreover, considering the work load of the courts in the country, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court under Section 438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs.”

Not stopping here, it is then further observed in para 23 that, “The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition.”

Going forward, it is then stipulated in para 24 that, “It is also worth to note here that the Sessions Court and the High Court arte concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviate the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision.”

To say the least, it is then summed up in para 25 by holding that, “Therefore, looking to the abovesaid rulings of different High Courts, I do not find any strong reason to deviate from the said view taken by the other High Courts. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly.”

While proceeding ahead on a sure wicket, it is then envisaged in para 26 that, “Hence, I answer the point raised as follows:

“The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision”.”

Interestingly enough, it is then observed in para 27 that, “Having held in such manner, now let me see whether the petitioner has approached this Court with any such extraneous or special reason.”

Briefly stated, it is then recapitulated in para 28 that, “Factual matrix of the case is that an FIR was lodged by informant Sri Atul Kumar Singh, Officer In-charge of Police Station Kotwali Nagar, District Rae bareli in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC against the applicant. It is alleged in the FIR that the complainant along with S.I. Pawan Pratap Singh, S.I. Umesh Chandra, S.I. Vivek Tripathi and some police constables were engaged in checking of the vehicles. In the meantime, they received an information through “Mukhbir” that a Bolero vehicle is on the way in which 7-8 persons are seated and they are in possession of Ganja. It is also alleged that the Bolero was stopped and five persons were arrested. The arrested persons were disclosed their identity as Jitreya Tarabdar, Radheshyam Viswas, Jayant Sardar, Brojoshish Viswas and Bobby Halder.”

Moving on, para 29 then discloses that, “It has been averred by the applicant in the bail application that he is a member of Gram Sabha and due to difference in opinion between him and the Gram Pradhan, he has been falsely implicated in the present case by the local police. In the earlier occasion also, the son of the applicant, namely, Vikas Kumar was falsely implicated in a case at the instance of the same Gram Pradhan. It is also disclosed in the application that against the present applicant, a criminal case is pending before the court of Additional District Judge VIth, Raebareli arising out of Case Crime No. 71 of 2018, under Section 8/20 of N.D.P.S. Act but in the entire application, the applicant has not disclosed the urgency for filing the instant application before this Court directly.”

As it turned out, para 30 then sums up saying that, “In view of the above facts and circumstances the learned Counsel for the applicant also failed to explain as to why he has rushed to this Court directly for seeking said discretionary relief under the provisions of Section 438 of Cr.P.C. He has also failed to disclose any extraneous or special reason.” Para 31 then states that, “Lastly, learned Counsel for the applicant has sought permission to withdraw the bail application with liberty to approach the concerned Sessions Court.”

Finally and most crucially, it is then held in para 32 that, “Considering the abovesaid circumstances and the request made by the learned Counsel for the applicant for withdrawing the bail application with liberty to approach the concerned Sessions Court and also in the interest of justice, the instant bail application is dismissed as withdrawn with liberty to the applicant to approach the concerned sessions court and file an application under Section 438 of Cr.P.C.”

In a nutshell, this extremely laudable, latest and landmark judgment which has been delivered recently by the Allahabad High Court has served to send an unmistakable message to all litigants that they should first approach the Sessions Court only and only then should they knock the doors of the High Court. The benefits of doing so has already been pointed out in detail above. It is only under exceptional circumstances that the litigant can approach the High Court directly without approaching the Sessions Court which has to be explained also. Such permission also cannot be granted as a matter of routine unless there are “extraneous or special reasons” to do so! In this present case, the applicant clearly failed to prove any such “extraneous or special reasons” and so had no option but to withdraw the plea and the Allahabad High Court was magnanimous enough to grant the permission to do so accordingly with liberty to approach the Sessions Court! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Before proceeding ahead, it would be instructive to briefly state the background about FATF. The FATF was established in July 1989 by a G-7 summit in Paris to examine and develop measures to combat money laundering. In October 2001, it expanded its mandate to also incorporate efforts to combat terrorist financing as well.

It must be specifically mentioned here that the FATF’s objectives are “to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system”. It would not be out of context to mention here that the FATF monitors the progress of members and non-members in implementing the FATF Recommendations stipulating “a comprehensive and consistent framework of measures which countries should implement in order to combat money laundering and terrorist financing as well as the financing of proliferation of weapons of mass destruction”. Also, it identifies jurisdictions with “weak measures to combat money laundering and terrorist financing (AML/CFT) in two FATF public documents that are issued three times a year”.

Interestingly enough, the FATF’s decision-making body , the FATF Plenary, meets three times in Paris between July and June. The FATF’s 38 members (36 member jurisdictions and two regional organizations, the European Commission and Gulf Cooperation Council), two observer jurisdictions (Indonesia and Saudi Arabia), and multiple observer organizations (mainly international banks and law enforcement bodies) attend the Plenary meet. India is a FATF member but Pakistan is not.

