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Policy & Politics

An Evaluation Of Protection Of Children From Sexual Offences Act, 2012 (Pocso Act)

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INTRODUCTION

The actual deficiency of Indian Penal Code and nonattendance of any rigid regulation for actually tending to and handling offensive wrongdoings like sexual double-dealing and sexual maltreatment of youngsters birthed the initiation of POCSO Act, 2012 as the actual expectation of Government foundations was to safeguard the youngsters from offenses of rape, sexual provocation and erotic entertainment and to work with satisfactory lawful hardware by laying out extraordinary courts for preliminary of such offenses and matters accidental associated with youngster sexual maltreatment violations. This was in due consistence of Article 15 of Constitution of India which orders the states to safeguard the offspring of this country and in lieu of United Nations Conventions on the Rights of the Child which recommends the arrangement of guidelines to be trailed by state parties in getting the wellbeing of the youngster. However this regulation is general in nature and applies to everybody regardless of their rank, belief, orientation, religion and so forth especially, it rebuffs the wrongdoers perpetrating violations against the kids in provincial as well as metropolitan region of the country.

AN OVERVIEW OF THIS ACT

To manage youngster sexual maltreatment cases, the Government has gotten a unique regulation, specifically, The Protection of Children from Sexual Offenses (POCSO) Act, 2012. The Act has come into power with impact from fourteenth November, 2012 alongside the Rules outlined thereunder. The POCSO Act, 2012 is a thorough regulation to accommodate the insurance of kids from the offenses of rape, inappropriate behavior and erotic entertainment, while protecting the interests of the kid at each phase of the legal interaction by fusing youngster well disposed systems for revealing, recording of proof, examination and fast preliminary of offenses through assigned Special Courts.

The said Act characterizes a youngster as any individual under eighteen years old, and characterizes unique types of sexual maltreatment, including penetrative and non-penetrative attack, as well as sexual provocation and porn, and considers a rape to be “bothered” under certain conditions, for example, when the mishandled kid is insane or when the maltreatment is submitted by an individual in a place of trust or authority opposite the kid, similar to a relative, police official, educator, or specialist. Individuals who traffic youngsters for sexual designs are additionally culpable under the arrangements connecting with abetment in the said Act.

The said Act recommends severe discipline reviewed according to the gravity of the offense, with a most extreme term of thorough detainment forever, and fine. With regards to the best worldwide kid assurance guidelines, the said Act additionally accommodates required detailing of sexual offenses. This gives occasion to feel qualms about a legitimate obligation an individual who has information that a youngster has been physically manhandled to report the offense; assuming he neglects to do as such, he might be rebuffed with six months detainment or potentially a fine.

IMPORTANT PROVISIONS OF THIS ACT

POCSO Act characterizes youngster as any individual under 18 years age,

• There are five kinds of sexual offenses against youngsters under POCSO Act. These are: penetrative rape; disturbed penetrative rape; rape; disturbed rape; and sexual harassment

• Abetment of an offense or an endeavor to submit an offense is likewise culpable under the Act,

• Involving a youngster for explicit purposes, for example, portrayal of the sexual organ of a youngster, use of a kid occupied with genuine or invigorated sexual demonstrations, the profane or vulgar portrayal of a youngster is an offense under POCSO Act and is punishable,

• A Special Court is a court to be set up under segment 28 of the POCSO Act for giving quick preliminary and to attempt the case in a youngster well disposed atmosphere.

• The Special Court will finish the preliminary inside a time of one year from the date of taking awareness of the offense.

PROCEEDURE FOR FILING THE CASES

• Reporting of offence to the SJPU or the local police

• In case, child is in need of care and protection, SJPU/ local police to provide such care within 24 hours of the report

• SJPU/ local police to report the matter to CWC and Special Court within 24 hours

• Obligation of media, studio and photographic facilities report cases to SJPU/ local police

• Failure to report commission of offence punishable with imprisonment of six months or with fine or both

• Failure to record an offence also punishable with imprisonment of six months or with fine or both

• Failure to report by a person, who is in charge of any company or an institution, in Respect of offence committed by subordinate under his control, also punishable with imprisonment of one year and fine

• Failure to report not punishable in case of a child

• False complaint against any person with malicious intent punishable with imprisonment of 6 months or with fine or both

• False complaint against child, punishable with imprisonment of one year or with fine or with both

• No civil or criminal liability for giving information in good faith

MEDICAL EXAMINATION UNDER SECTION 27 OF POCSO ACT

As per section 164A of CrPC:

In case of girl child, medical examination by lady doctor • Medical examination in the presence of parents

In case parent of the child cannot be present, medical examination to be conducted in the presence of a woman nominated by the head of the medical institution.

CONCLUSION

The primary target of the POCSO Act is to give insurance to the kids against rapes and misuse and each sort of sexual offenses. In any case, the goal of this Act can not be satisfied the length of the subjects of safe sex, great touch and terrible touch stays a no-no inside Indian families. The Protection of Children from Sexual Offences Act, 2012, (POCSO Act) and its corresponding rules were enacted with the objective of protecting children from a slew of sexual offences and introducing child-friendly judicial mechanisms for dealing with such offences.

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Policy & Politics

High Court can’t terminate services of District Judge or impose any punishment of reduction in rank under Article 235: Chhattisgarh HC

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In an extremely significant judgment with far reaching consequences, the Chhattisgarh High Court has as recently as on May 13, 2022 in a brief, brilliant, bold and balanced judgment titled Ganesh Ram Berman v. High Court of Chhattisgarh & Anr. in Writ Petition (S) No. 825 of 2017 held unambiguously that under Article 235 of the Constitution of India which provides control to the High Courts over subordinate courts, the former cannot terminate the services of a District Judge or impose any punishment of reduction in rank. This power belongs to the Governor being the appointing authority under Article 311(1) of the Constitution. However, the word “control” in the Article gives the High Court power to make inquiries and disciplinary control and recommend imposition of such punishment. No doubt, this is a very progressive, powerful and pragmatic judgment.

To start with, this extremely refreshing, remarkable, robust and rational judgment authored by a single Judge Bench comprising of Justice Sanjay K Agrawal of Chhattisgarh High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is directed against the order dated 6-2-2017 (Annexure P-5) by which the State of Chhattisgarh exercising the power under sub-rule (4) of Rule 9 of the Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (for short, ‘the HJS Rules’) and on the recommendation of the High Court of Chhattisgarh, terminated the services of the petitioner with immediate effect.”

