Over the past few days, a well-known and fairly accomplished Senior IPS Officer, who is currently the Home Secretary to the State Government of Karnataka, has been in the news for her public spat on Twitter with a widely followed and encyclopaedic anonymous commentator on history who prefers to go by the Twitter pseudonym, “True Indology” which is perhaps a nom de guerre. The spat was triggered by the IPS Officer’s tweet in support of the ban on the use of firecrackers on the occasion of Diwali. More than her support for the ban, a position she is perfectly entitled to take, what started the debate was her comment that bursting of firecrackers was not “essential” to the celebration of Diwali and that “non-essential religious practices” were mere dispensable “social practices”. This invited a response from other “tweetizens” including True Indology who dismantled her position brick by brick with reference after reference which clearly demonstrated that bursting of firecrackers had a specific religious significance, and was not merely an act of festivity and celebration. As someone who has presented the scriptural and documented evidence on the subject before the Supreme Court in Arjun Gopal v. Union of India in 2017 and 2018 in the context of the firecracker ban, I am in some position to endorse the views of True Indology.
That said, I am not on the IPS Officer’s uninformed views; after all, the fundamental right to hold a thought and express it is equally available to all hues of views, informed, not-so-informed, somewhat informed and utterly uninformed. However, after having taken a public position from her official handle, instead of engaging on merits with True Indology’s authority-backed counters, let alone disproving him, it appears that the IPS Officer demanded True Indology to divulge his personal details (privacy and due process, what are they?) and when he refused to do so, she is reported to have quipped “Your time is up”.
Within a matter of minutes of that ominous ultimatum, True Indology’s twitter handle is reported to have been suspended, which he confirmed on his Instagram account. Whether this was a coincidence or was there a correlation or a direct causality, I am not in a position to comment on with conviction. I wonder though, what would have happened if the user had not been anonymous and his details were publicly available? Another brave public arrest of a common citizen? Anyways, subsequently, the IPS Officer claimed that she was merely “disseminating” information about an order of the Government, “a decision taken at the highest level”, which was not her “personal opinion”. The irony was that she followed this up with a tweet about how she had a “real job” with “real responsibilities” i.e. after engaging in a public debate for at least two days from her official handle, thereby blurring the lines between dissemination of information and airing of opinions. So much for a real job with real responsibilities. The icing on the cake was the following tweet:
“And as a Govt official, I will first say follow Laws, Rules made by elected legislature, enforced by executive. U r free to question them in judiciary. Not twitter. Have respect for 3 pillars of State as envisaged by Constitution of this democratic country.”
The entire exchange and the above tweet in particular, in my opinion, is reflective of the feudal nature of Indian democracy and the top-down approach to rule of law, constitutional values and constitutional morality. Constitutional morality, as I have written elaborately on before quoting Dr. Ambedkar who in turn quoted Grote, is effectively a commitment to constitutional values, first, by the those in power and those who wield the law. In other words, constitutional morality is a check on untrammelled, unbridled, unrestrained and arrogant use of power by the State, especially its Police powers. Constitutional morality was not meant to be a stick to beat the public with or to indulge in a condescending “civilizing” mission which reeks and smacks of evangelical fervour. This applies to elected representatives and all the more to public servants who are appointees and do not have the direct endorsement of the electorate.
Public servants and elected representatives must remember that a dialogue in public is usually a dialogue with the public. And a dialogue, as embarrassingly obvious as it may be, is not a monologue. In a democracy, it is all the more a two-way street and if public officials wish to grandly hold forth on matters of civilization and religion from their official handles, they must have the maturity and the decency to accept civil reactions and responses from the public to their views. To weaponize their positions and to issue veiled threats merely because their ill-informed and unsolicited opinions have been called out in public is a textbook case of abuse of power. The power vested in them by or under the Constitution is to protect the law and the weak, not their fragile, bloated and weak egos.
Let me go a step further and explain my use of the word “feudal” in the context of our rich and vibrant democracy, encomiums we so love giving ourselves. I don’t believe that any form of political organization is permanent, and this equally applies to democracy. From a civilizational perspective or from the perspective of the vast canvas of human history, 500 years is nothing, I repeat nothing, let alone 70 years. Therefore, I don’t and won’t sit in judgement on any form of political organization which was in vogue before democracy became the mainstream. This is to say that I do not use “feudal” with contempt or disapproval. I am merely using it to highlight the convenient straddling of feudalism and democracy by those who wield power. My clear position is that if you wish to play by the rules of feudalism, the public too must be allowed to, and if you wish to play by the rules of democracy, they equally apply to you. You can’t hold forth on democracy and constitutional values when you pontificate to the public, and embarrassingly betray your feudal mindset when the public exercises its constitutionally guaranteed right of free speech to call out your colonial sanctimony and lack of depth. You can’t have it both ways, after all. You just can’t have the cake and eat it too.
Also, I use the word “colonial” with responsibility and with a sense of history because in most postcolonial societies, especially Bharat, it is an established and demonstrated fact that those who wield power have typically stepped into the shoes of the erstwhile colonizer, which explains their penchant for “civilizing” the native and talking down to her or him. Let me clarify that I don’t wish to paint everyone with the same brush, but I am certainly highlighting a systemic fault which is all-pervasive. We may have embraced the skeletal structure of democracy, but we are still uncomfortable with the republican spirit that comes with it. To a layperson, the attitude of the colonialised native wielder of power isn’t that different from the attitude of the erstwhile colonizer; in fact, it is even worse because the native wielder of power channels his own self-loathing tendencies and projects it on to the “plebs”, “the cattle class” or whatever other pejorative they may think of for the wretched commoner. What irks the public official even more is the empowerment of the common voice by the internet and social media, which has democratized gateways and channels of public communication which were hitherto the exclusive preserve of the select and Chosen few (the Gymkhana variety). And so, the old ways are back (remember Section 66A?). The age-old threats and gags are back and our time’s up. Long Live the Republic! And Long Live Constitutional Morality!
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.
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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION
The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.
The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.
Facts of the Case:
In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.
A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.
An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.
Contentions made by Parties:
On the following grounds, the petitioner sought the transfer of application.
An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.
It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.
On the following grounds, the respondent countered the submissions of the petitioner:
An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.
The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.
The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.
The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.
It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.
The Transfer petition was dismissed by the Court.
DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE
The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.
In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.
It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.
Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.
No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.
ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD
The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.
The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.
In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.
It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.
Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.
Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.
Following this, the Court observed:
The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.
It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.
The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.
The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.
SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED
The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.
The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.
It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.
However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.
It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.
Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.
While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.
IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC
The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.
FACTS OF THE CASE:
The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.
The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.
MUMBAI NCLT PROCEEDINGS
An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.
the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.
An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.
It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.
An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.
The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.
Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.
The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.
ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS
The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.
The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.
An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.
Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.
on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.
The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.
the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.
It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.
The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.
The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.
It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.
Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.
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