It would be pertinent to mention here that the multilateral international watchdog against money laundering and financing of terrorism – the FATF had placed Pakistan on a list of “jurisdictions with strategic deficiencies”, also known as the “grey list” last June that is in June 2018 for failing to counter fund-raising by terror groups such as Lashkar-e-Taiba (LeT) and Jaish-e-Mohammad (JeM). FATF’s reasoning is Pakistan’s “structural deficiencies” in anti-money laundering (AML) and combating financing of terrorism (CFT). Who does not know Pakistan’s leading role in fomenting terrorism in Jammu and Kashmir and other parts of India?

Interestingly enough, this is not the first time that Pakistan has found itself on one of FATF’s list of not-so-good guys. Pakistan was there earlier also in 2008 and then again from 2012 to 2015 for its direct role in fomenting terrorism and promoting various terror groups. The other countries that are on the FATF list, in alphabetical order, are Ethiopia, Serbia, Sri Lanka, Syria, Trinidad and Tobago, Tunisia and Yemen.

During an assessment in February, FATF said pointblank that, “Pakistan made ‘limited progress’ in curbing terror financing and failed to show proper understanding of risks posed by banned groups such as Islamic State and al Qaeda.” It must be brought out here that following an assessment at its June 19-21 plenary meeting in Orlando, Florida, FATF expressed “concern that not only did Pakistan fail to complete its action plan items with January deadlines, it also failed to complete its action plan items due May 2019”.

Be it noted, the international watchdog FATF said in a statement issued on June 22 that, “The FATF strongly urges Pakistan to swiftly complete its action plan by October 2019 when the last set of action plan items are set to expire. Otherwise, the FATF will decide the next step at that time for insufficient progress.” It is quite ostensible that though the statement didn’t specifically mention the “black list”, which entails harsher financial sanctions, people familiar with developments said the tacit threat was an indication FATF could downgrade Pakistan from the grey list. Pakistan has every reason to feel most worried on this key issue which directly affects its economy and its reputation on the international forum!

Needless to say, after Pakistan was placed in the grey list, it was asked to implement a 27-point action plan and a 15-month deadline to curb terror financing and money laundering in order to avoid being downgraded to a worse “black list” which could lead to strict sanctions which could impact imports, exports, remittances and access to international lending. It could lose potential loans and foreign investment which it badly needs now as its economy is in dire straits, be shunned by the IMF, the World Bank, the ADB and the EU and also suffer a downgrade by credit rating agencies such as Moody’s, S&P and Fitch which will further harm its economy! Pakistan has to now show that it has taken action in concrete terms and lip service just won’t work in its favour! Following inspections by FATF and Asia Pacific Group (APG) earlier this year, experts had clearly concluded that Pakistan had done a lot to align its domestic laws with international counter-terror obligations but had failed to do enough on the ground to curb fund-raising or freeze assets of eight terror groups, including LeT, JeM, Jamaat-ud-Dawah, Falah-e-Insaniyat Foundation, al Qaeda, Islamic State, Haqqani Network and the Taliban.

Furthermore, at the meeting in Florida, the participants agreed to keep the pressure on Pakistan to act tough against terror groups operating from its soil. It was disclosed by diplomatic sources that contrary to media reports, there was no voting at this meeting. The voting will be part of the October plenary when Pakistan’s fate is decided. For the second time, FATF crtiticised Pakistan for its failure to “demonstrate a proper understanding of Pakistan’s transnational TF (terror financing) risk”.

More significantly, it will be at the October plenary in Paris that Pakistan will need 15 countries to support it to stay out of the grey list. Whether Pakistan will remain in the grey list or is placed in the black list will be pretty clear by October 2019. Pakistan can draw some comfort from the fact that China which is its traditional partner and a close ally will take over the presidency of FATF and it will be in a position to help Islamabad to stay out of the grey list or at least block it from being placed in the black list. In front of global pressure we saw how China had to relent and endorse declaring Masood Azhar as a global terrorist! How things pan out ultimately will be clear only in October!

While making its stand clear on Pakistan, India said that it expects Pakistan to take all necessary steps to effectively implement the FATF action plan fully by September and take credible, verifiable and irreversible measures to address global concerns to terrorism and terrorist financing emanating directly or indirectly from its soil. In response to a media query pertaining to the FATF report, Minister of External Affairs Spokesperson Raveesh Kumar said that the FATF has decided to continue to keep Pakistan on its compliance document (i.e. Grey List) for the International Cooperation Review Group (ICRG) monitoring for its failure to complete the action plan items due in January and May 2019. FATF which is a Paris-based global body is arduously and relentlessly working to curb terrorist financing and money laundering and has asked Pakistan to reassess the operation of banned terrorist outfits in the country.