To put things in perspective, the Bench then envisages in para 2 that, “The petitioner was appointed as District Judge (Entry Level) by order dated 30-10-2014 (Annexure P-2) and he was posted as Additional District Judge, Raipur. It is the case of the petitioner that during the continuance of the period of probation, he was served with a memo dated 26-8-2016 by the Registrar (Vigilance) along with memo dated 31-8-2016 issued by the District & Sessions Judge, Raipur with a copy of anonymous complaint making certain allegations against him and two other judicial officers. The petitioner was directed to submit his explanation on the anonymous complaint and on the inspection report of the Registrar (Vigilance) which he submitted on 24-9-2016 vide Annexure P-4, but he was not informed anything further and he was served with the order of termination dated 6-2-2017 in terms of sub-rule (4) of Rule 9 of the HJS Rules. It is the further case of the petitioner that the order of termination is stigmatic / punitive in nature, once the order of termination is stigmatic and punitive, it must have been followed by a full-fledged departmental enquiry which has not been done, as such, the impugned order of termination is liable to be quashed. It is also the case of the petitioner that the inspection report of the Registrar (Vigilance) along with the explanation of the petitioner was submitted to the Standing Committee and the Standing Committee in its meeting dated 24-1-2017 took a decision and resolved to recommend the termination of services of the petitioner under sub-rule (4) of Rule 9 of the HJS Rules. The Standing Committee was not empowered to recommend the termination of the petitioner’s services to the State Government and it was only the Full Court of the High Court which was authorised to recommend for termination of the services of the petitioner in view of the provisions contained in Article 235 of the Constitution of India. It is also the case of the petitioner that the Full Court has never authorised the Standing Committee as contained in terms of Rule 4-C under Chapter I-A of the High Court of Chhattisgarh Rules, 2007 (for short, ‘the Rules of 2007’) read with Rule 9(4) of the HJS Rules to recommend the termination of a probationer. As such, the termination of the petitioner is liable to be quashed on the aforesaid two grounds.”

As it turned out, the Bench then points out in para 3 that, “Return has been filed by respondent No.1 / High Court stating inter alia that the order of termination of the petitioner, who is a probationer, is strictly in accordance with Rule 9(4) of the HJS Rules. It has been pleaded that an anonymous complaint dated 3-12-2015 and another complaint dated 18-1-2016 was made by Shri J.P. Agrawal, Civil Court, Raipur, which were placed before the Portfolio Judge for consideration and pursuant to the order of the then Portfolio Judge, records of criminal cases including bail, criminal appeal and criminal revision decided by the petitioner as Judicial Officer were called for and ultimately, the Registrar (Vigilance) conducted enquiry and submitted report and in the enquiry, no apparent irregularity was found in the sessions case, criminal appeals and criminal revisions for the period from August, 2015 to January, 2016 decided by the petitioner and two other judicial officers, however, certain irregularities were found in respect of four bail applications decided by the petitioner which shows the inability of the petitioner to act as a Judicial officer and his working was found not to be satisfactory. Ultimately, inspection report dated 15-6-2016 submitted by the Registrar (Vigilance) was placed before the Portfolio Judge, Raipur for consideration and it was placed before the Standing Committee and the matter was ultimately considered by the Standing Committee vide resolution dated 16-8-2016 which called for explanation of the petitioner after furnishing the copy of report and in compliance of resolution dated 16-8-2016, memo dated 26-8-2016 was issued to the petitioner seeking his explanation. Ultimately, decision was taken to terminate the services of the petitioner and his services were recommended to be terminated which was accepted by the State Government and the impugned order was came to be passed.”

While continuing in same vein, the Bench then states in para 4 that, “Thereafter, the petitioner filed rejoinder on 15-2-2018 followed by additional rejoinder on 13-7-2018 stating inter alia that recommendation for his termination was not made by the Full Court, but was made by the Standing Committee. The petitioner also filed copy of information obtained with regard to composition of Standing Committee dated 6-2-2017 vide Annexure P-6.”

As we see, the Bench then notes in para 5 that, “On 2-5-2019, additional return was filed by respondent No.1 – High Court stating that the Standing Committee has only made recommendation in contemplation of Chapter I-A of the Rules of 2007 and final decision was taken by the Full Court, and not taken by the Standing Committee as alleged by the petitioner.”

Furthermore, the Bench then specifies in para 6 that, “On 27-1-2022, the petitioner filed documents along with copy of the extract of the Minutes of the Meeting of the Standing Committee dated 24-1-2017 obtained under the Right to information Act to demonstrate that his termination was recommended by the Standing Committee and on the same day, the matter came up for hearing before this Court and time was sought and granted to counsel for respondent No.1 to file additional return, and ultimately, additional return has been filed on behalf of respondent No.1 on 18-2-2022 stating that the petitioner’s matter was placed for consideration before the Standing Committee and the Standing Committee taking into account the fact that the petitioner was on probation, recommended for termination of his services and pursuant to the recommendation of the Standing Committee, the Government of Chhattisgarh, Law and Legislative Affairs Department has passed order dated 6-2-2017 terminating the services of the petitioner. No further pleadings have been filed by the parties.”

Be it noted, the Bench then postulates in para 11 that, “Upon hearing learned counsel for the parties, following two questions posed for consideration: –

1. Whether the Standing Committee constituted by notification dated 4-7-2015 would have competence and jurisdiction to recommend the termination of the petitioner’s services (probationer) to the State Government in terms of sub-rule (4) of Rule 9 of the HJS Rules read with Article 235 of the Constitution of India?

2. Whether the termination of the petitioner’s services from the post of District Judge was punitive / stigmatic warranting holding of full-fledged enquiry against him into the allegations of misconduct?

Answer to Question No.1: –

Quite ostensibly, the Bench then stipulates in para 12 that, “In order to answer the question, it would be appropriate to notice Article 235 of the Constitution of India, which states as under: –

“235. Control over subordinate courts.—The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.””

Of course, the Bench then hastens to add in para 13 that, “A focused glance of the aforesaid provision would show that while the posting and promotion of District Judges shall be in the hands of the Governor acting in consultation with the High Court,—the posting and promotion and granting of leave to officers of the State Judicial Service other than District Judges shall be exclusively in the hands of the High Court, subject, of course, to such appeals as are allowed by the law regulating conditions of the service.”

It cannot be glossed over that the Bench then mentions in para 32 that, “A careful perusal of the additional return filed by the High Court on 18- 2-2022 would show that it is the Standing Committee which has recommended the case of the petitioner for termination to the State Government and on that basis, the State Government passed order dated 6-2-2017 terminating the services of the petitioner.”

It is worth noting that the Bench then holds in para 33 that, “From the aforesaid factual position on record, it is quite vivid that the competent authority to make recommendation for termination of the petitioner’s services on the ground that his services were not satisfactory, was the Full Court of the High Court in view of Article 235 of the Constitution of India and in view of the judgments of the Supreme Court noticed herein-above, however, in the present case, admittedly, the Full Court had not made any recommendation for termination of the petitioner’s services and it is the Standing Committee that has made such recommendation for dismissal of his services which the Standing Committee was neither empowered nor authorised in terms of notification dated 4-7-2015 to make recommendation to terminate the services of the petitioner. Since the power to make recommendation to the State Government to terminate the services of the petitioner is vested with the Full Court of the High Court by virtue of Article 235 of the Constitution of India, the Full Court would only be the competent authority to exercise such power, but, in the instant case, no such recommendation has been made by the Full Court of the High Court to terminate the services of the petitioner in terms of Rule 9(4) of the HJS Rules. Since the High Court has not made any recommendation in terms of Rule 9(4) of the HJS R les to terminate the petitioner’s services, the order of termination passed by respondent No.2 on the basis of recommendation of the Standing Committee is ipso facto unconstitutional, non est and without authority of law, and deserves to be quashed.”

Answer to question No.2: –

It merits mentioning that the Bench then expounds in para 34 that, “Since this Court has already held herein-above while answering question No.1 that the order of termination passed by respondent No.2 State Government is ipso facto unconstitutional, non est and without authority of law, the question as to whether the impugned order terminating the services of the petitioner is punitive or stigmatic in nature, in my considered opinion need not be gone into as the impugned order was passed on the basis of recommendation made by incompetent authority.”

