Let me start shaking my pen by first and foremost pointing out that the Delhi High Court on March 23, 2018 in WP (C) No. 750/2018, Kailash Gahlot & Ors v Election Commission of India & Ors in which 20 AAP MLAs had filed a writ petition challenging the disqualification  reversed the disqualification of 20 Aam Aadmi Party (AAP) MLAs and restored their membership to the Delhi State Assembly in offices-of-profit case. A Division Bench of the Delhi High Court set aside the January 20, 2018 Presidential order and referred the case back to the Election Commission (EC) for a fresh hearing. This has definitely come as a shot in the arm for AAP at a critical time!

                                          While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Division Bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Chander Shekhar said that the January 19 Election Commission recommendation given to the President “is vitiated and bad in law for failure to comply with principles of natural justice”. The Bench ruled that, “There was a violation of natural justice and no oral hearing was given to the AAP MLAs before disqualifying them as legislators.” Valid point!

                                          It needs no rocket scientist to conclude that Delhi High Court has done no great favour to AAP MLAs. Delhi High Court has set aside their disqualification because the Election Commission did not give them a hearing as is the prescribed norm before recommending their disqualification to the President. It may be noted that the Delhi High Court had reserved its judgment on February 28 after the MLAs and the Election Commission had concluded their arguments!

                                           No wonder that AAP on learning of the judgment became overjoyed. Delhi Chief Minister and AAP convener Arvind Kejriwal described it as a victory of the truth. Kejriwal tweeted that, “The truth has triumphed. The people whom Delhi had voted as their representatives were wrongly disqualified.” The reaction of other AAP leaders was also like that of Kejriwal on expected lines.

                                   While craving for my esteemed readers exclusive indulgence, let me also inform them that  however, Delhi Congress chief Ajay Maken said there was “no need for the 20 AAP MLAs to get elated as the court order has given only partial relief”. He added that the Delhi High Court had not “disputed the merit” of the case that “lakhs and crores of rupees had been spent by the AAP government on these MLAs in perks, as that of a Minister.” He also was quick to point out that, “The High Court has only remanded the case to the Election Commission for a final hearing and not set aside the President’s order as such.”

                                           To be sure, the Delhi High Court on March 23 asked why the Election Commission had not informed the AAP MLAs, facing disqualification proceedings, about the decision of one of the then commissioners, OP Rawat to rejoin the Presidential reference proceedings after his recusal earlier last year in 2017. The Delhi High Court minced no words in questioning the flip-flop of OP Rawat who is now the Chief Election Commissioner. A Bench of Justices Sanjiv Khanna and Chander Shekhar remarked that the AAP MLAs should have been informed and told that Mr Rawat had agreed to rejoin and participate.

                                            Bluntly put, the Bench said explicitly that, “We would unhesitatingly and without any reservation hold that the rejoining or withdrawal of recusal by Mr OP Rawat should have been communicated and informed to the petitioners.” But that was not done. The Bench further said that, “This would have materially affected the response and reply of the petitioners…There is also difference between recusal and re-joining on withdrawal of the recusal. These were two separate stages and have different connotations and consequences.”                   

                                    It may be recalled that on April 19 in 2017, OP Rawat had recused himself from the reference proceedings after Delhi Chief Minister and party leader Arvind Kejriwal had questioned his independence. He later re-joined the reference proceedings on September 22, 2017. Rawat had become the Chief Election Commissioner in January this year. The Bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Chander Shekhar had minced absolutely no words in stating most unambiguously that, “No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind and impartially.”     

                           It also cannot be lost sight of that another vitiating factor which vitiated the whole decision making process by the Election Commission of AAP MLAs was that Election Commissioner Sunil Arora who had not heard the matter and who assumed the office as late as September 2017 also signed the order. It is also a well settled principle of law that someone who does not hear the matter does not decide on it. But in this case it was violated by the Election Commissioner Sunil Arora as was also pointed out in the editorial of ‘The Hindu’ newspaper dated March 27, 2018 titled ‘Principle & procedure’.  

                               It may be recalled here that the 20 AAP MLAs had been appointed parliamentary secretaries to ministers in the Delhi government in March 2015 after the AAP’s stunning victory in the assembly elections. In September 2016, the Delhi High Court had itself ruled against this appointment and on January 20, President Ram Nath Kovind, on the Election Commission’s recommendation had disqualified all 20 for holding an office-of-profit. The Delhi High Court on January 24 had refused to stay the notification disqualifying the legislators but had restrained the Election Commission from taking “precipitate measures” such as announcing poll dates.

