Detenu has constitutional right to make representation to authority against detention order, violation makes it illegal: Madhya Pradesh High Court - The Daily Guardian
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Detenu has constitutional right to make representation to authority against detention order, violation makes it illegal: Madhya Pradesh High Court

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It is quite remarkable, refreshing, robust and reasonable that the Madhya Pradesh High Court while espousing the supreme value of human and constitutional rights has in a latest, learned, laudable and landmark judgement titled Yatindra Verma Vs State of MP & Ors. in WP No. 9792/2021 delivered on June 24, 2021 has held that it is a constitutional right of a detenu who has been detained under the National Security Act, to make representation to the detaining authority against the detention order, violation of it which vitiate and make the order as illegal. A Division Bench of Madhya Pradesh High Court at Indore comprising of Justice Sujoy Paul and Justice Shailendra Shukla also held that the expression “public order” under Section 3 of the Act is wide enough to include the event of black marketing of an essential drug namely Remdesivir. The Court rightly observed that, “In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order.”

We all saw how ruthlessly in case of a serving Army Officer Lt Col Prasad Shrikanth Purohit, he was kept in jail shamelessly, senselessly and stupidly for more than nine years and even chargesheet was not filed against him charged under draconian MCOCA which ultimately had to be dropped as his eminent senior lawyer Harish Salve convinced the court that he was behind bars for such a long time and he ultimately got bail also! Beyond doubt, this is nothing but the “worst ruthless torture worse than the physical torture which police and those in uniform inflicted on him as was written also in his medical report” and must be termed “worst judicial murder in cahoots with police and men in uniform” that a serving senior Army Officer of the rank of Lieutenant Colonel was kept behind bars inexplicably for such a long time and still no chargesheet even was filed against him which itself shows how strong the case was against him which is a national disgrace and cannot be justified under any circumstances! If this can happen with Colonel Purohit then what can happen with a common man who cannot hire senior lawyers like Harish Salve? Our legal system has to reform radically right now without wasting any more time and this commendable judgment has to be emulated by all the courts in all such similar cases so that no person is kept rotting in jail for 9 bloody years without even charge sheet not being filed against him as we saw in case of Lt Col Purohit! Most shameful and most disgraceful!

To start with, this brief, brilliant, balanced and bold judgment authored by Justice Sujoy Paul for himself and Justice Shailendra Shukla of Indore Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost pointing out in para 1 that, “This petition filed under Article 226 of the Constitution assails the order of State Govt. dt.06/04/2021 published in the gazette Notification issued under Section 3(3) of the National Security Act, 1980 (hereinafter called NSA Act) and the detention order dated 10.05.2021.”

While elaborating on the facts of the case, the Bench then points out in para 2 that, “Briefly stated, petitioner submits that he is a social worker and is a member of a political party namely, Indian National Congress. The petitioner held the post of General Secretary and Secretary of the said party in Indore. Petitioner has organized various camps for the welfare of people from time to time. In the pandemic era also, petitioner made various efforts to provide helping hand to suffering people of Indore. The proof of welfare activities undertaken by petitioner are cumulatively filed as Annexure P/2. The petitioner claims that he was vocal in expressing his dissatisfaction over the manner in which the Covid crisis has been handled by the State Government. The petitioner was active in social media and photocopy of many such posts showing petitioner’s criticism or dissent are cumulatively filed as Annexure P/3.”

To put things in perspective, the Bench then puts forth in para 3 that, “It is canvassed that the government of the day was annoyed with petitioner’s comments and, therefore, a false FIR dated 08/05/2021 (Annexure P/4) was lodged against the petitioner for allegedly committing offence under Sections 420 and 188 of IPC r/w Section 3 of Epidemic Diseases Act 1897. The petitioner was also arrested on 07/05/2021. The District Magistrate passed the detention order dated 10/05/2021 wherein it is mentioned that petitioner is already in custody. This order dated 10/05/2021 nowhere mentions that petitioner has a right to prefer representation before the District Magistrate.”