While citing a very recent and relevant case law, the Bench then states in para 35 that, “Very recently, the Supreme Court in the matter of Sunny Abraham v. Union of India and another 2021 SCC OnLine SC 1284 at para 11 while deciding that any decision not having the authority of law would be non-est explained the doctrine of non-est in the following words: –

“… The term non-est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid.””

Quite palpably, the Bench then maintained in para 36 that, “Since the impugned order of termination has already been held to be unconstitutional, non-est and without authority of law, this question though placed for consideration, is not being gone into as held hereinabove and question No.2 is answered accordingly.”

Most significantly, the Bench then holds in para 37 that, “As a fallout and consequence of the aforesaid discussion, question No.1 is answered in favour of the petitioner and question No.2 is answered in the terms stated herein-above. In view of the above stated analysis, impugned order dated 6-2-2017 (Annexure P-5) terminating the petitioner’s services is liable to be and is hereby quashed. However, this will not bar respondent No.1 to proceed in accordance with law. The petitioner is directed to be reinstated in service forthwith along with all consequential service benefits except back-wages. The question of back-wages will be considered by the competent authority. However, the petitioner may make representation to the competent authority within 30 days from today claiming back-wages which shall be considered by the competent authority within next 60 days in accordance with law keeping in view the relevant rules and regulations.”

Finally, the Bench then concludes by holding in para 38 that, “Accordingly, the writ petition is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).”

To sum up, the Chhattisgarh High Court has been most forthright and firm in holding that High Court can’t terminate service of District Judge or impose any punishment of reduction in rank under Article 235 of Constitution. No denying it! The process which the High Court follows in such cases has already been discussed hereinabove.

To put things in perspective, the Bench then envisages in para 2 that, “The petitioner was appointed as District Judge (Entry Level) by order dated 30-10-2014 (Annexure P-2) and he was posted as Additional District Judge, Raipur. It is the case of the petitioner that during the continuance of the period of probation, he was served with a memo dated 26-8-2016 by the Registrar (Vigilance) along with memo dated 31-8-2016 issued by the District & Sessions Judge, Raipur with a copy of anonymous complaint making certain allegations against him and two other judicial officers.

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Policy & Politics

My brush with the PMO: Part I

Anil Swarup

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We were all happy when National Democratic Alliance (NDA) rode to power. The United Progressive Alliance (UPA) had really messed it. I was personally thrilled when I got to know that Mr Nripendra Mishra would be the Principal Secretary to the Prime Minister and would head the Prime Minister’s Office (PMO). I had worked with him as Director, Information and Public Relations when he was Secretary to Kalyan Singh. Chief Minister of the largest State, Uttar Pradesh during 1991-92. Mr Mishra was sharp with grasp and ability to get to the bottom of most complex issues (there were indeed many of them). It was a period of enormous learning to me. He was always available to guide. Much later, he was instrumental in pushing me to come to Delhi on deputation despite my reluctance. It transformed my career path.

When Mr Mishra took over as Principal Secretary in PMO, I was still looking after the Project Monitoring Group (PMG) created by the previous government to fast-track projects. Though UPA itself was floundering, the PMG seemed to be doing well. In the 15 months of its institution, it had managed to facilitate clearance worth Rs 5 lakh crore. Both the Apex Industry organizations, FICCI and CII had appreciated its working in their letters to the previous PM. When I went to meet Mr Mishra for the first time at the PMO, I was extremely surprised to find that he appeared very distant. Very unlike the Mr Mishra I knew, he continued to be engaged with is papers when he spoke to me. He had doubts about everything that was being done at the PMG, even questioning the outcomes. I was perplexed and the conversation did not last very long. It was much later that he recognized the role played by the PMG in fast tracking of projects and considering its utility, the PMG was shifted from the Cabinet Secretariat to the PMO.

I wasn’t aware that I was being considered for the post of Coal Secretary to clear the mess in the sector. One of my batchmates approached me to convey that I should meet the Coal Minister. As a matter principle, I didn’t meet the Minister. One day even the Mr Mishra asked me why I wasn’t meeting the Coal Minister. I politely told him that I had not met any Minister before being posted (this included my posting as Secretary to Mr Kalyan Singh during his second tenure as Chief Minister) and I had no intention on “calling on” the Minister before being posted. I was none the less posted as Officer on Special Duty (OSD) in the rank of Secretary on the 16th of October, 2014, a fortnight before my predecessor superannuated.

***

The initial forays at the PMO weren’t very smooth

The focus of the government was the auction of coal blocks that had been cancelled by the Supreme Court. There was no precedent available anywhere in the world and the whole process had to be developed from scratch. The process being evolved for the auction of coal blocks was complicated. Not many were convinced that it would withstand scrutiny and the expectations associated with it. It was too sensitive a matter to be left entirely to the officials of the Coal Ministry.

Mr Vinod Rai had been responsible for pointing out the irregularities in the allocation of coal blocks in his role as Comptroller and Auditor General. It was suggested that a committee be constituted under his Chairmanship to oversee the coal block auctions in the hope that he would give his judicious ‘rai’(advice) to the Coal Ministry in the conduct of coal block auctions. Ironically, perhaps aware of the risks entailed in such a sensitive sector, he was not keen to give any decision on his own!

The atmosphere was charged. Discussions were held in the room of the Mr Mishra’s room at the PMO. It was his suggestion that there should be a committee to oversee coal block auctions. I was taken aback as I deemed this as a lack of confidence in me. Hence, I did something that was not normally done in the context of a very powerful PMO. I opposed it.

I was not willing to have any such committee breathing down my neck. I was clear that the task of carrying out the auction was that of the Coal Ministry. Therefore, we were prepared to take all the responsibility associated with it. A heated debate ensued as I continued to resist. Normally no one argued with the PMO. The PMO was the final arbiter in all sensitive issues. Everyone was heard but the final writ came from this office. In this case, it was the Principal Secretary himself. However, even at the risk of being considered too impertinent, I stuck to my guns. I was clear that if I was to be in charge, I would lead the way. I was not opposed to seeking advice or consulting those around. But there was no way in which a formal consultative, supervisory or advisory committee was acceptable to me.

Having worked with me in the past, he perhaps knew that I would not relent easily. After a lot of fireworks, bordering on unpleasantness, the idea was shelved. We were spared the structured council of the ‘Rai Sahebs’ though we continued to benefit from informal advice right through the process of auctions.

In retrospect, it turned out to be a masterstroke as we had a lot of freedom in evolving the process without someone telling us to go strictly by the rule book. The process required that flexibility. There were a number of meetings at the PMO to assess how the auction process was going. We did arrive at a broad agreement on the process. The problem was that in the absence of any precedence, the process was always evolving. It was difficult to keep the PMO posted all the time. There were decisions taken at the Ministry itself. However, had the auctions been a failure or had something gone wrong, I would have been sacked. It was a crucial call that I had to take on the spur of the moment. I had taken a huge risk.

***

The Coal Block Auctions were a resounding success. All the newspaper sang praises about the transparent manner in which the entire exercise had been accomplished. Extensive use of technology also came in for praise. When the call from Mr Mishra came, I had expected a few words of praise from him as well. He was, however, upset. His complaint was that the PMO was not kept informed. I tried to explain to him that a note had been sent to him which he may not have seen do far. This conversation was late in the evening. Hence, I sent across yet another note to Mr Mishra, enclosing copy of the note that I had sent to him earlier. He immediately called up to compliment me and the entire team for the wonderful work we had done.