                           As things stand, in its order, the Delhi High Court said principles of natural justice had been violated since the legislators were not given opportunity to be heard. It said that, “Opinion of the ECI dated January 19 is vitiated and bad in law for failure to comply with principles of natural justice”. The Delhi High Court issued orders “quashing” of the opinion and the consequent order/notification dated January 20, 2018, for violation of principles of natural justice.

                                    Needless to say, the Bench said that, “These violations were the Election Commission’s failure to give oral hearing and opportunity to address arguments on merits of the issue whether the petitioners had incurred disqualification, failure to inform that Mr OP Rawat had expressed his intention to rejoin proceedings after his recusal and finally that Mr Sunil Arora had not participated and no hearing were held before him.” The then CEC OP Rawat had recused himself from cases related to the AAP after Kejriwal had questioned his independence on April 20, 2017, when Rawat was an Election Commissioner. Rawat agreed later to rejoin the proceedings on September 22, 2017 without informing the AAP. Arora had signed the January 19 recommendation to disqualify the MLAs.  

                                      It must be brought out here that while the Delhi High Court set aside the disqualification of 20 AAP MLAs on the ground that the Election Commission’s (EC) opinion was “bad in law” and against the principles of natural justice, former poll panel chief and former CEC AK Joti said that, “The legislators were given enough adequate opportunity to present their side of the case.” Joti was the Chief Election Commissioner when the Election Commission tendered its adverse opinion in the office-of-profit case to President Ram Nath Kovind. The opinion was given just two days before his retirement.

                                   It must also be brought out here that Joti also revealed while speaking with journalists that, “They were given sufficient opportunity to give their representation (in writing). But they did not give any representation. The first notice went in September and then another in November. So it’s not like an opportunity was not given. I don’t want to comment on the High Court’s order.”  

                                 Truth be told, the Delhi High Court Bench directed the Election Commission to hear the arguments again. It said that, “Order of remand is passed to the ECI to hear arguments and thereafter decide the all important and seminal issue: what is meant by the expression ‘office of profit held under the Government’.” The High Court also asked the Election Commission to “re-examine the factual matrix to decide whether the petitioners had incurred disqualification on appointment as parliamentary secretaries, without being influenced by the earlier order or observations on the said aspect in this order.”

                                 It is noteworthy that lawyer and petitioner Prashant Patel was the first to complain to then President Pranab Mukherjee in June 2015 that the MLAs holding the offices of Parliamentary Secretaries were in violation of the Constitution. He had sought their disqualification under Section 15 of the Government of National Capital Territory of Delhi Act, 1991. While the initial complaint was against 21 MLAs but Rajouri Garden MLA Jarnail Singh had resigned from his post to contest election against former Punjab CM Parkash Singh Badal in 2017 state election of Punjab.

                                     In response, the Delhi Legislative Assembly had then passed the Delhi Memebr of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015, excluding Parliamentary Secretaries from ‘office of profit’. But the President had refused to give assent to this Bill. It is of utmost significance that none other than Delhi High Court itself had struck down the posts of Parliamentary Secretaries.

                                   Again, in response, the MLAs had then approached the ECI, contending that it shouldn’t entertain the petition against them, claiming that the High Court had already set aside their appointment as Parliamentary Secretaries. But the ECI had rejected their contention in June 2017 and recommended their disqualification. The MLAs then scrambled to Delhi High Court again for interim protection. But the court refused to grant them relief and expressed displeasure over their conduct for two years during the pendency of the proceedings before the Election Commission of India. Justice Rekha Palli had rapped the MLAs for using their petitions before the High Court as a shield to avoid participating in the Election Commission of India proceedings. But during the pendency of the petition, President Ram Nath Kovind had approved their disqualification.                                    

                                          The Delhi High Court noted that, “We have upheld validity of reference made by the President. The President need not make a fresh reference.” Now whether Prashant decides to appeal against the Delhi High Court order to the Supreme Court or not remains in the realm of speculation. Only time will decide that what future course of action he takes. No doubt, he has devoted his full three years to this case which he himself candidly acknowledges also as he feels that his fight is not personal against anyone but is a fight for principles which was grossly violated in the case of these 20 AAP MLAs appointed as Parliamentary Secretaries! This despite the glaring fact that a Constitutional clause prohibits legislators or parliamentarians from holding any position with monetary or other benefits which comes under the definition of office of profit. This clause is aimed at reducing conflict of interest situations for public representatives.

                                     One thing is quite clear: The AAP MLAs have only got temporary reprieve by Delhi High Court and not a very big reprieve! Delhi High Court held categorically that, “Opinion of the ECI dated 19th January, 2018 is vitiated and bad in law for failure to comply with the principles of natural justice. Accordingly, Writ of Certiorari is issued quashing the said opinion dated 19th January, 2018 and the consequent order/notification dated 20th January, 2018 for violation of principles of natural justice, namely, failure to give oral hearing and opportunity to address arguments on merits of the issue whether the petitioners had incurred disqualification and also on account of failure to inform that Mr O.P. Rawat had expressed his intention to rejoin proceedings after his recusal and lastly because Mr Sunil Arora had not participated and no hearings were held before him.”

