All Hindus living in Kashmir valley cannot claim benefits meant for Kashmiri pandits: J&K & Ladakh HC - The Daily Guardian
Connect with us

Policy & Politics

All Hindus living in Kashmir valley cannot claim benefits meant for Kashmiri pandits: J&K & Ladakh HC

Published

on

In a very significant development, the Jammu and Kashmir and Ladakh High Court has as recently as on September 14, 2021 in Rajeshwar Singh & Ors Vs Union of India & Ors in WP(C) No.245/2021 CM No.883/2021 has held that all Hindus residing in the Valley cannot be said to be a Kashmiri Pandit, thereby allowing them to await the benefits of the schemes meant exclusively for the Pandits. This is definitely a big setback for those Hindus who cannot be said to be a Kashmiri Pandit as has been laid down by the Court in this case. We shall dwell on it later.

To start with, the ball is set rolling in para 2 of this learned judgment wherein it is put forth that, “The case projected by the petitioners is that in the year 2009, Government of India issued Prime Minister’s Package for return and rehabilitation to Kashmiri migrants in Kashmir Valley. The PM’s package aforesaid was executed and implemented by the then State Government by promulgating SRO 412 dated 30.12.2009. Subsequently on the basis of a survey conducted with respect to plight of Kashmiri Hindus who stayed within Valley and did not migrate in the wake of law and order situation created due to onslaught of militancy in early 1990s. It was on the basis of aforesaid survey conducted with respect to the living conditions of non-migrant Hindu community of Kashmir, SRO 412 of 2009 was amended by SRO 425 of 2017 and the people belonging to Hindu community who had stayed back in the Valley and did not migrate in 1990, were also extended the benefits of special recruitment drive which was a part of PM’s package for Kashmiri migrants.”

While elaborating on the matter, the Bench then brings out in para 3 that, “It is contended that on 1st December, 2020, the respondents issued an advertisement for filling up 1997 posts while carrying recruitment drive in accordance with SRO 412 of 2009 as amended vide SRO 425 of 2017. The advertisement was also open for the persons who had not migrated. They were, however, required to produce bona fide certificates to be issued by the concerned Deputy Commissioners to certify that such candidates had not migrated and were, accordingly, not registered with the Commissioner (Relief). The Deputy Commissioners were also to certify that the candidates, seeking benefit of special recruitment drive carried pursuant to Prime Minister’s package, belonged to the community described as “Kashmiri Pandits”. The Deputy Commissioners, without any justification, chose not to grant such certificates in respect of a group of non-migrant Kashmiri Hindus, who according to them did not belong to the community of “Kashmiri Pandits”.”

To put things in perspective, the Bench then envisages in para 4 that, “Having been denied the bonafide certificates by the Deputy Commissioners, the petitioners filed the instant petition and sought, by way of interim measure, their participation in the selection process without submitting the bonafide certificates from the Deputy Commissioners. This Court vide order dated 1st of March, 2021, allowed the petitioners to participate in the selection process for the posts advertised by the respondents vide Advertisement Notice bearing No.03 of 2020 dated 1st of December, 2020. It is submitted that the selection process has been almost concluded and selection list framed. The respondents have, however, withheld the selection of the petitioners on the ground that they do not meet the requirement of production of “Kashmiri Pandit” certificate issued by the competent authority.”

While continuing in the same vein, the Bench then enunciates in para 5 that, “The petitioners claim the benefit of SRO 425 of 2017 on the ground that said SRO is an outcome of census carried by the Government of India with regard to the living conditions of Hindus in the Valley who despite adversity had opted not to migrate from the valley during turmoil in the year 1990 and, therefore, the benefit of Prime Minister’s Package cannot be restricted to only one community i.e. “Kashmiri Pandits” and ignoring other Hindu castes, communities and clans who have similarly suffered. All Hindus, it is submitted, who are residing in the Valley and have not migrated, constitute one class and their further classification on the basis of their identities is not permissible in law. There is an allegation made by the petitioners that even SRO 425 of 2017, as is understood by the respondents, is not being followed in letter and spirit, in that, the respondents have in many cases issued bonafide certificates of “Kashmiri Pandits” in favour of candidates who are similarly situated with the petitioners and carry the surname of “Singh”. This, in nutshell, is the factual matrix and the legal submissions made by the petitioners.”

Truth be told, the Bench then points out in para 6 that, “Respondent No.6 has opposed the writ petition and has in its objections submitted that various posts were created by Government of India under Prime Minister’s Special Package for Kashmiri migrants. These posts have been created on supernumerary basis across various departments and in terms of Rule 2 of the Jammu & Kashmir Migrants (Special Drive) Recruitment Rules, 2009, notified vide SRO 412 of 2009 dated 30.12.2009 read with amendments carried vide SRO 425 of 2017 dated 10.10.2017, following category of persons are entitled to apply against these posts:

i. A person who has migrated from Kashmir Valley after 1st of November, 1989 and is registered as such with the Relief Commissioner;

ii. A person who has migrated from Kashmir Valley after 1st of November, 1989, but has not been so registered with the Relief Commissioner on the ground of his being in service of Government in any moving officer or having left the Valley or any other part of the State in pursuit of occupation or vocation or otherwise and is possessed of immovable property at the place from where he has migrated but is unable to ordinarily reside there due to the disturbed conditions;

iii. An internally displaced person who has migrated within Valley from his original place of residence in Kashmir Valley for security reasons and is registered as such with the Relief and Rehabilitation Commissioner, Migrants;

iv. A person who belongs to the Kashmiri Pandit Family and has not migrated from Kashmir Valley after 1st of November 1989 and is presently residing in the Kashmir Valley.”

As it turned out, the Bench then brings out in para 7 that, “It is further submitted that category of persons mentioned at (i), (ii) and (iii) above, the Relief and Rehabilitation Commissioner for Migrants is the designated authority for authentication of migrant status of the applicants. It is his duty to ensure that the applicant is a bonafide migrant while as for the category of persons mentioned at (iv) above, the Deputy Commissioner concerned is the designated authority for authentication of status of the applicant as also to issue the bonafide certificate to the candidate to the effect that he/she belongs to a Kashmiri Pandit family and has not migrated from the Valley and that he/she is presently residing in the concerned district. There is, however, no separate quota within the quota available for any migrant or non-migrant community in respect of these posts. It is, thus, submitted that in the absence of challenge to the Recruitment Rules of 2009, as amended vide SRO 425 of 2017, by the petitioners, the full effect to the rules is required to be given. The petitioners who are neither migrants falling in category (i), (ii) and (iii) nor do they belong to Kashmiri Pandit family are not eligible to participate in the selection process. The Deputy Commissioners have rightly declined to grant them bonafide certificates in this regard.”

Of course, the Bench then brings out in para 8 that, “Another set of objections has been filed by respondent No.4 and 5 which are also on similar lines. It is, however, submitted by respondent No.4 and 5 that the Government of India, Ministry of Home Affairs, vide communication No.12013/6/2014-K-V dated 04.12.2015, sanctioned additional 3000 Government jobs for Kashmiri migrants. The communication aforesaid provided as under:

“It has been decided that the Government of India would fund the additional 3000 State Government jobs, which were to be funded by the State Government in the Prime Minister’s Package-2008 for the return and rehabilitation of the Kashmiri Migrants. The Kashmiri Pandit families who did not leave the Kashmir Valley during the terrorist violence, that began in the State in the early 1990, and who are still residing in the Kashmir Valley, will also be eligible for these jobs and preferably formula of one job per family is to be adopted. The Government of India will bear the cost towards salary and other expenditure in respect of these 3000 jobs/posts for 10 years or till these posts are absorbed against regular posts in the State Government.””