Apart from Mr Nripendra Mishra there was another Mishra, Mr P K Mishra in the PMO. As Additional Principal Secretary he was tasked to handle the human resource matters. As allocation and posting of all the officers in the rank of Joint Secretary and above required clearance of the PM in his capacity as the Chairman of Appointment Committee of Cabinet, I witnessed that Mr P K Mishra’s room was full of files. However, despite the pressure of work, I always found him smiling and ready to lend his ears. During the first year as Coal Secretary, I visited him on a number of occasions to discuss and seek assistance on personnel matters. He was always forthcoming. On a few occasions I even made requests to Mr Nriprendra Mishra for a few officers to be posted in the Ministry little realising that he had virtually no role to play in such matters. I discovered this incidentally when on when one occasion while sitting in his room. He was browsing through the papers when he came across an order regarding transfer of a Secretary in a crucial Department. The expression on his face revealed it all. He wasn’t aware that the concerned Secretary had been shifted out.

{Excerpts from “No More a Civil Servant”}

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Policy & Politics

But for gold, India would have become Sri Lanka

India had also faced a Sri Lanka-like crisis three decades back, but the leadership saved the country.

Vijay Darda

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Introduction

During the rule of demon king Ravana, his palace in Sri Lanka was made of gold. But today there is not an ounce of gold in Sri Lanka’s treasury to save it from bankruptcy! But quite amazingly, when India was on the verge of bankruptcy some three decades back, we saved ourselves by selling 20 tonnes of gold, and subsequent rapid economic recovery helped bolster the economy. Very few people of the present generation of the country would be aware of this story. Before examining the situation in Sri Lanka and its causes, it is pertinent to briefly learn about the then situation!

The Gulf War broke out in 1990 and the price of petroleum products skyrocketed in the international market. India’s petroleum imports suddenly increased from $2 billion to $5.7 billion in 1990-91. During this period, political instability was at its peak. In 1989, Rajiv Gandhi kept the Congress away from forming a coalition government.

Vishwanath Pratap Singh became the PM but he too had to resign in 1990. Rajiv Gandhi was assassinated in May 1991. The situation turned so bad that the NRIs started withdrawing their money. India’s foreign exchange reserves went down to less than one billion dollars. There was so little money that only essential imports could be paid for and that too only for 20 days. There was no money to do business with the world! The foreign debt on India had shot up to $72 billion. There were only two countries in the world above India in terms of debt – Brazil and Mexico.

India would have gone bankrupt had it not paid the debt. Chandrashekhar was the Prime Minister at that time. He got India out of a balance of payment crisis by selling 20 tonnes of gold, regardless of domestic politics and criticism. Meanwhile, the IMF gave a loan of $1.27 billion, but improving the situation was a big challenge. However, in June 1991 P V Narasimha Rao became the Prime Minister and he brought about a lot of changes in India’s economy through the then finance minister Manmohan Singh. Imports were curtailed, government spending was drastically cut, and the rupee was devalued by up to 20 per cent. Banks increased interest rates. This is how India survived!

Had India’s political leadership and administrative machinery not shown alertness, our story would not have been any different from Sri Lanka. The political leadership is largely to blame for the condition of Sri Lanka today. Until last month, the all-powerful Rajapaksa family dominated the island nation. The unbridled nepotism ensured the presidency for Gotabaya Rajapaksa. Mahinda Rajapaksa was the Prime Minister, Chamal Rajapaksa was the minister for irrigation, Basil Rajapaksa was the finance minister and Namal Rajapaksa was the sports minister. Thus, 75 per cent of the budget of Sri Lanka was grabbed by the Rajapaksa family. The Rajapaksa family ran Sri Lanka as their own private company. The children of the Rajapaksa family were roaming around in the world’s most expensive and customised luxurious cars. They behaved as if the country’s money was their own money. The Rajapaksa family ran the country according to their whims and fancy. It is not known why the use of fertilizers in farming was banned, leading to a sharp decline in yields. The export of tea and rice, which were prime sources of foreign exchange for Sri Lanka, declined drastically.

Tourism accounts for about 20 per cent of Sri Lanka’s revenue. Sri Lanka’s finances were already in the doldrums in the aftermath of the years of the civil war resulting from the LTTE insurgency. The outbreak of the coronavirus pandemic further worsened the situation. In the meantime, Sri Lanka went on seeking loans left, right and centre. When China dangled the carrot of Hambantota Port, the experts had cautioned that Sri Lanka does not need it but eventually Sri Lanka walked into China’s debt trap. Now the rumour mills are churning out the stories of how the Chinese financiers benefitted the Rajapaksa family for this. I don’t know how much substance these stories hold, but one thing is clear that Sri Lanka unnecessarily took a loan of billions of dollars from China. What is the condition today? China has got Hambantota Port on a lease for 99 years. Actually, the rulers of countries like Sri Lanka and Pakistan run the country like a private limited company. They use the public money to feather their own nests but we are proud that neither any party nor any prime minister has ever done this in our country. For us, our country is supreme.

The burden of foreign debt on Sri Lanka has now exceeded $50 billion. The Sri Lankan government has clearly admitted that it is not in a position to pay even the interest on the loans. It simply means that Sri Lanka has gone bankrupt. The value of one dollar has crossed 360 Sri Lankan rupees. Traditionally, it is believed that any country should have at least 7 months’ worth of foreign exchange reserves to import, but Sri Lanka’s foreign exchange reserves are not enough to pay for imports even for a few days. The situation is so bad that there is a complete power outage throughout the island nation. Petrol and gas are being supplied under the protection of the army. Essential goods are missing from the market and the poor have nothing to eat. There is no money for paper and hence newspapers have stopped publishing. Sri Lanka is burning in the fire of discontent. Meanwhile, the post of prime minister has been taken over by Ranil Wickremesinghe. He is considered very close to India. India has helped Sri Lanka a lot even during Rajapaksa’s reign, but how much can any other country help? The health of Sri Lanka will have to be restored by its own political leadership. Let us all pray for Sri Lanka!

The woeful plight of Sri Lanka is an eye-opener for the world that it is very risky to fall into the debt trap. An old saying in our Indian families says, stretch your legs no bigger than the coverlet. And there is another saying that there must be some money in hand for rainy days. This is the proverbial lesson for every family and also for the political setup and government! No one can say for sure when and where any calamity will strike!

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

The crisis which the island nation of Sri Lanka is facing can be described as an extremely dreadful time for any country. Three decades back, India was on the verge of facing a similar situation, but our leaders took a bold and visionary decision to save the country by selling gold. It is the Sri Lankan leadership which has pushed the people on the brink of starvation.

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Policy & Politics

Domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there: SC

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While upholding the right of a woman to reside in a ‘shared household’ even if she has not actually lived there, the Supreme Court as recently as on May 12, 2022 in a learned, laudable, landmark and latest judgment titled Prabha Tyagi vs Kamlesh Devi in Criminal Appeal No. 511 of 2022 in exercise of its criminal appellate jurisdiction held that a victim of domestic violence can enforce her right to reside in a shared household, irrespective of whether she actually lived in the shared household. The Bench of Apex Court comprising of Justice MR Shah and Justice BV Nagarathna held in no uncertain terms that, “Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the DV Act. Very rightly so!