                                 In its concluding remarks, the Delhi High Court Bench also held categorically that, “Order of remand is passed to the ECI to hear arguments and thereafter decide the all important and seminal issue: what is meant by the expression “office of profit held under the government” and re-examine the factual matrix to decide whether the petitioners had incurred disqualification on appointment as Parliamentary Secretaries, without being influenced by the earlier order or observations on the said aspect in this order. The writ petitions are accordingly partly allowed in the aforesaid terms, without any order as to costs.” It goes without saying that the Election Commission of India will now abide by what the Delhi High Court has said and decide only after giving the AAP MLAs an opportunity to present their side of version also before announcing its own judgment on this all important issue!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

First and foremost, let me express my profound condolences to all those in Kasganj area in Aligarh district whose relative has either been killed or their relatives injured or their shops burnt or their vehicles burnt or their house ransacked etc and that too on the occasion of Republic Day! This is not happening in West UP for the first time nor will happen for the last time. People here are used to facing all this!

Let me be direct in saying: West UP is notorious for riots breaking out at the drop of a hat like we saw during Muzaffarnagar riots, Meerut riots, Agra riots, Saharanpur riots, Bareilly riots etc! Every district of West UP comprising of about 26 districts is volatile still no high court bench here. The litigants are compelled to travel and so are the victims required to travel about 700 to 800 km whole night some times without reservation to Allahabad as there is no high court bench in West UP and have to face all sorts of inconveniences in doing so! 

It is most distressing to learn that this NDA government in Centre led by PM Narendra Modi has decided to create one more high court bench in Kolhapur in Maharashtra to be a circuit bench which later is usually made permanent as we saw in Karnataka where 2 circuit benches were created for 4 and 8 districts at Dharwad and Gulbarga in Karnataka even though there was already a bench in Hubli! Similarly Maharashtra already had benches at Nagpur, Aurangabad and in Goa but for West UP with more than 9 crore population there is not even a single bench and for whole of UP there is just one bench just 150 km away from Allahabad at Lucknow leaving the rest of UP high and dry!

It is most shocking to learn that for just 6 districts of Kolhapur, Solapur, Ratnagiri, Satara, Sangli and Sindhudurg in Maharashtra, the Centre has approved a high court bench at Kolhapur which shall start functioning soon but for 26 districts of West UP, the Centre is not prepared to create even a single bench of high court in any of these districts! It is even more shocking to learn that as if this is not enough even Pune will soon get a high court bench. Maharashtra’s Food and Civil Supplies minister Girish Bapat had also said that the city of Pune will also get a circuit bench! Thus when a high court bench will be created at Pune, Maharashtra will have five high court benches and UP would have just one and West UP none! It was in the October 25, 2015 issue of ‘The Indian Express’ newspaper that it was published as headlines that, “Bombay High Court urged to set up bench in Pune, Kolhapur: CM Devendra Fadnavis”. The Chief Minister of Maharashtra Devendra Fadnavis had conceded while addressing a conference of the Bar Councils of Maharashtra and Goa that, “The demand of lawyers seeking a bench in Pune and Kolhapur is justified. The Cabinet has decided to approve this demand and has sent a request to the Bombay High Court to set up these benches.” 

The population of Maharashtra is just half of UP still Maharashtra has now 4 benches and one more will be added soon taking the tally to 5 and UP has just one bench at Lucknow and worse still West UP which owes for more than half of UP’s total pending cases, has not even a single bench of high court! Maharashtra has less than 2 lakh pending cases and UP has more than 10 lakh pending cases still UP has just one bench and West IUP which accounts for more than half of the pending cases has no bench! Is this fair? This is atrocious! BJP got so many seats from West UP in Lok Sabha elections and yet see what reward it has got? No bench till now!

To put things in perspective, the elected representatives of West UP like Rajinder Aggarwal who is MP from Meerut demands 3 high court benches at Meerut, Agra and Gorakhpur in Parliament, Satyapal Singh who is MP from Baghpat and also Union Minister demanded 5 high court benches and so also Gen VK Singh who is also Union Minister and MP from Ghaziabad and but their own government is not prepared to set up even a single bench of high court in any hook and corner of not just West UP but entire UP for reasons known best to them! The more than 9 crore people of West UP always live in an atmosphere of getting killed or looted or raped or gangraped or being subjected to any other kind of crime as criminals here fear just no one. Still no bench!