Most significantly, the Bench then minces no words to put across in para 10 that, “Having heard learned counsel for the parties and perused the record, I am of the considered view that the issue primarily raised by the petitioners is no longer res integra. Similar issue has been considered by this Court in OWP No.2048/2017 titled Kashmiri Sikh Community and others v. State of J&K and others decided vide judgment dated 14.02.2019. The parity sought by the Sikhs residing in the Valley who had not migrated in the wake of 1990 turmoil, with the non-migrant Kashmiri Pandits for the purposes of implementation of Prime Minister’s Special Package of employment and rehabilitation has not been accepted by this Court and the classification made by SRO 425 of 2017 has been held to be valid, there is hardly any scope for the petitioners to raise the similar contention yet again. Paras 25 to 27 of the judgment dated14.02.2019 (supra) are quoted as under:

25. From careful reading of the Rules of 2009 and amendments carried thereto vide SRO impugned in this petition, it is abundantly clear that a class different form the migrants has been created for conferring the benefit of the Prime Minister’s Package for return and rehabilitation of Kashmiri Migrants. The class identified under the impugned SRO is a community of Kashmiri Pandits, who did not migrate in the wake of turmoil in the Valley and stayed back despite adverse conditions perceivably prevailing for their community. This classification has been necessitated pursuant to the several representations received for and on behalf of this community, which was living in a very pitiable and pathetic condition in the Valley. The Government of India also took note of the fact that these handful families had not migrated due to reasons of their poverty, economic conditions, a sense of security instilled in them by their supporting neighbourhood, etcetera, etcetera. They stayed back and braved the adverse conditions in the Valley, which seriously impacted growth of their families educationally and economically. Taking note of their plight and the persistent pitiable conditions, a policy decision was taken to confer the benefit of the Prime Minister’s Package of return and rehabilitation on this community as well. As noted above, this was not a hollow exercise by the Government of India. Not only it collected the relevant empirical data but also appointed a Standing Parliamentary Committee to go into all these aspects and make their recommendations. As is averred by the respondents in their affidavit that as per the records available with the Relief and Rehabilitation Commissioner (Migrant), Jammu, there are 15700 Hindu Relief families and 22062 Hindu Non-Relief families, consisting of 49859 souls and 82740 souls respectively. Besides there are 1336 Relief Sikh families and 353 Non-Relief Sikh families consisting of 5043 souls and 1502 souls respectively registered with the Relief Organization. In the light of the aforesaid data placed on record, the respondents have pleaded that the effect of migration in the wake of turmoil in the Valley was more on the Kashmiri Pandit community than other communities. It is though conceded that handful of Sikh families too migrated from the Valley but majority decided to stay back and has been residing peacefully. It is on the basis of this empirical data and the recommendations of the Parliamentary Standing Committee constituted for the purpose that the Government appears to have taken a policy decision to extend some helping hand to this distressed Kashmiri Pandit community.

26. From the aforesaid discussion and in view of the stand taken by the respondents, it cannot be said that the Sikh Community is similarly placed with the Kashmiri Pandits. There appears to be intelligible differentia, which distinguishes Kashmiri Pandits, who have stayed back in the Valley and did not migrate when lakhs of their community members left their home and hearth in view of the then prevailing security scenario in the Valley. The classification clearly distinguishes Kashmiri Pandit community from Sikh Community living in the Valley, which has been left out of group. This classification based on intelligible differentia has a definite nexus with the object sought to be achieved by the Rules of 2009 as amended vide impugned SRO, and is meant to ameliorate the lot of Kashmiri Pandits who preferred to stay back and did not flee despite unsavoury security conditions in the Valley in the year 1989-90. The target killings of members of their community instilled sense of fear and insecurity in their minds, which made their living in the Valley possible only at the cost of their lives. This sense of insecurity was all pervasive. In the milieu, there were certain families who decided not to migrate either because they were poverty ridden or did not have resources to move out or that they were assured by the community in their neighbourhood not to be afraid of. Whatever be the reasons, they decided to stay back but suffered due to unsavoury and not too good conditions in the Valley for the community. As per 137th report of the Standing Parliamentary Committee, their condition continued to worsen. They lacked behind in education and fared very bad on the economic front. Taking into account all these factors and the historical background responsible for en masse exodus of the community, the Central Government decided to provide some relief and succour to these families of Kashmiri Pandits. It is in this background that a policy decision was taken by the Government to treat these families of Kashmiri Pandits, staying in the Valley, at par with the migrants for the purposes of providing the employment package. This necessitated the amendment in the Rules of 2009, so as to include Kashmiri Pandits, staying in the Valley, also as beneficiary of the Prime Minister’s Package for return and rehabilitation of Kashmiri Migrants, issued from time to time.

Viewed thus, it cannot be said, by any stretch of imagination or reasoning, that the classification made by the impugned SRO is not based on intelligible differentia or that differentia has no nexus with the object sought to be achieved. If the object of the Rules of 2009 is return and rehabilitation of migrants, it would make no sense if the same does not provide for rehabilitation of those who have not fled from the Valley despite adverse conditions and have stayed back.

27. In view of the foregoing discussion, I find that the impugned SRO does not amount to class legislation but makes a valid classification which is permissible under Article 14 and 16 of the Constitution.”

What’s more, the Bench then hastens to add in para 11 that, “Faced with the aforesaid position, learned counsel for the petitioners submitted that having regard to the background which preceded the delivery of Prime Minister’s revised package of employment and rehabilitation, there is no escape from the conclusion that the benefit of employment is envisaged for those Hindus who are residing in the Valley and did not migrate during the year 1990. The term “Kashmiri Pandits” used in SRO 425 of 2017 is wide enough to include all non-migrant castes and communities of Hindus residing in the Valley and have similarly suffered as non-migrant Kashmiri Pandits, argues ld. Counsel for petitioners.”

Without mincing any words, the Bench then states quite upfront in para 12 that, “The argument raised is preposterous and cannot be accepted in the face of clear language of SRO 425 of 2017. It needs to be noticed that the petitioners have not challenged SRO 425 whereby the Rules of 2009 have been amended to provide the category of non-migrant Kashmiri Pandits for admitting them to the benefit of revised package of Prime Minister for employment and rehabilitation. In the absence of such challenge, the only question that remains to be determined in this petition is whether the petitioners, who are, admittedly, not Kashmiri Pandits but belong to different castes of Hindus, can be brought within the definition of “Kashmiri Pandits”.”

Simply put, the Bench then brings out in para 13 that, “It is vehemently contended by Mr. Altaf Mehraj, learned counsel for the petitioners, that in the absence of any definition of “Kashmiri Pandits” given in the SRO, all Hindus, who are staying in Kashmir Valley and did not migrate like non-migrant Kashmiri Pandits, should be treated as “Kashmiri Pandits”.”