Notification/Order dated 06/04/2021:-

As it turned out, the Bench then observes in para 4 that, “The legality, validity and propriety of the order dated 06/04/2021 published in the gazette of MP is called in question by contending that this order is passed without application of mind. Reference is made to various similar orders issued from time to time by the government right from 2014. It is contended that main reason for issuance of such order is “threatening to communal harmony”. In the present scenario, there was no such threatening, yet order dated 06/04/2021 was passed which shows total non-application of mind.

Section 3(3) of NSA Act provides power of delegation to “a” Magistrate. Since “a” is used in the statute, the government intending to delegate powers under Section 3 needs to issue ‘officer specific’ and ‘area specific’ orders. Issuance of general order like 6th April 2021 (Annexure P/1) is outside the purview of the enabling provision. NSA Act gives draconian power which needs to be exercised with utmost care and caution.”

Be it noted, the Bench then very rightly states in para 5 that, “The power under Section 3(2) of NSA Act can be exercised in three eventualities:-

i) for preventing him from acting in any manner prejudicial to the security of State.

ii) for preventing him from acting in any manner prejudicial to the maintenance of public order.

iii) for preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.”

As we see, the Bench then observes in para 6 that, “If Notification/order dated 06/04/2021 is read carefully, it will be clear that the eventuality (iii) aforesaid has not been mentioned in the said order and, therefore, any power exercised relating to said eventuality was outside the scope of delegation of power.”

NON-APPLICATION OF MIND

It is worth noting that the Bench then specifies in para 7 that, “Article 22(4) of the Constitution of India was referred, to contend that it gives a constitutional right to the person under detention to prefer effective representation against his detention. The order of detention is served on the petitioner through Station House Officer (SHO) on 13/05/2021 which is evident from Annexure R/3. The factum of detention was not brought to the notice of State Govt. by the learned District Magistrate. Resultantly, the government presumed that petitioner is absconding. Reliance is placed on document dated 14/05/2021 (Annexure R/4) and another document of same date (Annexure R/5). It is urged that a conjoint reading of these documents, shows that State Govt. was carrying an impression that petitioner has not yet been detained and he is absconding. The same impression was given to the Central Govt. by communication dated 14/05/2021 (Annexure R/5) wherein it is mentioned that “the person concern is reported to be absconding”. The inevitable consequence of such misrepresentation is that State Govt. and Central Govt. did not deem it proper to examine the case of petitioner or in other words, examined the validity of the detention treating the petitioner to be an absconder. To buttress this contention “Proforma No.1” (page 33) was relied upon which is signed by Under Secretary to the Govt. of MP (Home Department) wherein on more than one occasion, it is mentioned that “detenue is absconding”.”

RIGHT TO REPRESENT TO DISTRICT MAGISTRATE AGAINST DETENTION ORDER

While dwelling on the contention of the petitioner, the Bench then mentions in para 9 that, “It is submitted that the order of detention dated 10/05/2021 shows that the District Magistrate has mentioned that the petitioner may submit representation before State Govt. and the Central Govt. There is no mention that petitioner has a valuable right to prefer representation against the order of detention before the same Authority namely, District Magistrate. Reliance is placed on the recent Full Bench judgment passed in WP No.22290/2019 (Kamal Khare Vs. State of MP). For these cumulative reasons, the order dated 06/04/2021 (Annexure P/1) and detention order dated 10/05/2021 are liable to be interfered with is the contention of Shri Chabra, learned counsel for petitioner.”

GOVERNMENT’S STAND

While mentioning about the Government’s stand, the Bench then points out in para 10 that, “Shri Pushyamitra Bhargav, learned Additional Advocate General submits that necessary requirements flowing from Article 22(5) of Constitution were fulfilled. The order was passed by Competent Authority. Petitioner was informed that he has a valuable right of representation before competent authorities. As per Section 3(4) of NSA Act, after passing the order of detention, the District Magistrate became functus officio. Hence, question of preferring representation before the same authority does not arise.”

Simply put, the Bench then states in para 11 that, “Learned AAG placed reliance on the definition of “appropriate govt.” and urged that cases arising out of NSA Act are difference than the COFEPOSA and PIT NDPS Act. The judgment of Full Bench is distinguishable which is based on other provisions of law.”