Just recently, a 100 year old woman was raped in Meerut and she died within no time! A young girl of 7 to 8 years was gang raped in Muzaffarnagar and then killed and this keeps happening every now and then but inspite of being so close to Delhi, it never attracts the kind of attention that Nirbhaya gang rape case attracted! In Hapur a young girl of about 8 years was similarly raped and people protested strongly because no one was arrested! 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 and that too when her whole family accompanied her is nothing new!

Chief Justice of UP – Dilip Babasaheb Bhosale 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 now 4 high court benches, shall soon have 5 and UP only one as Justice Jaswant Commission were implemented in Maharashtra to set up a bench at Aurangabad but not in Agra 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!

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! Who is suffering most by this inaction? Girls, women and the common people who don’t have police protection with them unlike Ministers who are fully guarded always! 

Truth be told, the latest violence in Kasjang near to Aligarh and the killing of a person and the subsequent huge burning of buses, trucks, buildings etc and fight breaking out on streets clearly indicates that how things are deteriorating from worse to worst in West UP and is the worst reminder that if most strong steps are not taken well in time, things will spiral completely out of control! In 2013 after the Muzaffarnagar riots in which again huge violence broke out and many were injured and killed and many displaced! Still we see no bench here! 

Ban ki Moon who was earlier UN Secretary General had slammed UP and not Karnataka or Maharashtra or Assam as “rape and crime capital of India” still we see that UP has just one high court bench and that too just 150 km away from Allahabad at Lucknow and these 3 states have 3 to 4 benches each! Isn’t it shameful? Why different parameters for different capital cities? Why no high court or bench for Bhopal, Bhubaneshwar, Dehradun, Thiruvananthapuram and others? Why have they been singled out?

It is most disgraceful that more than half of pending cases are from West UP and still not a single bench of high court exists here. This despite the fact that Justice Jaswant Singh Commission had recommended 3 benches for West UP and hilly areas which now constitute a separate state named Uttarakhand but Centre for undisclosed reasons decided not to allow even a single bench anywhere in UP even though on its recommendations benches were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal! This is plain ridiculous!

It is so shocking that Jawaharlal Nehru had the guts to set up a single high court bench for UP so close to Allahabad at Lucknow way back on July 1, 1948 but 70 years down the lane, no PM has shown the guts to create even a single high court bench anywhere else in West UP or in Bundelkhand or in Gorakhpur from where present CM Yogi Adityanath himself hails and who has been getting elected as MP since 1998 and had even raised the demand for a high court bench there inside Parliament but now even after coming close to completing one year in office, it seems he has chosen to just forget everything! Satyapal Singh who is former Mumbai Police Commissioner and represents BJP as MP from Baghpat and recently was sworn in as Union Minister had demanded right inside Parliament the setting up of 5 high court benches for UP at Meerut, Agra, Gorakhpur, Jhansi and Varanasi but what a pity that Centre is not ready to set up even a single bench anywhere in UP even as PM Narendra Modi is all set to complete 4 years in power after few months! This is the real tragedy!

Just recently a woman committed suicide in one of the district of West UP as she was being threatened by those who committed gang rape. Woman are being murdered, raped and gangraped! This has been happening time and again. West UP has become the epicenter of all crime, rape, dacoities, gangrapes, murders and still Centre is not prepared to set up even a single Bench of High Court for any of the 26 districts of West UP!

Why high court and benches of 8 states and even Lahore high court in Pakistan is nearer to West UP as compared to Allahabad still no bench is being created here? Why West UP inspite of emerging as epicenter of murders, rapes, gangrapes and communal clashes still has no high court bench which only punishes victims especially woman who has been raped or gangraped to travel all the way about 700-800 km away to Allahabad to get delayed justice after few decades as Allahabad High Court is already overburdened with more than 10 lakh cases whereas no other state in India has more than 2 lakh pending cases and still some of them have 3 high court benches but UP has just one at Lucknow which is very close to Allahabad? How can all this be justified?

Why no steps are being taken to create a bench here even though it has been promised by many governments in Centre and by many Union Ministers? What stops Centre? Why Centre is ignoring that Soli J Sorabjee who is former Attorney General of India and one of the most reputed lawyer of Supreme Court had himself said that, “A high court bench in West UP can be created by Centre without the recommendation of the Chief Justice or State Government in this behalf”.

BN Krishnamani who is former Chairman of Supreme Court Bar Association had himself said that, “Only by the creation of a high court bench in West UP can the people get justice here”! He was amazed that Lucknow has high court bench since 1948 but West UP not even seventy years later!