Most remarkably, the Bench then minces no words to wax eloquently and sagaciously in para 14 that, “Despite great amount of persuasion by Mr. Altaf Mehraj, learned counsel for the petitioners, I regret my inability to accept such broad definition of “Kashmiri Pandits”. It is true that neither in SRO 425 nor in the Rules of 2009 as amended vide SRO 425 of 2017, the term “Kashmiri Pandit family” has been defined. What is, however, defined in Rule 2(ca) is the term “Kashmiri Pandit” which means a person belonging to “Kashmiri Pandit Family” who has not migrated from Kashmir Valley after 1st of November, 1989 and is presently residing in Kashmir Valley. In the absence of specific definition of the term “Kashmiri Pandit family”, the only way to find out the true meaning of the term is to apply the common parlance principle. There is no denying the fact that in common parlance, Kashmiri Pandit is a community of Kashmiri speaking Brahmins living in the Valley from generations and are distinctly identified by their dress, customs and traditions etc. etc. “Kashmiri Pandits”, is a separately identifiable community distinct from other Hindus residing in the Valley like Rajputs, Brahmins other than Kashmiri Pandits, Scheduled Castes, Scheduled Tribes and many others. It is, thus, difficult to accept the contention of learned counsel for the petitioners that the petitioners, who are mostly Kshatriyas, Rajputs, Scheduled Caste non- Kashmiri Brahmins etc. etc. should be treated as Kashmiri Pandits and admitted to the benefits of Prime Minister’s revised package for return and rehabilitation of Kashmiri migrants given effect to by the Rules of 2009 read with SRO 425 of 2017.”

Finally, the Bench then holds in para 15 that, “For the foregoing reasons, I find no merit in the petition and the same is, accordingly, dismissed along with connected application.” In conclusion, Justice Sanjeev Kumar has quite lucidly dwelt on why he has ruled that, “All Hindus living in Kashmir Valley cannot claim benefits meant for Kashmiri Pandits. We have already discussed them threadbare as stated hereinabove! One cannot have any bona fide reason to disagree with what has been held so conclusively!

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Policy & Politics

Back from the brink: Positivity is the key

Anil Swarup

Published

on

“Anil, it is not good news. You have malignancy”. This was my doctor-friend, Ambrish Mithal on phone. He was the one who had persuaded me to get the necessary tests done after some painless growth was detected in my groin and armpits. I had half expected it as the tuberculosis treatment for this growth was not working and the PET Scan had revealed growth in many parts of the body. Ambrish went on to explain that it was Non-Hodgkin’s Lymphoma, cancer of lymph glands. Though I had lost my mother to cancer a few years ago, I didn’t have much of an idea of this variety of cancer. Hence, all that he told me made no sense except that I had been afflicted with this dreaded disease. My wife, Ruchi was with me. My first reaction was that irrespective of the outcome, we will fight it out. She was a step ahead. She looked totally unfazed and was confident that we will tide over the crisis. If there was any turmoil going inside, she didn’t show it. She remained that way right though the six-month trauma of debilitating medication called chemo-therapy. It was her emotional strength that made all the difference.

I looked at the entire crisis differently. If I were to die, so be it. Everyone does some day. I had always believed in living in the moment and enjoying each one of it simply because I had no control over the consequences. This approach helped. I continued to fire on all cylinders. In a sense, COVID was a blessing in disguise. We were cut off physically from most of the world during the past year and a half. Hence, this quarantine on account of lowered immunity made no difference. I was physically shattered because of extreme weakness, loss of appetite, intermittent nausea, loss of weight, strange sensations, high pulse rate, long sessions of hiccups and sleeplessness. Consequently, I lost 10 Kgs of weight (I had previously thought I didn’t have additional weight to shed) and gained 10 years in age. All this made life extremely difficult. However, I was mentally as alert and as positive as ever, penning down my usual three articles every week and working on my next book, “No More A Civil Servant”. However, the Webinars stopped after some time. Intermittent appearances on television also were without the video feed because I could barely recognize myself in the mirror. To begin with, I could continue with physical exercises but as the body became weaker, I had to give it up. Even walking became difficult

I was lucky to run into a very competent set of doctors at Max Hospital at Saket, New Delhi. Ambrish who works in the same hospital was a great help in introducing me to Dr Harit Chaturvedi who performed the biopsy and, he in turn put me across to Dr Rajesh Naithani, a cool-headed doctor who knew his job. The experience otherwise with the hospital was a forgettable one. I have often wondered how and why do such accomplished doctors work in an environment that is so poorly managed. For a patient it is even worse. The hospital is interested in “catching” you. You are a VIP till then but once you are “caught”, you are left to the wolves. The only concern of the management is to somehow make money. Unfortunately, the doctors who have nothing do with this “mismanagement” end up getting a bad name.

The incompetence and callous attitude of some para-medical staff has to be experienced to be believed. You pay through your nose (though my bills were taken care of CHGS), yet get such poor service. My first experience was blood extraction for tests. The person just shoved the needle while engaging in a casual conversation with his colleague. Experience at Sir Gangaram hospital where I went for PET Scan was totally different. Here the para medical staff was not only polite but competent. When I asked one of them how did they manage such painless insertion of needles, I was pleasantly surprised at his response. He said that since all the patients that came to him were already in pain, they made an effort not to add to their misery.

Obtaining medical reports was another tragic experience at Max. Those at the front desk, almost always indifferent and sometimes even rude, have no clue. They make people run around for locating medical reports. The callous indifference is pretty appalling. The hospital takes regular feedback after each visit but follows up with no action.

Despite all the mismanagement, the hospital continues to attract patients on the strength of the quality of its doctors. My miraculous recovery in just six months after six rounds of chemo-therapy can be attributed totally to Dr Naithani. The para-medical staff, however, gave me an infection on account of their incompetence in inserting the Cannula needle.

The news relating to my ailment wasn’t kept a secret but I made no effort to share it with everyone. Still, many of my friends, former colleagues and relatives got to know of it. Their reaction ranged from disbelief to a variety of positive inputs. Many of them narrated cases where Lymphoma had been cured. All this helped enormously in staying positive. It was also extremely heartening to know that so many cared and prayed for me.

In such a crisis, support from family is the key. I was lucky to have them around. For my wife, everything else became secondary as she committed full time to take care of me. One of the fall-out of chemo-therapy was the loss of taste and appetite. She researched and cooked stuff that I could eat. There was never an occasion that she was found wanting, keeping awake with me during many sleepless nights to ensure that I was not put to any inconvenience. More than anything else, she never lost hope. My daughter, Aditi and son, Apurv were living elsewhere in Delhi.

They had their own professional and personal commitments but they ensured that at least one of them was around to assist my wife. Apurv also ferried me to the hospital and undertook the difficult task of engaging with the “people” at the hospital. In his absence, Divam, my son-in-law deputized for him. During these six months what I missed most was the company of my twin grand-daughters, Dviti and Srisha.

It was a tough journey, perhaps one of the very few in my life that I didn’t enjoy. However, it was an experience where positivity helped. It is not all over yet as there could be recurrence of this deadly disease but this experience will hopefully stand me in good stead.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

The incompetence and callous attitude of some para-medical staff has to be experienced to be believed. You pay through your nose (though my bills were taken care of CHGS), yet get such poor service. My first experience was blood extraction for tests. The person just shoved the needle while engaging in a casual conversation with his colleague. Experience at Sir Gangaram hospital where I went for PET Scan was totally different.