Furthermore, the Bench then enunciates in para 12 that, “The detention order was communicated to the petitioner on 13/05/2021. It was approved by State Govt. on 14/05/2021 i.e. within statutory limit. As per (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.), the petitioner was entitled to receive an information regarding grounds of detention and was further entitled to get an opportunity to represent against it. Both the requirements were taken care of. Hence, no interference is required by this Court. The report of Superintendent of Police shows that the likelihood of involvement of petitioner in similar acts was not ruled out. This report became basis for passing of detention order. The stand of the State is that there was no suppression or misrepresentation of fact regarding showing the status of corpus as “absconder”. The scope of judicial review in NSA matters is limited. Necessary parameters on which interference can be made are missing. Hence, interference may be declined.”

FINDINGS

Quite remarkably, the Bench then propounds in para 15 that, “The power of preventive detention is duly recognized in our constitutional scheme. The constituent assembly composed of politicians, statesman, lawyers and social workers, who had attained a high status in their respective specialties and many of whom had experienced the travails of incarceration owing solely to their political beliefs, resolved to put Article 22, Clause (3) to (7) in the constitution, may be as a necessary evil (See: (1976) 2 SCC 521, Additional District Magistrate, Jabalpur vs. S.S. Shukla). Pertinently, this finding of Supreme Court has not been overruled in the subsequent judgment.”

Interestingly enough, the Bench then states in para 18 that, “Before dealing with the validity of said order, it is apposite to reproduce the enabling provision namely, Section 3(3) of NSA Act, 1980 which reads as under:- “(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.” Emphasis supplied.”

Truth be told, it cannot be glossed over that the Bench then observes in para 20: “That, in the order it is mentioned that in view of apprehension of threatening of “communal harmony” and committing of act prejudicial to the maintenance of public order and security of the State, the Govt. thought it proper to exercise power envisaged in Sub-Section 3 of Section 3 of NSA Act. If the reason for issuance of order dated 06/04/2021 is examined in juxtaposition with the similar orders passed right from 2014, we find substance in the argument of Shri Chhabra that said order has been mechanically passed without due application of mind by mentioning the threat regarding communal harmony. We are of the opinion that Sub-Section 3 of Section 3 does not mandate that reasons for issuance of such order must be mentioned. In order to maintain fairness, it is a good practice of mentioning reason for issuance of such administrative orders. The fairness is an integral part of good administration. It is said that “Sunlight is the best disinfectant”. Thus, in order to ensure fairness and to indicate the necessity for issuance of such delegation of power, mentioning of background reasons deserves appreciation. However, if an incorrect reason is mentioned in the order, but existence of actual/real reasons and circumstances cannot be doubted, the order cannot be interfered with solely because it partially contains a wrong reason. Putting it differently, the operative reason for issuance of such an order was to ensure the requirements ingrained of Sub-Section 2 of Section 3 of NSA Act. It is a matter of common knowledge that in the second wave of Corona, maintenance public order was a big challenge. However, we deem it proper to observe that it will be lawful for the State to issue such orders with due care and caution. The real reason for issuance of such order may be spelled out with clarity.

The first para of impugned order dated 06/04/2021 shows that apart from an anticipated threatening communal harmony, yet another reason for issuance of order was mentioned i.e……………. ‘commit act prejudicial to the maintenance of public order’. This reason is a relevant basis for issuance of such an order of delegation. Thus, we find no reason to interfere with the impugned order dated 06/04/2021 on this ground.

Another limb of argument to assail this order dated 06/04/2021 is that as per Sub-Section 3 of Section 3, the order should have been “area specific” and “authority specific”. Sub-Section 3 of aforesaid shows that keeping in mind the circumstances prevailing or likely to prevail in ‘any area’ within the jurisdiction of government, government can delegate its power of detention, to District Magistrate or to Commissioner of Police. Much emphasis is laid on use of “a” in two places in Sub-Section 3 of Section 3. We are unable to persuade ourselves with this line of argument of Shri Chhabra. The use of word “a” cannot be divorced from the remaining part of the provision. It is clearly mentioned in Section 3(3) that having regard to the circumstances in “any area”, a District Magistrate or a Commissioner of Police can be permitted to exercise power of detention. If “any area” covers the entire State in a situation like present one namely Covid-19 pandemic, ‘any area’ may be the entire State and in that situation, it is not necessary to issue the ‘area specific’ and ‘authority specific’ order. We find no such requirement in Sub-Section 3 of Section 3 for issuance of ‘area specific’ or ‘authority specific’ order. Thus, this argument must fail.”