Why the population of West UP at more than 9 crore is more than all States except UP of which it is itself a part, Maharashtra and Bihar and here too the area of West UP at 98,000 square km is more than Bihar at 94,000 square km and still it has not been made a separate state? Why West UP accounts for more than half of pending cases of UP and still no attempt is being made to create it as a separate state or at least create a bench here? Why Karnataka with just 6 crore population which is 3 crore less than West UP has not just high court but 3 benches also but West UP with more than 9 crore population has not even a single bench leave alone a high court by making it a separate state?

Why Karnataka has not more than 2 lakh pending cases and West UP has more than 5 lakh pending cases still West UP has not even a single bench compelling litigants from West UP to travel whole night more than 700 km away often without reservation all the way to Allahabad and suffer untold miseries and Karnataka has a high court and 3 benches at Hubli, Dharwad and Gulbarga? Why the 230th report of Law Commission was selectively implemented only in a peaceful state like Karnataka and not in a state like UP which former UN Secretary General Ban ki moon slammed as the “rape and crime capital of India” and which has maximum population more than Pakistan and many other countries, maximum MPs, maximum MLAs, maximum Mayors, maximum villages more than 1 lakh, maximum towns, maximum tehsils, maximum pending cases more than 10 lakh, maximum pending cases in lower courts, maximum Judges, maximum crime, maximum dowry deaths, maximum rapes, maximum gangrapes, maximum custodial deaths, maximum PM since independence including the incumbent PM Narendra Modi who represents Varanasi, maximum delay in deciding of cases and what not and yet still has least high court benches in India? Why is West UP being accorded such a shabby and third rated treatment that the high courts and benches of 8 states and above all even Lahore High Court in Pakistan is nearer to West UP than Allahabad still it has not even a single high court bench here?

The latest shocking Kasganj violence which witnessed naked dance of destruction, death, vandalism, loot and violence underscores the “complete jungleraj” prevailing in West UP yet no serious attempt is being made to create a high court bench here! Is there any logic in it? Why when Centre can create one more bench for Maharashtra which already has 3 benches then why can’t it create one bench at least in West UP?

The lawyers of West UP stopped working on February 15 after learning about it that a circuit bench of high court has been approved at Kolhapur in Maharashtra and resumed working from February 27 only after Gen VK Singh who is a Union Minister assured the lawyers that he would get a meeting of lawyers and PM to convince Modi of the dire need to set up a bench here! For how long will lawyers of West UP keep striking? Already the lawyers of West UP have been struggling since last more than 50 years for a bench and have gone on strike for 6 months also as in 2001, 3 to 4 months as in 2014-15 apart from the everySaturday since May 1981! Centre must relent at least now and create a bench here as it has done in Maharashtra so that the litigants are not compelled to travel whole night about 700 km on an average many times without reservation also all the way to attend court hearings at Allahabad! No more excuses! When Maharashtra can have 4 to 5 benches then why can’t UP have at least 3 to 4 or at least 2 benches? Why West UP has no high court bench even in 2018 when Lucknow can have bench since 1948 even though it was so close to Allaahabad? Centre must act impartially now! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It is most shocking to see that inspite of so many scams being unearthed one after the other and all parties repeatedly asserting their firm determination to fight against it with full courage yet no effort has been made of any kind since the last more than 70 years to insert mandatory death or life term for corruption which has been ruining our nation beyond repair! The latest PNB scam involving diamond merchant Nirav Modi in which more than Rs 11,400 crore have been siphoned off only demonstrates that to what extent corruption has permeated deep inside our society. It took place with the full complicity of several top bank officials.

                                   Earlier also we saw how Vijay Mallya made a complete mockery of our legal system and after siphoning off more than Rs 9000 crore escaped easily to England and has been enjoying life there since then! Now Centre has employed best lawyers after paying them heavily to fight the case in a protracted legal battle to bring him back! Why was he allowed to escape so easily?

                                 Why was he not arrested immediately after his involvement was noticed in siphoning off the Rs 9000 crore of money? Why are looters and corrupt allowed to so easily escape from India along with their entire family to stay in luxurious five star hotels abroad? Why no effort is made to stop them from fleeing India? Does this not indicate complicity of the worst order in which politicians play the key role especially those holding key positions in the Centre?  

                                            Why no change has been effected in our corruption laws which actually encourage corruption by displaying extraordinary softness in dealing with them? Why all parties are firmly united that as long as democracy exists in India there will be no changes made in our corruption laws? Should we be proud of it?

                                         It is most shocking and most hurting to see that this so-called Prevention of Corruption Act, 1988 displays so much of extraordinary, senseless and unwarranted leniency in sentencing towards those corrupt who siphon off crores and crores of rupees and yet are not punished with mandatory death sentence. As if this is not enough, those corrupt are not even punished with mandatory life term! As if still this is not enough, those corrupt are not even punishable with mandatory thirty or forty years!