Continue Reading

Policy & Politics

Self-proclaimed appearance of Param Bir Singh

Vijay Darda

Published

on

It’s been great that at long last you have turned in, Mr Param Bir Singh! Greetings to you on behalf of the people of Maharashtra! Your appearance calls for a celebration! Your appearance day should be celebrated the same way as that of saints and sages. The date of your appearance has also been recorded in the book of history. Yes, of course why not? How hard you got the police and intelligence agencies to chase you, how many of them got dead tired chasing you and how many of them were reduced to tears! You are in a class beyond compare! Actually we were anxiously waiting for you for a long time! Better late than never! At last you have turned in. Is your appearance any less than a miracle?

Mr Param Bir Singh, I was really longing for you. Everyone was wondering where you went missing? How did you vanish into thin air? Did anyone cause your disappearance? How would you have dodged the red corner notice? Have you changed your appearance? Did you undergo plastic surgery? Tell you what! Your disappearance fired up people’s wildest imaginations! Everybody had something to say about you! Someone said you were staying in Belgium. Someone else said you had relocated to London. Some people claimed with great pride about having tea and breakfast with you. What could we have done? Just kept listening..!

Whom could we have trusted? We just had faith in you and also believed that one day you will definitely come and tell us how you managed to escape the eyes of your department as well as dodge the smart agencies of your country. I think you should conduct training camps for police and intelligence agencies to see what vanishing tricks can be employed. Once the detectives of the agencies become aware of your art, learn your skills and master the nuances, it will become easier for them to nab the accused.

The art of dissimulation that you have demonstrated has failed even Anil Kapoor of Mr India and Amitabh Bachchan of Bhootnath fame. Both of them acted wonderfully on screen. Actually you did all that stuff too, though off screen. I want to thank you that you have also exposed some time-honoured institutions. The first is that the Mumbai police, which is equated to the Scotland Yard police, can so badly be defeated by its single officer in a game of hide and seek. You have also busted the myth of the invincibility of the intelligence agencies which consider themselves as ‘Turram Khan’ or supreme ones. You have proved to them that just one police officer can send them on a wild goose chase. The agencies kept running from post to pillar yet drew a blank. The court declared you a fugitive but amidst all this drama you were relaxing in Chandigarh. How amazing, isn’t it! Wow! I feel like doffing my hat to your skills. People are asking a wrong question: Who among you all three– you, police and intelligence agencies is the most powerful?

You are the emperor of the police department. Even the ones who witnessed your mood swings don’t know who you are, how you are, where you have come from and where you are going to go. Only the emperor can know this. You have also proved that it is not only difficult but impossible to catch the don. I am just astonished to think as to what would have happened if you had not appeared? Those who were saying that they will confiscate your property are ignorant. They don’t know who you are!

By the way, I want to advise your police and intelligence agencies that they must celebrate your appearance day. Your appearance is nothing less than an official celebration. I just want to say that what has passed in six months is a matter of letting bygones be bygone! The government should feel relieved and thankful that your appearance has saved it a lot of labour, time and resources in locating you. You have also benefitted those ensconced in power.

So say with love: Glory to Param Bir Maharaj’s appearance day! And be least bothered about those who have filed a case against you and some policemen for demanding Rs 15 crore from a builder. Now cases keep getting registered! You accused Anil Deshmukh of extorting Rs 100 crore and others accused you of seeking Rs 15 crore as bribe. Now understand that the greater the status, the greater the allegation! God alone knows the truth..!

And of course, one should really learn from you the art of executing somersault on tamarind leaves. The tamarind leaf is very small and no one can be a better acrobat than the one who can execute a somersault on it. That’s why this Hindi phrase ‘Imli Ke Patti Par Gulati Marna’ which means somersaulting on the tamarind leaf. I remembered this adage because your lawyer stated before the Chandiwal Commission that you do not have any specific evidence regarding the allegation in which you had accused Anil Deshmukh of extorting Rs 100 crore a month. You had levelled this allegation on the suggestion of some officials! Oh wow Param Bir Singh! You were the police commissioner.

As you already know that allegations require solid evidence, yet you acted like a child. Initially, you were breathing fire against the former minister, but you executed a reverse somersault when you found yourself on a sticky wicket. You are a great acrobat indeed!

I have just one request to make. Kindly don’t share and teach this magical art to other police officers because what you did has put our police system to shame! Don’t know how many skeletons in the cupboard have tumbled out and are still tumbling out. You are indeed a blessed soul, Param Bir..!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Param Bir Singh is unique indeed. There is no other like him! He has immense potential to vanish into thin air like Mr India! The magic of staying out of sight of the police department of which he is a top officer and dodging all the government agencies is really unmatched. His appearance is no less than a miracle and calls for celebration!

Continue Reading

Policy & Politics

ILLEGAL USE OF LICENSED WEAPON PER SE NOT OFFENCE UNDER SECTION 27 UNLESS MISDEMEANOUR UNDER SECTIONS 5/7 PROVED: SC

Published

on

It is extremely significant to note that the Apex Court just recently on November 26, 2021 in a learned, laudable, landmark and latest judgment titled Surinder Singh vs State (Union Territory of Chandigarh) in Criminal Appeal No. 2373 of 2010 has made it absolutely clear that illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27 of the Arms Act, 1959 (“Act”). The Apex Court also observed that at best, it could be a ‘misconduct’ under the service rules. It must be also mentioned here that the Bench of Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna in this present matter was considering a criminal appeal against Punjab and Haryana High Court’s order dated May 19, 2010 (“impugned order”).

To start with, this notable judgment authored by Justice Surya Kant for CJI NV Ramana, himself and Justice AS Bopanna sets the ball rolling by first and foremost observing in para 1 that, “Appellant-Surinder Singh has laid challenge to the judgement dated 19th May 2010 of the High Court of Punjab and Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter ‘IPC’) and Section 27 of the Arms Act, 1959 (hereinafter, ‘Arms Act’), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.”

While elaborating on the facts of the case, the Bench then envisages in para 2 that, “The prosecution case in brief is that, on 10th July, 1999, Mansur Ali, Advocate (Complainant) was sitting at his residential office alongwith his clerk Maler Singh (PW-3), giving dictation to his steno, R.K. Sood (PW4). At about 5:30 PM, the Appellant, who was then a Head Constable in Chandigarh Police, entered the residential office of the Complainant in an inebriated condition and stating that he was a beat officer of the lane, asked for a glass of water. He thereafter sat across the Complainant and after consuming the water served to him by Balbir Singh (PW5), pulled out his service pistol and threatened the Complainant by pointing the pistol at him and stated that “there are 10 bullets in this gun and I will kill 20 people today”. Appellant also asked the Complainant to stand and raise his hands. At the same time, he directed Maler Singh and R.K. Sood to step outside the office, to which they complied. In the meantime, the Appellant moved around the table, towards the Complainant, pulled the lever and made himself ready to fire. Sensing the seriousness of the situation, Complainant lunged at the Appellant and pushed his hand towards the ceiling, which resulted in the bullet, fired from the pistol, hitting the ceiling of the office.”