To start with, this learned judgment authored by Justice BV Nagarathna for a Bench of Apex Court comprising of Justice MR Shah and herself sets the ball rolling by first and foremost putting forth in para 1 that, “The aggrieved person, being the appellant herein, who had filed Miscellaneous Case No. 78 of 2007 on the file of the Court of Special Judicial Magistrate- I, Dehradun, has assailed judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand at Nainital, in Criminal Revision No. 186 of 2014, by which the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011 setting aside the order passed by the Special Judicial Magistrate-I, was sustained.”

While dealing with the factual background, the Bench then lays bare in para 3 that, “According to the aggrieved person, her marriage with Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on 18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and rituals and in connection with the marriage, the family members of the aggrieved person had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. For the period immediately following the wedding, the aggrieved person was residing at the ancestral home of the respondents along with her mother-in-law-respondent no.1, two brothers-in-law, wife of her husband’s elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husband and the respondents in village Jhabreda. That Kuldeep Tyagi, husband of the aggrieved person died on 15th July, 2005 in a car accident and after the Terhanvi ceremony of her husband, the aggrieved person was constrained to reside initially at Delhi, at her father’s house. That immediately prior to the death of her husband, the aggrieved person had conceived a child.”

While continuing in the same vein, the Bench then states in para 4 that, “That on 30th March, 2006 the aggrieved person gave birth to a daughter and owing to the misbehavior and torture meted out to her by her matrimonial family after her husband’s death, she moved to Dehradun, Uttarakhand with her daughter, where she began working as a teacher to support herself and her child. That the Stridhana given to her at the time of her wedding was never allowed to be enjoyed by her and even following her exit from her matrimonial home, the Stridhana was being used by her in-laws, respondent nos. 1 to 6. That the aggrieved person had sent a legal notice dated 22nd November, 2006, requesting them to return the articles of Stridhana, however, there was no response to the same.”

Furthermore, the Bench then discloses in para 5 that, “That the father of the aggrieved person had gifted her a Maruti (Alto) car, at the time of her wedding and the same was registered in the name of her deceased husband. Owing to the accident that her husband had met with, resulting in his death, the said car had also been damaged. That the aggrieved person’s mother-in-law had submitted an application before the insurance company, National Insurance Company which was processing the claim for damage caused to the car, stating therein that she was the mother of the deceased and was the only legal heir of the deceased and therefore any compensation may be made in her favour.”

Truth be told, the Bench then mentions in para 6 that, “That there exists a land in village Jhabreda to which the deceased husband of the aggrieved person had right and title. That respondent no. 1- mother-in-law, on being instigated by the other respondents objected to the recording of the aggrieved persons’ name in the revenue records of the said property. Respondent no. 1 objected by stating that the child borne by aggrieved person was not Kuldeep Tyagi’s daughter. Owing to such objection, the Court of Tehsildar passed an order of status quo with respect to the said property.”

It cannot be lost sight of that the Bench then observes in para 7 that, “That the respondents, on several occasions threatened the aggrieved person that she would face dire consequences if she ever attempted to claim any right over her husband’s property. That the respondents, having no sympathy towards the aggrieved person who had, while pregnant, lost her husband in a fatal accident, tortured her mentally by denying that her child was the daughter of Kuldeep Tyagi.”

As it turned out, the Bench then points out in para 8 that, “With the aforesaid averments, the aggrieved person approached the Court of the Special Judicial Magistrate under Section 12 and sought protection orders, residence orders and compensation orders to be passed under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers were also made for monetary reliefs under Section 22 of the D.V. Act.”

Briefly stated, the Bench then states in para 14 that, “Aggrieved by the judgment of the First Appellate Court, the aggrieved person preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained. The aggrieved appellant has approached this Court challenging the judgments of the First Appellate Court and the High Court.”

Notably, the Bench then observes in para 51 that, “In the instant case, when the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. Hence, in our view, the judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not lay down the correct law and are hereby overruled while we affirm all other judgments referred to supra which are in consonance with the line of interpretation made above.”

Most significantly, the Bench then while clearing the air on the questions raised holds in para 52 that, “In view of the above discussion, the three questions raised in this appeal are answered as under:

i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”

It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?”

It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”

It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.”

Most remarkably, the Bench then directs in para 53 that, “Consequently, the judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand in Criminal Revision No. 186 of 2014 as well as the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are set aside and the order passed by the Special Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007, Dehradun is affirmed.”

On a concluding note, the Bench then remarks in the final para 56 that, “Before parting with this case, we express our appreciation to the valuable services rendered by Shri Gaurav Agarwal, learned amicus curiae, who has painstakingly researched all the relevant judgments on the questions raised in this case arising from various High Courts and has made his submission schematically with particular reference to the facts of the case and all relevant provisions of the D.V. Act.”

In sum, the Apex Court has made the whole picture crystal clear in this notable judgment by the Apex Court. So it is now crystal clear that a domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there. No denying!

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Policy & Politics

POLICE ATROCITIES: GUJARAT HC URGES STATE TO INSTALL CCTV CAMERAS AND FOLLOW D.K. BASU GUIDELINES

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While according paramount importance to the human rights of prisoners and so also taking a serious note of the increasing incidents of human right violations of prisoners, the Gujarat High Court has in a recent, remarkable, robust, refreshing and rational judgment titled Vasaya Yunusali Alarakhabhai Vs State of Gujarat in R/Special Criminal Application No. 1615 of 2022 and delivered as recently as on May 5, 2022 has recommended that the State government take initiatives to implement the guidelines issued by the Apex Court in the landmark case of DK Basu v. State of West Bengal and to install CCTV cameras with night vision and maintain their records for 6 months to deal with police atrocities in the region. A Bench comprising of Justice Sonia Gokani and Justice Mauna Bhatt was hearing a habeas corpus petition involving an inter-religious couple when it came down heavily on the Gujarat police and directed the concerned authorities to intimate all police stations about the guidelines issued in the Paramvir Singh Saini case [Paramvir Singh Saini vs Baljit Singh and others (2021) 1 SCC 184]. The Bench said that, “We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible”.

To start with, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Sonia Gokani for a Bench of Gujarat High Court comprising of herself and Hon’ble Mrs Justice Mauna M Bhatt first and foremost puts forth in para 1 that, “This Court on 08.02.2022 in this petition under Article 226 of the Constitution of India issued the notice by passing the following order:

“1. The petitioner is a father of one of the persons (corpus) who is alleged to have been illegally detained by the respondent no.2. The prayers sought for in this petition is as follows: –

“(A) Your Lordships may kindly be pleased to admit and allow the present petition;

(B) Your Lordships may kindly be pleased to issue a writ of habeas Corpus and / or any other appropriate writ, order or direction directing the Respondent No. 2 to produce the Corpuses namely ‘Vasaya Nadeem Yunusali’ and girl namely ‘Kukreja Jayaben Hareshkumar’ before this Honorable Court, the custody of the Corpuses be handed over to the Petitioner in the interest oat her parental home and moreover, it was an absolutely illegal act on the part of the respondent no.2.