To put things in perspective, the FATF in a statement issued at the conclusion of its plenary meeting in Orlando, Florida said that Pakistan should also demonstrate that “facilities and services owned or controlled by designated persons are deprived of their resources and the usage of the resources” – a reference to UN-designated terrorists such as LeT founder Hafiz Saeed and JeM chief Masood Azhar allegedly having access to the financial assets of their groups. The watchdog also asked Pakistan to take action to “identify and take enforcement action against illegal money or value transfer services” and to improve “inter-agency coordination including between provincial and federal authorities on combating” terror financing. The statement by FATF also said that, “Law enforcement agencies should identify and investigate the “widest range of TF activity” and investigations and prosecutions should “target designated persons and entities”.”

Not stopping here, FATF also further added that, “Pakistan should also demonstrate effective implementation of targeted financial sanctions (supported by a comprehensive legal obligation) against all 1267 and 1373 designated terrorists.” So far, Pakistan has seized 800 properties belonging to JuD, FIF, JeM and arrested some of their leaders. But it needs to do a lot more and act against other terror groups also operating from its soil like Hizbul Mujahideen etc. FATF had also questioned Pakistan on the funding of these terror groups-run schools. It asked that, “Where is the investigation about the source of funds for these bodies?” Pakistan has itself assessed that it takes $14 million (about Rs 180 crore) a year to run all of them.

It would be worthwhile to mention here that Pakistan has narrowly managed to avoid being placed on the FATF blacklist for now following support from all-weather friend ally China, traditional ally Turkey and Malaysia. It would also be useful to mention here that the FATF charter mandates support of at least three member states to avoid the blacklisting. Pakistan may have got a temporary respite but the black clouds looming on the horizon are still intact as a formal decision of the FATF on blacklisting is to be announced in October 2019.

As things stand, in a statement after the end of the plenary, FATF urged Pakistan to complete its action plan by October 2019 when the last set of ‘action plan’ items is set to expire.” If Pakistan still does not comply by October, FATF will decide the next step at that time for insufficient progress which could refer to a possible blacklisting. The Indian delegation headed by Financial Intelligence Unit chief PK Mishra had pressed for Pakistan’s blacklisting and provided fresh evidence on the role of Hafiz Saeed’s Falah-e-Insaniyat Foundation (FIF) and its deputy Shahid Mahmood in the June 16-21 meet in Orlando, US. Citing investigations into FIF, Delhi vehemently argued that Pakistan based terror groups continue to create unrest in other Indian states too besides Jammu and Kashmir.

It must be reiterated here that Pakistan which has been on the global money laundering and terror financing watchdog FATF’s “grey list” since June 2018 after it was placed in the list of terrorist financing and money laundering risks following a thorough assessment by the Asia Pacific group (APG) of the country’s security mechanism and its financial systems has been under scanner since a long time and cannot run away from its dubious role in fomenting terrorism in India, Afghanistan and other countries! It cannot be lost on us that India which is the co-chair of the joint group of FATF and the Asia Pacific group (APG) along with other global powers, has been pushing vocally for blacklisting of Islamabad as the country has clearly failed to meet international standards in combating financial crimes and terror financing. APG which functions under the FATF is the largest of nine FATF-Style Regional Bodies (FSRBs) whose 41 members include both India and Pakistan. 11 of these members are members of FATF as well. India became a member of the APG in March 1998 and Pakistan in May 2010.

To say the least, Pakistan has not been able to implement the action plan which was assigned to it by the APG and FATF, deadline of which ended in January 2019, but was given breather of sorts till May 2019. FATF has also demanded that Pakistan should work on implementing its 10-point action plan to address its strategic deficiencies. Pakistan must act now decisively against terror groups and terror support emanating from its soil if it wants to escape being blacklisted in October 2019! Pakistan is left with no option now but to either fall in line or be ready to face action. FATF has made this crystal clear to Pakistan. Now the choice is of Pakistan as to what does it want to do!

Time is clearly running out for Pakistan. It has been unable to complete 25 action points. It has one last chance, till its 15-month deadline ends in October, when the FATF plenary will be held! It cannot just escape its responsibility by blaming India for everything! The four countries which originally named Pakistan in the grey list last year – US, UK, Germany and France said that they want “sustained and irreversible” action against its terror infrastructure. Pakistan should now shut down its terror factories operating from its soil and should stop day dreaming that just lobbying with China and other countries like Malaysia will save it from being black listed! It should not forget how China ditched Masood Azhar from being labelled a global terrorist after international pressure mounted even though earlier it kept saving him repeatedly! Pakistan should stop blaming India as it has got accustomed to for everything and act decisively against terror groups and terror support emanating from its soil! If it fails to do so, it will face sanctions. Now it is for Pakistan to decide what it wants to do! The ball is now clearly in Pakistan’s court!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.