While continuing in a similar vein, the Bench then enunciates in para 3 that, “The Appellant then attempted to fire a second time, however, he was unable to and in the said exercise a bullet fell from his pistol. By that time, the ladies of the house had entered the office and raised a holler. Panicstricken, Appellant rushed out of the office, leaving behind his wireless set on the table of the Complainant and his scooter outside the house. No injury was caused to the Complainant. The incident was then reported to the police. Upon receiving the information, about 10-15 minutes later, police officials arrived at the house of the Complainant and F.I.R. was lodged against the Appellant, whereafter, the police officials sprang into action and the Appellant was arrested by SI Ramesh Chand (PW6), who found the Appellant near the Masjid of Sector 20A, with the pistol still in his hand. Appellant was then taken for medical examination where he refused to give his urine or blood samples.”

Furthermore, the Bench then states in para 4 that, “The investigation ensued in light of the above-stated facts, and upon collection of substantial evidence, the charge sheet was filed against the Appellant. The case was committed to the Additional Sessions Judge, Chandigarh, and charges under Section 307 IPC and Section 27 of the Arms Act were framed. The Appellant abjured his culpability and claimed trial.”

Simply put, the Bench then lays bare in para 9 that, “Since there is no dispute regarding the presence of the Appellant at the residential office of the Complainant at the time of the incidence, or that the bullet was fired from his service pistol, the pivotal question before the Trial Court was, whether the Appellant fired the pistol, and if so, was the weapon used with the intent to kill the Complainant. The Trial Court observed that the prosecution witnesses had, by and large, supported the prosecution version and that no reason was adduced to depict why the Complainant would want to falsely implicate the Appellant. Although the Trial Court noted that there were some inconsistencies in the statement put forth by the prosecution witnesses, however, the same were held to be minor contradictions brought about naturally due to the passage of time. The Court found version of the Defense to be “a patch of lies and figment of imagination”, and rejected the same in its entirety.”

What’s more, the Bench then reveals in para 10 that, “As far as the charge under Section 27 of the Arms Act was concerned, the Trial Court observed that the Appellant had used his service pistol without any prior permission and for an illegal purpose. The act of firing by the Appellant was thus held to be in contravention of Section 27 of the Arms Act. The Trial Court therefore convicted the Appellant under Section 307 IPC and Section 27 of the Arms Act and awarded a sentence of rigorous imprisonment for 3 years.”

Needless to say, the Bench then states in para 11 that, “Discontented with his conviction, the Appellant preferred an appeal before the High Court of Punjab & Haryana. The High Court upon reappraisal of the evidence, sustained conviction and the consequential sentence imposed by the Trial Court and dismissed the appeal.”

Be it noted, the Bench then observes in para 30 that, “The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanor under Section 5 or 7 of the Arms Act. At best, it could be a ‘misconduct’ under the service rules, the determination of which was not the subject of the trial.”

As a corollary, the Bench then observes in para 31 that, “In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge under Section 27 of the Arms Act.”

Most significantly, the Bench then holds succinctly in para 35 what forms the cornerstone of this brief, brilliant and balanced judgment that, “Adverting to the facts of the case in hand, we are of the considered view that at this stage, the sentence awarded to the appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:

a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.

b. Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant’s good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant’s clean post-incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.

d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.

e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction.”

Finally, the Bench then aptly holds in para 36 that, “Consequently and for the afore-stated reasons, the criminal appeal is partly allowed. While the conviction and sentence awarded to the Appellant under Section 27 of the Arms Act is set aside, his conviction under Section 307 IPC is maintained. The sentence under Section 307 IPC is however reduced to the period already undergone. Since, Appellant is on bail, his bail bonds are discharged.”

To sum it up, the Apex Court thus makes it distinctly clear in this leading case that the illegal use of licensed weapon is per se not an offence under Section 27 of the Arms Act unless misdemeanor under Section 5 or 7 of the Act is proved. Of course, all the Courts whether they are Trial Courts or High Courts must always abide by what the three Judge Bench of the Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna have held so clearly, categorically and convincingly also in this noteworthy case! There can be just no denying it!

Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

Continue Reading

Policy & Politics

Musings of a BSF officer’s daughter

Published

on

An important part of being raised as a BSF officer’s kid was to get acquainted with the vagaries and challenges of a borderman’s job and to learn about their life-threatening situations along India’s international borders in states and union territories afflicted with insurgency and terrorism.

The task of protecting the borders stretched to the protection of villages in those areas from the enemy’s nefarious designs and activities.

In border areas, phenomena such as cross-border shelling and infiltration were routine and seldom shocked or demoralized a borderman’s family. Bordermen knew places they were posted to quite well. In several instances, their understanding was better than that of the locals, having researched every nook and corner, ditch, tunnel and ridge and topographical feature.

My father, Late Shri RS Mehta, who retired from the Border Security Force (BSF) as an Inspector General (IG), belonged to one of the first batches of officers to join the force. As a result, right from the time of BSF’s founding in 1965, he was passionately involved in the process of giving the force a shape, identity and a clear direction in over three decades of service. He held many key positions in the organization up to, and including, the Commanding Officer of a battalion.

During his very eventful career with the force, he conducted several counterterrorism operations in Jammu & Kashmir as well as planned and executed many counter-insurgency operations in the Northeastern part of India. These experiences were to later come in handy when, as a senior officer, he was instrumental in formulating many protocols and policies relating to securing the Nation’s borders.

My father used to tell us that bordermen had clearly defined protocols to deal with residents of border villages. A key part of their duty was to maintain an excellent rapport with the local population to win its faith and confidence. Moreover, in certain areas of the country, this also involved making sincere attempts to expedite the integration of the locals into the national mainstream.

I recall my father narrating his experience during his tenure as a young Commanding Officer (CO) posted at Dera Baba Nanak in Punjab’s Gurdaspur district, where he was instrumental in organizing several sports and cultural programmes for the villagers. He would always encourage them to wholeheartedly participate and excel in such events organized by BSF to become model citizens. Various prizes, certificates of merit and goodies were given to participants to build strong linkages. Papa also mentioned his efforts to work closely with Sub-Divisional Magistrates (SDMs) and Tehsildars to provide to the border villages basic facilities such as schools, dispensaries, etc., and to resolve any immediate problems that they might be facing.

Undeniably, the rapport that a borderman shares with the local population can hardly be replicated by the police or other law-enforcement agencies. In a similar vein, inhabitants of rural habitations secured by BSF feel inclined to provide security-related information, updates on border activity and other intelligence inputs.

I chanced to accompany my father to one of his border inspection tours of a remote area in Jammu & Kashmir. Certain pockets in the mountainous regions of Gul and Kishtwar were becoming host to terrorist camps. Our convoy comprising four to five vehicles swerved through the ravines of the majestic Himalayas. In a lonely spot, just by the waterfall, seeing an elderly lady walking by herself, Papa asked the driver to stop for a breather, rolled down his window and asked her, “Amma, sab theek hai na?” (Hope all is well?). To which she replied, “Ethe bus butte he butte ne!” Once the convoy started moving again, I asked my father what she meant and he laughingly told me that her evasive answer implied that there was nothing to tell as there were “only pebbles and more pebbles” in that area.

When we halted for the night at a BSF base camp, we were informed that there were many interceptions of our wireless network by the miscreants who had even challenged the inspecting officer to locate their camp and visit them for a cup of tea! Thanks to his knowledge of the culture and traditions of the area, and other information related to the region, it was possible for my father to deduce that local herdsmen, with their routine cross-border travels and nomadic way of life, had allied with the enemy. Consequently, they were providing strategic support to the miscreants from across the border.

Having understood the root of the problem, the force could carry out combing operations in the region, freeing it of the anti-national forces and, thus, cleansing the area of any terrorist camps.