(C) Pending admission, hearing and final disposal of this Petition, Your Lordships may kindly be pleased to direct the Respondent No. 2 to produce Corpus namely namely ‘Vasaya Nadeem Yunusali’ and girl namely ‘Kukreja Jayaben Hareshkumar’ before this Honorable Court in the interest of justice;

(D) Your Lordship may kindly be pleased to grant such other and further relief(s) as may deed just and proper in the facts and circumstances of the case.”

2. It appears that both, the son of the petitioner and the girl – Jaya had intended to marry each other. This being interreligious/interfaith marriage, the notice of intended marriage was issued under Section 5 addressed to the marriage officer for Bhavnagar District on 14.12.2021. Before the same could be actually performed, on completion of 30 days period, it is alleged that they both were illegally taken away by the respondent no.2. Some of the family members had been beaten up badly. The photographs of which are forming part of the petition. The medical report dated 18.12.2021 also reflects the names of those persons who have allegedly beaten up the family members.

3. Learned advocate Ms. Laksha Bhavnani appearing with learned advocate Ms. Setu Joshi for the petitioner has urged that once the respondent came to know of this petition of habeas corpus, they have chosen to release both the corpora. However, the marriage has not taken place as the girl is sent at her parental home and moreover, it was an absolutely illegal act on the part of the respondent no.2.

4. Issue Notice returnable on 11.02.2022. Learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent authorities.

5. Learned APP shall gather the details and shall file an affidavit of the respondent no.2 which shall be also vetted by the Superintendent of Police, Bhavnagar.

6. The girl has been allegedly forcibly sent to her residence. The Superintendent of Police, Bhavnagar shall ensure her production before this Court through video conference from the District Legal Services Authority, Bhavnagar in presence of the Chair Person, District Legal Services Authority, Bhavnagar at 1:30 p.m. on 11.02.2022. The Superintendent of Police, Bhavnagar also shall remain present on that day.””

Quite significantly, the Bench observes in para 7 that, “The guidelines of 09.07.2018 issued from the Office of Director General and Inspector General of Police gives the detailed modality of working of the RMS as in all police stations the CCTV camera system are installed for preventing the incident of custodial violence, non registration of First Information Report as also the violation of human rights etc. following the decision of the Apex Court rendered in case of D.K.Basu vs. State of West Bengal & others, reported in (2015) 8 SCC 744 and thereafter reiterated in Criminal Miscellaneous Petition No.16086 of 1997 r/w Criminal Miscellaneous Petition No. 19694 of 2010 on 02.09.2015. For enhancing the quality of services rendered by the police and for the use of technology these guidelines have been formulated.

7.1 It mandates maintaining of Dead Stock Register in all offices of Superintendent of Police with the District level. The Superintendent of Police or the Police Commissioner is expected to monitor at least once in a week through the RMS, the CCTV Camera System and the video footage. All the gadgets of their RMS shall need to be maintained by a Wireless Sub Inspector after giving him the training in this respect. It also mandates the preservation of the video footage of CCTV camera for 30 days’ period. There are many complaints for the use and maintenance of this CCTV Camera System and it has been mandated that the strictest actions be taken if some police personnel or the officers continue to do the objectionable activities.

7.2 The detailed guidelines further says as to in what manner the misbehavior or the unpalatable actions with the citizens should be checked.”

Be it noted, the Bench then envisages in para 8 that, “This very clearly gives the indications as to how for the Gujarat Police office of DG & IG has been vigilantly directing every police station to follow the use and maintenance of the CCTV footage. It has also further detailed the manner in which the Head of the District to monitor the CCTV footage every week at least in one case and thereafter, to take necessary actions as directed in the very guidelines. However, from the affidavit which has been filed by the Secretary, Home Department, it is quite clear that there are various levels of redressing the different kind of grievances for the complaints, but there is no specific guideline issued to intimate the District Police Head when there are complaints regarding the police harassment in the District. There is no specific direction for the senior police officer or the Superintendent of Police to be intimated of such harassment. Every police station is equipped with this technology and the advancement of this technology is for the succor of the citizen.”

Most remarkably, the Bench then enunciates in para 9 that, “We need to also make a reference of the decision of the Apex Court rendered in case of PARAMVIR SINGH SAINI VS. BALJIT SINGH AND OTHERS, reported in (2021) 1 SCC 184 where the question was of installation of CCTV cameras in police stations and credible recording of evidence and safeguarding the human rights inside the police stations. The Apex Court vide its order dated 03.04.2018 directed that the Central Oversight Body (referred to as COB) to be set up by the Ministry of Home Affairs to implement the plan of action with respect to the use of videograph in the crime scene during the investigation.

9.1 The Apex Court also referred to the decision issued in case of D.K.Basu (supra) to hold that there was a need for further directions that in every State an oversight mechanism be created whereby the independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. The COB also may issue the appropriate direction from time to time so as to ensure that use of videography becomes a reality in a phased manner. It had also given the constitution of the District Level Oversight Committee and eventually enlisted the duties and the responsibilities for working maintenance and recording of CCTV.

9.2 Apt would be to refer to the guidelines and the mandate given by the Apex Court in this regard.

“14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to 7 immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.

15. The Director General/Inspector General of Police of each State and Union Territory should issue directions to the person in charge of a Police Station to entrust the SHO of the concerned Police Station with the responsibility of assessing the working condition of the CCTV cameras installed in the police station and also to take corrective action to restore the functioning of all non-functional CCTV cameras. The SHO should also be made responsible for CCTV data maintenance, backup of data, fault rectification etc.

16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; 8 main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.

17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in 9 any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.

18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.

19. The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof. In addition, the Union of India is also 10 directed to install CCTV cameras and recording equipment in the offices of:

(i) Central Bureau of Investigation (CBI)

(ii) National Investigation Agency (NIA)

(iii) Enforcement Directorate (ED)

(iv) Narcotics Control Bureau (NCB)

(v) Department of Revenue Intelligence (DRI)

(vi) Serious Fraud Investigation Office (SFIO)

(vii) Any other agency which carries out interrogations and has the power of arrest.

As most of these agencies carry out interrogation in their office(s), CCTVs shall be compulsorily installed in all offices where such interrogation and holding of accused takes place in the same manner as it would in a police station. The COB shall perform the same function as the SLOC for the offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located.

20. The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/ offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

21. Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today’s Order. This is to be done within a period of six weeks from today.

22. We record our gratitude to Shri Siddhartha Dave, learned Amicus Curiae, for rendering his services to this Court.”

9.3 This dictum insists on the CCTV system to be installed with night vision and to consist of audio and video footage both. The Apex Court has also asked for the requirement of the CCTV footage to be preserved for a period of six months and a firm action plan to be submitted within six weeks.”

For clarity, the Bench then adds in para 10 that, “This in addition to what has been already directed by way of guidelines in the year 2018 by the office of Director General and Inspector General of Police will take care of the maintenance of the CCTV cameras.”

Simply put, the Bench then states in para 11 that, “According to the learned APP, Ms.Jhaveri, for fulfilling the directions of the Apex Court, the mechanism is already underway. She has taken the instructions to ensure this Court that pursuant to this mandate and the guidelines issued by the Apex Court, the process is on and it is soon to be completed. Therefore, no further directions in respect of this will be additionally needed till the new system is purchased and installed.”