                                       Even now this is not enough! Those corrupt are not even punishable with mandatory twenty or twenty five years! Even now this is not enough! Those corrupt are not even punishable with mandatory fourteen years! 

                                         The leniency saga still does not end! Those corrupt who commit for the first time any corrupt act are not punishable even with mandatory ten years! They can be punishable maximum up to seven years as specified in Section 12 which covers Section 7 and Section 11! Here also the Judge has the discretion bomb to use anytime where he can prefer to give him not seven years in jail but to a term of not less than three years as is the statutory requirement as provided in Section 7! Section 11 is even more lenient and under it the maximum punishment that can be awarded to a public servant for obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant is just five years and as if this is not enough the minimum can be reduced up to six months again by the Judge using the “discretion bomb”!

                                       It is only when a person habitually commits an offence under Sections 8, 9 and 12 that a person can be convicted up to 10 years in jail along with fine but here again the Judge by using the same “discretion bomb” can again reduce the jail term to not less than five years! As if this is not enough, Section 13 which punishes a public servant for indulging in criminal misconduct again makes sure that “discretion bomb” is available with Judge and punishment  maximum can be awarded only up to ten years but minimum can be reduced up to four years! What is this?

                                 Should it be called “The Prevention of Corruption Act” or should it be called “The Abetment of Corruption Act”?  I really fail to understand that why so much of leniency in sentencing corrupt is displayed in this so called “The Prevention of Corruption Act”! It makes a complete mockery of our country! Time and again we see how valuable lives are lost by either building collapsing or fire in a building and no safety norms being followed but just because the palms of few corrupt public officials are greased properly, no action is taken on the ground against those who violate laws with impunity! Even if they get caught, still they escape with just few years punishment after being directly responsible for the killing of many innocent people! How can this be termed as fair? How can  this be allowed to continue?   

                                     Why under Section 19 of this Act has previous sanction been made mandatory for prosecution? Why should the accused be given the benefit to be out in the open for a long period till the time sanction is given? Will the accused not use the extended time to manipulate evidence in his own favour and destroy evidence that incriminates him strongly in any scam? Why should those public servant accused of corruption not be immediately taken to task?

                                    How can corruption be ever prevented by treating corrupt so leniently?  We all saw how Lalu Yadav was jailed for just 3.5 years for his role in the fodder scam! He has the option now to appeal in the High Court and then in the Supreme Court. It take many years for the court to be decided at the lower level. This scam happened about 20 years back and decision is coming now! Now it will be fought in higher courts! Then many years get consumed in the higher courts! Finally by the time the case is decided completely in Supreme Court by that time the accused will either die a natural death or by that time would have spent his prime years enjoying life!

                                           All this has to end if India is really serious to control corruption. Only death or life or minimum 20 years in prison must be awarded to all those who indulge in corrupt practice of any kind! What the law currently prescribes is just nothing! It must be enhanced drastically if India really wants to march ahead!

                                      There is no other Act in our country of which I am so ashamed! It is this “The Prevention of Corruption Act, 1988” which really makes me hang my head in shame! What was the intention of the lawmakers when they enacted this Act? Didn’t they realize that it will simply fail to deter potential offenders from indulging in it because of so much of leniency? Didn’t they realize that it will further encourage potential offenders to make tones and tones of money and even if they are caught they will come out in jail in just few years and would be required to pay a sum of just few lakhs as we see repeatedly in various judgments as we saw in Lalu’s case also!

                                        It is precisely because of this that corruption is increasing manifold in our country since last few decades and we are steadily rising high in the corruption index! Even smaller and lesser developed countries rank better than us! What is most worst is that no party ever demands the radical changes that are so badly needed in this so called “The Prevention of Corruption Act, 1988”! Can on earth there be anything more shameful than this?    

                                   I feel very happy when I time and again hear our PM Narendra Modi reiterating his government’s firm resolve in fighting corruption! But when will this translate into action? When will Centre step on the gas to initiate tremendous changes in this ‘The Prevention of Corruption Act, 1988’ by which any public servant indulging in corruption would have to either face gallows or at least life imprisonment or at least 20 years in prison?

                                        It is all up to the Centre to take the bull by the horns and initiate radical changes so that corruption can be brought under firm check in our country! Let us hope that Centre acts soon in this regard! The earlier this is done, the better it shall be in controlling corruption and in the so called “war against corruption” proclaimed by PM Modi before riding to power in 2014 in Centre!

                                       But if Centre itself wants the status quo to continue then we shall certainly see no changes forthcoming in this badly drafted “The Prevention of Corruption Act”! For repeated offenders the punishment must be either death or life term! The ball is in Centre’s court!