It would not be wrong to say that the rigorous training of a borderman, his vast experience at the border in different terrains and familiarity with the people living in border villages, make him fit to fulfill his role of securing areas not just along the border but also beyond.

Recently, the Ministry of Home Affairs has issued a notification to widen BSF’s jurisdiction for seizure, search and arrest up to 50 kilometres from the international border in the states of Assam, West Bengal and Punjab.

On October 11, 2021, the Ministry of Home Affairs, Govt. of India announced that it was amending a 2014 notification related to the jurisdiction of the BSF to exercise its powers in states that are on the international border. This notification replaces a 2014 order under the BSF Act, 1968, which also covered the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya. It also specifically mentions the two newly created union territories of J&K and Ladakh. The BSF can carry out search and seizure operations to check and combat smuggling, illegal entry of migrants and other nefarious activities.

The Central Government’s decision to thus extend the area of jurisdiction of the BSF is, therefore, a welcome step. It will enable our bordermen to carry out combing and search operations in more areas and help the state governments concerned in weeding out anti-national elements to greatly reduce threats to national security. Further, having a centralized chain of command makes the BSF well-equipped and competent to handle issues relating to border security and to also secure the areas adjoining and adjacent to the borders.

As someone rightly noted a long time ago, the price of liberty is eternal vigilance.

The author is a practicing advocate at the Delhi High Court 

Continue Reading

Policy & Politics

Closure report can’t be filed merely because informant did not supply adequate materials for probe: SC

The three-judge Bench of the Supreme Court, while setting aside closure reports against some accused in a murder case did not shy away from remarking that a ‘fair investigation is a necessary concomitant of Articles 14 and 21 of the Constitution of India’. The court observed that it is the statutory as well as constitutional duty of the police to investigate on receiving report of the commission of a cognizable offence.

Published

on

In a recent, remarkable and righteous decision titled Amar Nath Chaubey vs Union of India [SLP (CRL.) NO. 6951 of 2018] delivered just recently on December 14, 2020 has maintained that a closure report cannot be filed merely on the ground that the investigation was not possible as the informant had not supplied adequate materials to investigate. The three-judge Bench of Apex Court headed by RF Nariman and also comprising of Justice Navin Sinha and Justice Krishna Murari while setting aside closure reports against some accused in a murder case did not shy away from remarking that, “A fair investigation is a necessary concomitant of Articles 14 and 21 of the Constitution of India.” The Court observed that it is the statutory as well as constitutional duty of the police to investigate on receiving report of the commission of a cognizable offence.

To start with, the ball is set rolling in the opening para 1 of this notable judgment wherein it is observed that, “One Shri Ram Bihari Chaubey, the father of the petitioner, was shot dead at his residence in Village Shrikanthpur, Chaubepur, Varanasi in the State of Uttar Pradesh, on 04.12.2015 at around 7.15 AM. An F.I.R. No. 378/2015 under Sections 302, 147, 148 and 149, I.P.C. was registered the same day at Chobepur Police Station at 11.15 AM. Four unknown assailants were stated to have come on a motor cycle. Two of them entered the residence and shot the deceased, while the two others waited outside, after which they all escaped.”

To put things in perspective, the Bench then observed in para 2 that, “The petitioner, son of the deceased, approached the Allahabad High Court complaining of the lackadaisical manner in which the police was investigating because some powerful personalities were also involved. The investigating officers were also being changed with regularity seeking a mandamus for a proper inquiry into the murder of his father including by the C.B.I. The High Court called for a progress report and also required the Chief Secretary to file his affidavit in the matter. The petitioner is aggrieved by the impugned order of the High Court dated 17.05.2018 disposing the writ petition, accepting the contention of the police that the investigation would be concluded expeditiously and report will be submitted before the competent court within a period of eight weeks.”

Of course, the Bench then observes in para 3 that, “We have heard the learned counsel for the petitioner, for the State of Uttar Pradesh and for respondent no.5. On 29.06.2017 charge sheet was submitted against one Raju alias Nagender Singh son of late Ramji Singh, Ajay Singh and Shani Singh both sons of Narayan Singh, citing 21 witnesses. The charge sheet stated that the name of respondent no.5 had transpired during investigation as having conspired in the killing after which Section 120B I.P.C. was also added. The charge sheeted accused Raju alias Nagender Singh confessed that apart from the others named by him, respondent no. 5 in conspiracy had the murder planned and executed. The investigation was thus kept pending against Manish Singh, Dabloo Singh and respondent no.5. The police in the case diary noting dated 17.02.2017 recorded that on basis of confidential information from the police informer, that respondent no.5 had given a “supari” of Rs. Five lacs for murder of the deceased. Political rivalry existed between the deceased and respondent no.5 on account of assembly elections as also panchayat elections. It further contained noting that the real person behind the incident was respondent n. 5 based on very confidential information, having serious ramifications. The case diary noting dated 06.04.2017 records that the police party went to landmark tower to arrest Ajay Singh and Shani Singh. Respondent no.5 demanded the production of arrest warrant against the concerned persons and required the investigating officer to give in writing that the suspect was being taken for interrogation. Raju alias Nagender Singh after intensive interrogation disclosed that with co-accused Ajay Singh, he had gone to meet respondent no.5, disclosing the manner in which the murder was committed by him and his accomplices. The case diary noting dated 29.06.2017 records that investigation against Dabloo Singh and Manish Singh and respondent no.5 were in progress. Respondent no.5 vide Annexure P.5 letter no. 4/2017 wrote to the Principal Secretary that he was being falsely implicated and the matter be properly investigated, if required from the C.B.I.”

While further elaborating on the progress of the case, the Bench then elucidates in para 4 that, “The Sub-Inspector of Police submitted a progress report before the High Court on 11.10.2017 that the investigation up to that date revealed the involvement of Ajay Singh, Raju alias Nagender Singh, Shani Singh, Manish Singh, Dabloo Singh and respondent no.5 as a conspirator. Charge sheet had been submitted against Ajay Singh, Raju alias Nagender Singh and Shani Singh and investigation with regard to Dabloo Singh, Manish Singh and respondent no.5 is still pending. It further stated that raids were conducted for arresting others including respondent no.5. From the material collected during investigation it was apparent that the murder was committed due to political rivalry by hatching a conspiracy effectively with the help of respondent no.5 and that the police were trying to collect more credible materials. Another affidavit was filed on 16.05.2018 before the High Court, by one Shri Devender Chaubey, the In-charge Chief Secretary, disclosing that respondent no.5 had 24 criminal cases against him including under Section 302 IPC. In five cases final report had been filed in absence of credible evidence. In nine cases respondent no. 5 had been charge sheeted but was acquitted. Five criminal trials are still pending against respondent no.5. He had also been put behind bars under the provisions of National Security Act by order dated 11.11.1998. It concluded that the allegations against respondent no.5 were under investigation.”

To be sure, it is then revealed in para 5 that, “This Court issued notice in the present matter on 07.09.2018. On 20.01.2020, this Court directed the Director General of Police, U.P. to file an affidavit with regard to the status of the investigation vis-à-vis respondent no.5. An affidavit was filed by the D.G.P. on 22.02.2020 stating that there was no cogent evidence against respondent no.5 despite discreet efforts. Investigation of the case was therefore closed on 30.01.2019 and report submitted in the concerned court along with other police papers on 04.06.2019 with regard to accused Ajay Singh, Shani Singh, Raju alias Nagender Singh only and no further investigation was pending against any person. The trial court summoned the complainant for evidence on several dates, but the complainant had not appeared.”