In addition, the Bench clarifies in para 12 that, “Let the other guidelines which have been directed by the Apex Court, if are not otherwise presently hampered by the technological limitations be followed. All police stations should be intimated the guidelines issued in case of PARAMVIR SINGH SAINI (supra).”

Without mincing any words, the Bench then directs in para 13 that, “According to us, any incident of the alleged atrocities or involvement of the police officers in violation of mandatory guidelines shall at least be intimated to the Head of the District, i.e. to the Superintendent of Police or the Police Commissioner, as the case may be. Let a specific guidelines in that respect also be initiated. It is one thing for the Superintendent of Police himself to find out from the CCTV camera footage the misbehavior or the misconduct and it is another thing when he, as the District Head, is made aware of such complaints and registered. Let that be worked out by the Home Department.”

What’s more, the Bench then observes in para 14 that, “We have noticed that, in the instant case, the matter is pending before the District Court and therefore, we chose not to presently intervene. After once the District Court finalise the matter, it will be for the petitioner to also take an appropriate remedy in respect of his personal complaint. None of these observations or the limitation of the technology will in any manner hamper his right to approach the appropriate authorities.”

Most commendably, the Bench then rightly holds in para 15 that, “We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible.”

Finally, the Bench then concludes by holding in para 16 that, “Present petition stands disposed of accordingly.”

No doubt, what the Gujarat High Court has directed so very commendably in this notable judgment must be implemented forthwith by the State. CCTV cameras must be installed in police stations and so also all other steps must be taken as we have already discussed herein aforesaid. No denying!

Sanjeev Sirohi, Advocate

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Policy & Politics

Group of Companies Doctrine set to undergo the test of a larger bench

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I. INTRODUCTION

The genesis of arbitration being chosen as the preferred mode of dispute resolution mechanism lies on the premise of mutual consent given by the parties under the agreement or contract, as the case may be. The same underlying principle is also surmised by Section 7 of the Arbitration and Conciliation 1996 (“A&C Act 1996”).

A significant change in the interpretation of Section 7 of the A&C Act 1996 evolved with the courts in India enlarging the scope by taking into consideration the intention of the parties, role of parties and its affiliates as per the Group of Companies doctrine etc. The Group of Companies doctrine aims to encompass, under certain conditions, the arbitration agreement signed only by one or some of the companies of a group to the non-signatory companies of the same group. This doctrine is inherently linked to piercing or lifting the corporate veil doctrine. By way of this article, we aim to understand the Group of Companies doctrine and its evolution by the Indian courts.

II. GROUP OF COMPANIES DOCTRINE

The doctrine of “Group of Companies” had its origins in the 1970s from French arbitration practice. The Group of Companies doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactions.

The Group of Companies doctrine was first invoked in 1984 by the International Chamber of Commerce Tribunal in the matter of Dow Chemical v. Isover Saint Gobain, 1984 Rev Arb 137: (1983) 110 JDI 899 wherein the Court duly held that in accordance with the common intention of all the companies involved, Dow Chemical France and Dow Chemical Company (USA) were found to be parties to the arbitration agreements although they did not actually sign them. The arbitration clause was applicable to them as well due to the common intention. It is pertinent to note herein that the Court duly held that arbitration clauses were applicable to Dow Chemical Company (USA) as they effectively and individually participated in the contract’s conclusion, their performance, and their termination.

Though the scope of an arbitration agreement is limited to the parties who entered into it and those claiming under or through them, the courts under the English law have, in certain cases, also applied the Group of Companies doctrine. This doctrine has developed in the international context, whereby an arbitration agreement entered into by a company, being one within a group of companies, can bind its non-signatory affiliates or sister or parent concerns, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non-signatory affiliates. This theory has been applied in a number of arbitrations so as to justify a tribunal taking jurisdiction over a party who is not a signatory to the contract containing the arbitration agreement.

The focus point while applying Group of Companies doctrine comes into play in the form of extending arbitration proceedings to a non-signatory to the arbitration agreement which is beyond the rigours of Section 7 of the A&C Act 1996. A valid arbitration agreement is the essential element and the basis of the arbitration proceedings. As a consequence of the same, generally under normal circumstances, only those parties who have signed and are a part of the arbitration agreement may take part in the arbitration proceedings and would be bound by the relevant award passed by the arbitral tribunal. The difficulty arises where the arbitration agreement is sought to be extended to a non-signatory to the arbitration agreement based on the mutual intention of such non-signatory to be bound by such agreement.

The real inference of the Group of Companies doctrine in the present commercial world is considerable, given the swelling complexity of commercial contracts. For example, it is rather usual to see multiple entities within a group company be involved in the negotiation, performance, or termination of a contract, even if they have not signed the said contract. The entity that formally signs and executes an agreement may also not essentially be the entity that performs it for various business organizational reasons. The performance of an agreement by a subsidiary may be funded by the holding and/ or parent company, or funds may flow between group companies to facilitate performance under the agreement. In these circumstances, and especially in relation to such complex commercial transactions where such entities may have formulated their deals to limit or separate liability among various group members, the Group of Companies doctrine may provide a legal basis for non-signatories to be compelled to arbitrate.

The interesting bit about the Group of Companies doctrine is lifting of or piercing the corporate veil of a company to identify where the true control of the company lies and to ascertain whether the arbitration agreement was intended to bind both the signatory and non-signatory affiliates. The parties’ intentions are typically ascertained through their conduct, which includes a consideration of whether the non-signatory participated in the negotiation, performance, or termination of the contract.

III. INDIAN COURT AND THE EVOLUTION OF GROUP OF COMPANIES DOCTRINE

The Doctrine took its time to be recognized in the Indian Jurisprudence. In the early 2000s, Indians courts have taken an orthodox view. For instance, in the case of Pramod C Patel v. Lalit Constructions and Anr, 2002 SCC OnLine Bom 546, the High Court of Bombay explicitly noted that the arbitration agreement needs to be signed by both the parties. Later, even the High Court of Delhi in K.K. Modi Investment and Financial Services Pvt. Ltd v. Apollo International Inc. & Ors, 2009 SCC OnLine Del 1595 reiterated that there should be a contract between the parties and if there is no contract between petitioner and respondent, the arbitration clause between them cannot be inferred.

The same view was taken by the Hon’ble Supreme Court in 2010 in the matter of Indowind Energy Limited v. Wescare (I) Limited and Another, (2010) 5 SCC 306. The Hon’ble Supreme Court held that it is fundamental that a provision for arbitration to constitute an arbitration agreement for the purpose of Section 7 should satisfy two conditions: (i) it should be between the parties to the dispute; and (ii) it should relate to or be applicable to the dispute. Further, each company being separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity or lead to an inference that one company will be bound by the acts of the other.

Eventually, it was in the year 2012, when the Apex Court for the first time adopted the Group of Companies doctrine in the matter of Chloro Controls (I) P. Ltd. v. Severn Trent Water Purification Inc. & Ors, (2013) 1 SCC 641 wherein the Court held that a non-signatory forming part of the same corporate group as a signatory could be made a party to the arbitration, where it is clear from circumstances surrounding the transaction that the ‘mutually held intent’ was to bind the signatory as well as the non-signatory to the arbitration agreement. The doctrine could be applied to join non-signatories based on: (i) direct relationship between the signatories and the non-signatories; (ii) direct commonality of the subject matter; (iii) the composite nature of the transaction between the parties; and (iv) whether the ends of justice would be served by referring the disputes to arbitration. Pertinently, the Court’s concluding remark on the doctrine was “An arbitration agreement entered into by a company within a group of companies can bind its non-signatory affiliates, if the circumstances demonstrate that the mutual intention of the parties was to bind both the signatory as well as the non-signatory parties”. After the passing of the judgment in 2013 by the Apex Court and the recognition of Group of Companies doctrine in the Indian diaspora, the doctrine has been widely applied in numerous cases and its scope has been diluted or enlarged on a case of case basis.