                                         Centre must now display political will to make radical changes in this Act which is continuing in more or less the same form in which it was enacted 30 years back! Centre must stop coughing lame excuses to not do anything in this regard! Why has Centre led by PM Narendra Modi not acted decisively on this front even after being in power for nearly 4 years? Does it not want that corruption which is hindering our country from progressing ahead in many ways be swiftly checkmated by taking the most strictest action against those who indulge in corruption?

                                         It must act strongly if it really wants to stand vindicated in the eyes of the public of being really serious enough to wage war against corruption and of making sure that corrupt are not able to make a mockery of our law by coming out of the jail in just a few years time at the most! Corruption is worse than terrorism because without firing a single round of bullet and without getting training from any hostile country like Pakistan, the corrupt is able to kill many innocents by caring a damn for the quality of material used in constructing roads, highways, food etc and mint thousands of crores of rupees and still escape with just a few years in jail and a few lakh as fine as compared to a terrorist who is shot dead by our security forces sooner or later! Thanks to this ‘The Prevention of Corruption Act, 1988’!

                                     Still even after 30 years of being enacted we see no major changes being made in it except some cosmetic changes! What does this imply? That all parties want status quo to continue!

                                    All said and done, no political party wants that corruption should be ever checked to any extent in our country no matter how much public posturing they may do on this! This alone explains that why we see no changes being made in our corruption laws which displays unwarranted leniency which only encourages corrupt to further commit corruption because even the repeater offender is punishable under the Prevention of Corruption Act, 1988 with just 10 years in prison ! Most ridiculous and depressing! Not surprising that we figure among the most corrupt countries in the world! Yet no attempt is made of any kind to address it once and for all by making the necessary changes in our corruption laws and making it mandatory to punish those indulging in corruption with either death or life term!  How shameful!
Sanjeev Sirohi, Advocate

Coming straight to the nub of the matter, let me start at the very beginning by first and foremost pointing out that the Supreme Court on February 16, 2018 delivered a much-awaited 465-page landmark judgment in Civil Appeal No 2453 of 2007 The State of Karnataka by its Chief Secretary versus State of Tamil Nadu by its Chief Secretary and Ors with Civil Appeal No. 2454 of 2007 State of Kerala through the Chief Secretary to Government versus State of Tamil Nadu through the Chief Secretary to Government and others Civil Appeal No 2456 of 2007 State of Tamil Nadu through the Secretary Public Works Department versus State of Karnataka by its Chief Secretary Government of India & Ors. It marginally increased the share of Karnataka of Cauvery water. It also ordered a reduction of the allocation share for Tamil Nadu thus dashing their hopes of getting more water from Cauvery. There can be no denying that Karnataka has every reason to feel happy about it. 

While craving for the exclusive indulgence of my esteemed readers, let me inform them that a three-Judge Bench led by Chief Justice of India Dipak Misra said Karnataka will be required to release 177.25 tmcft (thousand million cubic feet) of water from its Billigundlu site to Mettur Dam in Tamil Nadu. This is a huge development with far reaching consequences! All parties must sincerely abide by what the top court has directed so unambiguously.

It is noteworthy that the earlier requirement under a February 2007 award by the Cauvery Water Disputes Tribunal (CWDT), was 192tmcft. But now that has been changed. The Apex Court also allocated an additional 4.75 tmcft to Bengaluru to meet the drinking water and domestic requirements of the “global city”. As a consequence, Karnataka will now get 284.75tmcft as against the 270tmcft it gets at present.

Be it noted, the allocation to Tamil Nadu stands at 414.25 tmcft annually, which includes 10tmcft on account of availability of groundwater. The state of Kerala and Puducherry would continue to receive 30tmcft and 7tmcft respectively. The Apex Court also directed the central government to constitute the Cauvery Water Management Boardwithin six weeks to supervise implementation of the order.

For my esteemed readers exclusive indulgence, let me also inform them that the Supreme Court by this landmark judgment sent out a loud and unmistakable message that, “Waters of an inter-state river passing through corridors of the riparian states constitute a national asset and no single state can claim exclusive ownership of its water”. Very rightly said! Who can question this?

Simply put, a three-Judge Bench of the Apex Court headed by CJI Dipak Misra said that, “The matter deserved to be adjudicated on a bedrock of equal status of states and doctrine of equability.” The Cauvery water dispute is more than 150 years old and has its origins in the 1894 and 1924 agreements for water sharing between then Presidency states of Madras and Mysore. The order stated that these agreements will remain in force despite the fact that the Reorganization Act, 1956 has taken effect. 