Be it noted, the Bench then observes in para 6 that, “We have considered the matter. The F.I.R. was registered on 04.12.2015. Eight investigating officers have been changed. Respondent no.5 suo motu sought impleadment in the writ petition filed in the High Court. An investigation which had been kept pending since 04.12.2015 was promptly closed on 30.01.2019 after this Court had issued notice on 07.09.2018. The affidavit of the Director General of Police, U.P. not being satisfactory, on 26.10.2020 this Court required the respondents to file copy of the closure report stated to have been filed before the court concerned. The affidavit filed by the Circle Officer, Pindara, Varanasi dated 31.10.2020, pursuant to our order dated 26.10.2020 encloses the closure report dated 02.09.2018, the supervision note of the Superintendent of Police, Rural dated 17.12.2018 and the closure report dated 30.01.2019 submitted in court. We have gone through the same. It simply states that there was no concrete evidence of conspiracy against respondent no.5 and that the informant had not placed any materials before the police direct or indirect with regard to the conspiracy. As and when materials will be found against respondent no.5 in future, action would be taken as per law. No credible evidence was found against Manish Singh and Dabloo Singh.”

While slamming the police investigation and the closure report, the Bench then, more significantly, without mincing any words states upfront in para 7 that, “We are constrained to record that the investigation and the closure report are extremely casual and perfunctory in nature. The investigation and closure report do not contain any material with regard to the nature of investigation against the other accused including respondent no.5 for conspiracy to arrive at the conclusion for insufficiency of evidence against them. The closure report is based on the ipse dixit of the Investigating Officer. The supervision note of the Senior Superintendent of Police (Rural), in the circumstances leaves much to be desired. The investigation appears to be a sham, designed to conceal more than to investigate. The police has the primary duty to investigate on receiving report of the commission of a cognizable offence. This is a statutory duty under the Code of Criminal Procedure apart from being a constitutional obligation to ensure that peace is maintained in the society and the rule of law is upheld and applied. To say that further investigation was not possible as the informant had not supplied adequate materials to investigate, to our mind, is a preposterous statement, coming from the police.”

Most significantly, the Bench then minces no words to state squarely, simply and straightly in para 8 that, “The police has a statutory duty to investigate into any crime in accordance with law as provided in the Code of Criminal Procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.”

Briefly stated, para 9 then while citing a recent relevant case law states that, “In Manohar Lal Sharma vs. Principal Secretary and ors., (2014) 2 SCC 532, this Court observed as follows:

“24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens.

26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to book.

xxx xxx xxx

39. … In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference.””

It is worth paying attention here that para 10 then discloses that, “The trial is stated to have commenced against the charge sheeted accused, and the informant summoned to give evidence. In the facts of the case, we direct that further trial shall remain stayed. The closure reports dated 02.09.2018, 17.12.2018 culminating in the report dated 30.01.2019 are partly set aside insofar as the non-charge sheeted accused are concerned only. Those already charge sheeted, calls for no interference.”

Now it is time to deal with concluding paras. Para 11 states that, “We hereby appoint Shri Satyarth Anirudh Pankaj, I.P.S. as the senior officer, State of Uttar Pradesh to carry out further investigation in the matter through a team of competent officers to be selected by him of his own choice. The State shall ensure the availability of such officers. The investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police, Uttar Pradesh shall do the needful.” The last para 12 then stipulates that, “List immediately after two months for further orders.”

In a nutshell, this latest, landmark, learned and laudable judgment leaves no room for doubt that closure report cannot be filed merely because informant did not supply adequate materials to investigate. The police must always follows this useful directive whenever it is confronted with such situations in future! It will in doing so certainly benefit its ownself as also the investigation process which has to be taken always to its logical conclusion by ensuring that the guilty is not spared and the innocent is not convicted or harassed in any manner! This is exactly what the Supreme Court also desires so by this commendable judgment as is clearly manifested also in it! Very rightly so!

Continue Reading

Policy & Politics

Inter country adoptions: Delhi HC issues directions for enabling parties to obtain certification from DM, foreign authorities and CARA

Published

on

In a progressive, powerful and path breaking development, the Delhi High Court has in a learned, latest, laudable and landmark judgment titled Rajwinder Kaur & Anr v Central Adoption Resource Authority in W.P.(C) 279/2019 and CM APPL. 40751/2021 and connected matters has commendably issued various directions for enabling adoptive and biological parents to obtain the required certification and no objection from District Magistrates, foreign authorities and Central Adoption Resource Authority (CARA) in relation with inter country adoptions. This was the crying need of the hour also! It must be mentioned here that this development came while the Court was dealing with three cases pertaining to international adoption of Indian children.

To start with, the ball is set rolling in this notable judgment authored by a single Judge Bench of Justice Prathiba M Singh first and foremost in para 1 wherein it is put forth that, “This hearing has been done in physical Court. Hybrid mode is, however, permitted only in cases where explicit permission has been taken from the Court.”

Simply put, the Bench then points out in para 2 that, “Vide order dated 9th November, 2021, in view of the absence of a proper status report filed by CARA and non-issuance of NOCs to the Petitioners, this Court had directed the presence of Ms. Tripti Gurha, member Secretary and CEO of CARA on the next date.”

As we see, the Bench then states in para 3 that, “Further to the last order, Ms. Tripti Gurha has appeared before the Court and ld. Counsel under instructions from CARA, has made submissions today. Ld. counsels for the Petitioners have also been heard.”

To put things in perspective, the Bench then envisages in para 4 that, “Vide judgement dated 31st August, 2021, the following directions were issued:

96. In terms of the directions issued above;

a. The Secretary, Ministry of Women and Child Development, Government of India shall file a report before this Court as to the manner and mode of creating a permanent mechanism to deal with inter-country adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.

b. There are several errors on the website of CARA in respect of HAMA adoptions. CARA shall carry out corrections in its website and place a report before this Court within eight weeks;

c. CARA shall also frame guidelines for the processing of NOCs for inter-country adoptions under HAMA and make available forms for this purpose on the portal. Let the draft guidelines and the timelines for activating the portal be placed on record by means of a status report within two months. Details of the special Committee constituted to deal with HAMA adoptions shall also be specified in the report;

d. A status report in respect of each of the writ petitions and the processing of grant of NOCs be also filed at least one week before the next date of hearing.””

As it turned out, the Bench then discloses in para 5 that, “It is submitted by CARA’s counsel that pursuant to the judgement passed by this Court, the Adoption (Amendment) Regulations, 2021 (hereinafter “2021 Regulations”) have been notified w.e.f. 17th September, 2021. They have been framed specifically to lay down the procedure to be followed for adoption of children under the Hindu Adoptions and Maintenance Act, 1956 (hereinafter “HAMA”) by parents who desire to give their children in adoption to adoptive parents located in a foreign country. The said Regulations apply to all inter-country adoptions under HAMA, both amongst relatives and non-relatives. Under the said 2021 Regulations, there are broadly two categories:

• Category No.1 are those adoptions which were executed pre-2021 Regulations; and

• Category No.2 are adoptions undertaken post the coming into effect of the 2021 Regulations.”