In the case of Cheran Properties Limited v. Kasturi and Sons Limited and Others, (2018) 16 SCC 413, the Hon’ble Court held that the doctrine is intended to facilitate the fulfilment of a mutually held intent between the parties, of arbitrating disputes involving signatory and non-signatory parties. The effort is to find the true essence of the business arrangement and to unravel from the commercial and business arrangement the real intent of the parties whether to bind a non-signatory to an arbitration clause or not. Even, in Ameet Lalchand Shah and Ors. v. Rishabh Enterprises and Anr., (2018) 15 SCC 678, the Hon’ble Supreme Court applied the doctrine to join non-signatories as parties in a composite transaction even though the participants in the transaction were not part of the same corporate group. The emphasis was on the interlinked agreements for a single commercial project.

In the matter of MTNL V. Canara Bank and Others, (2020) 12 SCC 767 the apex Court reiterated that conduct of parties evidencing a clear intention of the parties to bind both the signatories and non-signatories or where there is tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality are pre-conditions for invoking the Doctrine. Further, in the matter of Reckitt Benckiser (India) Private Limited v. Reynders Label Printing India Private Limited and Another, (2019) 7 SCC 62 the Supreme Court reiterated the above by stating that mutual intention to bind the parties through their conduct is paramount for invoking the said Doctrine.

Recently, a three-judge bench of the Apex Court in the matter of Oil and Natural Gas Corporation Limited V. M/s Discovery Enterprises Private Limited and Anr, Civil Appeal No. 2042 of 2022 (Judgment dated 27 April 2022) set aside an interim award under Section 16 of the A&C Act 1996 deleting a party from the array of the parties as the Arbitral Tribunal failed to determine the legal foundation for the application of the Group of Companies doctrine. As per the apex Court, the Arbitral Tribunal erred by deferring an application for discovery and inspection after determining its jurisdiction in the application under Section 16 of the A&C Act which deprived the party a chance to establish Group of Companies doctrine by leading evidence which may come to light vide the said discovery and inspection application. Interestingly, when the interim award by the Arbitral Tribunal was passed, the Group of Companies Doctrine had not landed its foot in India, but the Apex Court observed that the foundation for the same had been laid down. In its judgment, the Hon’ble Supreme Court enlarged the scope of the doctrine under section 7 by stating that the following factors may be considered when deciding whether a non-signatory company within a group of companies would be bound by the arbitration agreement:

“i) The mutual intent of the parties;

(ii) The relationship of a non-signatory to a party which is a signatory to the agreement;

(iii) The commonality of the subject matter;

iv) The composite nature of the transaction; and

(v) The performance of the contract.”

The most recent judgment to join the queue is the matter of Cox and Kings Limited V. SAP India Private Limited & Anr., Arbitration Petition No. 38 of 2020 (Judgment dated 6 May 2022), wherein the Hon’ble Court examined whether the principles of party autonomy under arbitration law and corporate personality in company law have been adequately safeguarded in outlining the scope and applicability of the Group of Companies doctrine being followed at present in Indian jurisprudence. It was duly noted that Group of Companies doctrine is one such area which is utilized to bind third parties to an arbitration agreement. Theoretically, the policy consideration of efficiency is argued to allow such joinders. However, until a legal basis for the same is provided, efficiency cannot itself be the sole ground to bind a party to arbitration.

The Apex Court further noted that vide various precedents courts in India on one hand have reduced the threshold of arbitration being a consensual affair and on the other hand, the Group of Companies doctrine is transposed on requirements under contract law to bind a party to an arbitration. It was further noted that amendment to the A&C Act 1996 in 2015 has expanded Section 8 (1) to include persons claiming, “through or under”. But such change has not been carried out in Section 2 (1) (h) which has created an anomalous situation wherein potentially a party “claiming through or under” could be referred to an arbitration but would not have the right to seek relief under Section 9 of the A&C Act 1996.

Though the Group of Companies doctrine as expounded, requires the joining of non-signatories as ‘parties in their own right’. This joinder is not premised on non-signatories ‘claiming through or under’. Such a joinder has the effect of obliterating the commercial reality, and the benefits of keeping subsidiary companies distinct. Concepts like single economic entity are economic concepts difficult to be enforced as principles of law. Eventually and keeping in mind the evolution of the Doctrine, the Hon’ble Supreme Court deemed it appropriate to refer the following questions to larger bench for an authoritative determination:

A. Whether phrase ‘claiming through or under’ in Sections 8 and 11 could be interpreted to include ‘Group of Companies’ doctrine?

B. Whether the ‘Group of Companies’ doctrine as expounded by Chloro Control Case (supra) and subsequent judgments are valid in law?

C. Whether the Group of Companies doctrine should be read into Section 8 of the Act or whether it can exist in Indian jurisprudence independent of any statutory provision?

D. Whether the Group of Companies doctrine should continue to be invoked on the basis of the principle of ‘single economic reality’?

E. Whether the Group of Companies doctrine should be construed as a means of interpreting the implied consent or intent to arbitrate between the parties?

F. Whether the principles of alter ego and/or piercing the corporate veil can alone justify pressing the Group of Companies doctrine into operation even in the absence of implied consent?

IV. CONCLUSION

From the above analysis, it is clear the Group of Companies doctrine is set to undergo a major overhaul whenever the larger bench of the Supreme Court takes up the matter and decides the questions as noted above. Their interpretation and answers will either make the Group of Companies doctrine a part and parcel of arbitral law as prevalent in India or would simply render it useless which may be invoked only in very exceptional cases. As noted above, it is important to balance the basic ethos of arbitration i.e. consent of the parties to choose arbitration as their preferred mode of dispute resolution and at the same time make sure that a party may be able to enforce its right against such company which effectively was performing the obligations under the Agreement. It is also important to note that the relevant extant commercial laws of India provide a for separate corporate identity and therefore, any judgement that shall be rendered by the larger bench of Supreme Court will have a direct impact on the same. In view of the complex commercial transactions which is the norm in today’s commercial world, it is important to hold the right company responsible for any wrong but at the same time, it is also important to even out the issues that might be felt by a company which is forced to participate in an arbitration proceeding when it had nothing to do with the arbitration agreement and has been made a party just because it is a group or a holding or a subsidiary company. It may be an option for the parties to contracts governed by Indian law to specifically exclude the application of Group of Companies doctrine by noting in their contracts (including arbitration agreements) that (i) the benefits derived from the contract will be restricted to only the parties to the contract; and (ii) only the signatories and defined individuals/entities will be treated as parties.

The authors are advocates at Khaitan & Co. Ajay Bhargava (Partner), Aseem Chaturvedi (Partner), Trishala Trivedi (Principal Associate) and Milind Sharma (Senior Associate) are part of the Dispute Resolution Practice at Delhi.

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