To put things in perspective, the top court largely upheld the 2007 tribunal decision and said the water allocation arrangement will exist for 15 years. It added that the tribunal’s order is binding. The allocation of water for Kerala and Puducherry remained unchanged.

Needless to say, this dispute over sharing of Cauvery water has been festering for an inexorably long period since the last 150 years. The 802-km long Cauvery river is also called the “Ganga of the South”. It originates in Kodagu district in Southern Karnataka and flows into Tamil Nadu, Kerala and Puducherry. It flows mainly through Karnataka and Tamil Nadu with its basin covering parts of Kerala and Puducherry. Of its total catchment area of 81,155 square kilometers, 34,273 sq. km is in Karnataka, 44,016 square km in Tamil Nadu and Puducherry and 2,866 square km in Kerala.

Before proceeding ahead, it would be instructive to go though the history of this complex water dispute between Karnataka and Tamil Nadu. Only then will we be able to have a better understanding of this entire Cauvery water dispute. It runs as follows: –

1894: Water sharing agreement between the then Presidency states of Madras and Mysore.

1924: The British managed to finalise an agreement which was to function effectively for 50 years. Tamil Nadu and Puducherry would get 75% of the surplus water while Karnataka would get 23%. The remaining would go to Kerala. There were also restrictions imposed on how much land could be irrigated.

1970: The Cauvery Fact Finding Committee found that Tamil Nadu’s irrigated lands had grown from 1,440,000 acres to 2,580,000 acres while Karnataka’s irrigated area stood at 680,000 acres, resulting in an increased need of water for Tamil Nadu. Karnataka opposed this proposal.

2007: The Cauvery Water Disputes Tribunal holds that the two British era agreements valid but all states filed clarificatory petitions in the Supreme Court.

2013: Tamil Nadu files contempt petition in the Supreme Court against Karnataka. Chief Minister of Karnataka Siddaramaiah refuses to implement the decision to release additional water.

Sept 2016: Supreme Court directs Karnataka to release 15,000 cusecs a day till Sept 15. Protests break out in Karnataka which releases water and files a plea to the Supreme Court order.

July 14, 2017: Karnataka seeks a reduction in the quantum of water it should release to Tamil Nadu.

Sept 20, 2017: The Supreme Court reserved its judgment.

Feb 16, 2018: The Supreme Court reduces Tamil Nadu’s share of Cauvery river water to 177.25 thousand million cubic feet (tmcft), down from 192tmcft allocated by a tribunal in 2007.

To be sure, the 3-Judge Bench of the Supreme Court comprising of CJI Dipak Misra, Justices Amitava Roy and AM Khanwilkar held categorically that, “In totality, we deem it appropriate to award the state of Karnataka an additional 14.75 TMC of water, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru).” This is certainly a shot in the arm for Karnataka! Of course, Tamil Nadu is not very happy with this judgment.

Let me now jog my esteemed readers memory a little back. It was in February 2017 that the CWDT had determined the total availability of water in the Cauvery basin at 740tmcft. In a unanimous award, the tribunal allocated 419tmcft of water for Tamil Nadu, 270tmcft for Karnataka, 30tmcft for Kerala and seventmcft for Puducherry. It reserved 10tmcft for environment protection and fourtmcft for natural outlets into sea.

Truth be told, all the states had challenged the tribunal award before the Supreme Court which had reserved its judgment four months ago. After February 16 verdict, Karnataka has gained an upper hand as its share goes up to 284.75tmcft and Tamil Nadu’s share will now be down at 404.25tmcft. Karnataka Chief Minister Siddaramaiah while apparently appearing delighted said that he was happy as the state got “some relief” while Tamil Nadu Chief Minister E Palaniswami appearing quite dejected from this Supreme Court’s judgment lamented that it was unfair to take into account the state’s groundwater levels.

As it turned out, in its landmark verdict, the Supreme Court placed drinking water requirements on a higher pedestal. It set aside the tribunal’s decision to “drastically reduce” Karnataka’s share of water, based on the argument that only a third of Bengaluru fell in the river basin and 50% of drinking water requirement would be met by groundwater. The Apex Court very rightly allocated 4.75tmcft for Bengaluru’s drinking water requirements, keeping in mind the “global status” of the city. Who can deny or dispute this?

It also cannot be lost on us that the tribunal had not taken into account the availability of 20 tmcft of underground water in Tamil Nadu and had rejected it as a conjecture. But the Supreme Court took into account the use of 10tmcft of this groundwater and deducted it from Tamil Nadu’s share of Cauvery water. Very rightly so! In conclusion, all the parties to the dispute must completely adhere to what the Supreme Court which is the highest court of the land has laid down in this landmark judgment! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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