Furthermore, the Bench then enunciates in para 6 that, “On behalf of CARA, it is further submitted that upon the 2021 Regulations coming into effect, various steps have been taken by CARA including:

(i) Appointment of an officer at the level of an Assistant Director as the Nodal Officer for dealing with HAMA-related adoptions;

(ii) Communications have been issued to all State Governments through the Principal Secretary, Ministry of Woman and Child Development, informing them of the 2021 Regulations coming into effect and seeking their cooperation in implementation of the same; and

(iii) Various webinars have been conducted by CARA to sensitize all stakeholders, since the first week of November, 2021.”

What’s more, the Bench then brings out in para 7 that, “On behalf of the Petitioners who are before this Court, it is submitted that no NOCs have been issued to any of the parties and the process of issuance of NOCs is at different stages.”

Needless to say, the Bench then specifies in para 8 that, “In W.P.(C) 279/2019, the Petitioners have appeared before CARA and requisite documentation has been submitted. The DM’s certificate has also been obtained by the Petitioners on 11th November, 2021 and has been submitted to CARA. Thereafter on 16th November, 2021, CARA has written to the relevant central authority in Spain seeking the required certification under Article 5 and Article 17 of the Convention on Protection of Children and Co-Operation in respect of Inter-country Adoption, 1993 (hereinafter “Hague Convention”). Copy of the said communication has been shown to the Court. This communication has however not been marked to the Petitioner. A copy of that said letter has now been given to the ld. Counsel for the Petitioner who may follow up with the Spanish authorities on the status of the said certification. Post the said certificate being obtained, it is assured to the Court that CARA would initiate steps to issue the NOC, expeditiously.”

Going ahead, the Bench then further specifies in para 9 that, “Insofar as W.P.(C) 10064/2019 is concerned, it is submitted by ld. Counsel for the Petitioner that the documents could not be submitted by the Petitioner to CARA as the counsel had met with an accident. Accordingly, the required documents have now been submitted to CARA and also to the ld. Counsel for CARA, in Court. Petitioner/Petitioner’s authorized representative to appear before CARA on 26th November, 2021, at 2:30 p.m., in this regard.”

Not stopping here, the Bench then further brings out in para 10 that, “In W.P.(C) 11168/2020, the adoption is by the paternal uncle (Chacha) of the child who is located in the USA. The Petitioner to accordingly appear before the Nodal Officer physically or through authorized representative to submit the requisite documents and obtain the NOC. The Petitioner/authorized representative to appear before CARA on 26th November, 2021, at 1:30 p.m.”

Adding more to it, the Bench then stipulates in para 11 that, “In both W.P.(C) 10064/2019 and W.P.(C) 11168/2020, the Nodal Officer shall meet the Petitioner/authorized representative and coordinate with the concerned District Magistrate in order to enable the Petitioners to obtain the verification from the concerned District Magistrate expeditiously. Upon the same being obtained, CARA assures the Court that it would take necessary steps in terms of the 2021 Regulations to move forward for issuance of the NOC. All communications either with the District Magistrate or with any foreign authority shall be copied to the authorized representative of the Petitioners, as also the Petitioners, so that the Petitioners are duly informed of the progress of the application for issuance of NOC.”

Most crucially, what forms the cornerstone of this brief, brilliant and balanced judgment is then encapsulated in para 12 wherein it is held that, “From the facts that emerge in these three writ petitions, this Court notes that the main issue that arises for the applicants is the obtaining of verification from the concerned SDMs/DMs in terms of Schedules XXXIII and XXXIV of the 2021 Regulations. The second issue that arises is also as to the manner in which the coordination is to be effected between the adoptive child, adoptive parents, the relevant foreign agencies, CARA and the biological parents. In order to provide assistance and enable adoptive and biological parents to obtain the required certification and obtain no-objection from both District Magistrate as also the foreign authorities, CARA would consider implementing the following steps:

(i) Creation of a database of all SDMs/District Magistrates as also the State Adoption Resource Agencies and District Child Protection Unit who will need to be contacted for the purpose of verification and issuance of certificates;

(ii) Publication of such a database on CARA’s website;

(iii) Creation of a help desk at CARA which shall be available both physically and online. The help desk/helpline should have a 24- hour helpline, considering the time differences in different jurisdictions. This would enable adoptive parents to contact CARA as per their convenience. The feasibility of the same shall be reviewed by CARA and shall be submitted before this Court by way of a status report;

(iv) CARA shall also consider permitting advocates/lawyers to appear as authorized representatives to coordinate and facilitate the various formalities that are required to be undertaken;

Read concluding section on thedailyguardian.com

(v) Mechanism to be created to enable biological or adoptive parents to appear even virtually or be available telephonically, whenever CARA requires to contact them or interact with them;

(vi) All communications with foreign authorities or District Magistrates or any other parties made by CARA shall also be copied by an e-mail to the party concerned as also their authorized representatives so that the procedure being followed and the progress of the application is within their knowledge as well. This would also enable the parties concerned to follow up with the concerned foreign authority or with the District Magistrate for issuance of the certification.”

Be it noted, the Bench then lays bare in para 13 that, “Mr. Atul Nagarajan (Mb. No. 9811169087), ld. Counsel who is familiar with adoption matters and who is present in Court today, is appointed as an Amicus Curiae to assist the Court in these petitions. Mr. Nagarajan, may be provided with electronic copies of these writ petitions by the Court Master, to enable him to assist this Court.”

It is worth noting that the Bench then directs in para 14 that, “Let a status report in respect of the implementation of the above steps be placed on record within two weeks. In the status report, CARA shall also mention the details of the number of applications which are pending for inter-country adoption and the time period for which they have been pending with CARA. Steps taken qua each of the applications and their respective status shall also be placed before the Court. In the case of all inter-country adoption applications which are pending, CARA shall inform the parties concerned about the 2021 Regulations so that the said applications can also be processed towards issuance of NOCs.”

For sake of clarity, the Bench then also added in para 15 that, “In the meantime, all the ld. Counsels for the Petitioners as also the ld. Amicus Curiae may place on record their suggestions if any, in this regard.”

Quite significantly, the Bench then directs in para 16 that, “Let Court notice be issued to Mr. Kirtiman Singh, ld. CGSC, Union of India, with a copy of this order to enable him to obtain instructions from Ms. Preeti Pant, Joint Secretary, Ministry of Women and Child Development, Government of India. The Union of India to also place on record the status report in respect of the implementation of the 2021 Regulations.”

Of course, the Bench then hastens to add in para 17 that, “On the next date, the Nodal Officer for HAMA adoptions, at CARA, shall be present in Court.”

It is worth paying attention that the Bench then directs in para 18 that, “List these petitions on 20th December, 2021.”

Finally, the Bench then concludes by making it clear in para 19 that, “These are part-heard matters.”

In a nutshell, this extremely commendable, cogent, composed, concise and convincing judgment by a single Judge Bench of Justice Prathiba M Singh of the Delhi High Court lays bare the steps to be taken for enabling adoptive and biological parents to obtain the required certification and no objection from District Magistrates, foreign authorities and Central Adoption Resource Authority (CARA) in relation with inter country adoptions. The same must be done at the earliest. This is the real purpose also of this learned judgment and so its implementation brooks no delay!

Sanjeev Sirohi, Advocate

Continue Reading

Trending