No doubt, it would be apposite to mention here that the Bench then holds in para 22 that, “Last para of Annexure P/1 leaves no room for any doubt that the power so delegated was in relation to sub-section (2) of Sec.3 of the Act which, in our view, contains all the eventualities including the last one regarding which Shri Chhabra contended that it was not delegated. Apart from this, in our view, the expression ‘public order’ is wide enough which includes the aspect of black-marketing of an essential drug namely Remdesivir. On this account also, no interference is warranted by this Court.”

NON APPLICATION OF MIND

Quite pertinently, the Bench then notes in para 26 that, “In the instant case, as noticed, in the impugned order dated 06/04/2021, the State has partially mentioned the reason of “communal threat” in a mechanical manner. Similarly, we have noticed that despite recording a finding in the impugned detention order that the Corpus was already in custody, the State Govt. repeatedly mentioned that he is “absconding”. We are not impressed with the argument of learned AAG that it was not a mistake on the part of the government. We also find substance in the argument of Shri Chhabra that if State Govt. and Central Govt. carry an impression that detenu is absconding, this may have an adverse impact on their decision. Thus, utmost care and caution must be taken while giving a finding whether the person concern is really absconding or not.”

As a corollary, the Bench then states in para 27 that, “Thus, we have no hesitation to hold that the respondents have mechanically opined that Corpus was “absconding”. This is an example of non-application of mind or acting in a mechanical manner.”

Adding more to it, the Bench then points out in para 30 that, “In the instant case, the allegation against the Corpus was that he was black-marketing a single oxyflow meter. The stand of Corpus is that he is a social/political worker and it was his attempt to provide the oxyflow meter to a man in need. He is falsely trapped and implicated and arraigned in a criminal case. Since Corpus is facing a criminal case, we are not inclined to give any finding on this aspect which may have a bearing on the trial. In view of aforesaid three requirements, we are only inclined to observe that there was no material before the learned District Magistrate to believe that the Corpus will again indulge in similar activity of black-marketing.”

LAW LAID DOWN

Most significantly, as stated in the very beginning, the law laid down which forms the backbone of this notable judgment is then mentioned which states that –

(1) Article 22(5) of Constitution of India – The right of detenu to represent against detention order is a valuable and constitutional right, violation of which can make the order of detention as illegal

(2) Constitution of India – Preventive Detention – is duly recognized in our constitutional scheme. The Constituent Assembly composed of politicians, statesman, lawyers and social workers who had experienced the imprisonment owing solely to their political beliefs resolved to put Article 22, Clause 3 to 7 in the Constitution.

(3) Section 3(3) of NSA Act, 1980 – Although there is no statutory requirement of mentioning the background reasons on the strength of which order of delegation is passed, if reasons are assigned, it encourages fairness. If partially wrong reason is assigned in the order of delegation, neither order of delegation nor order of detention will stand vitiated.

(4) The order of delegation dated 6/4/2021 – A mechanical reproduction of non existing reason namely “threat to communal harmony” is quoted, but court was alive of real situation because of second wave of corona and hence no interference was made. It was noted that order dated 6/4/2021 contains a correct reason to prevent a person to “commit act prejudicial to the maintenance of public order”.

(5) Section 3(2) and (3) of NSA Act – The expression “public order” is wide enough which includes the event of black listing of an essential drug namely Remdesivir. Thus, contention that the delegation order does not cover the reason of detention is not accepted. The use of “a” on two places in Sec.3(3) does not mean that an “area specific” and “authority specific” order must be passed in all circumstances.

(6) Preventive detention – of a person who is already in custody – Permissible but compelling reasons with cogent material must be shown by the detaining authority based on antecedent activities of detenu.

(7) Right of representation before the District Magistrate by detenu – Effect of non mentioning of this right in the detention order – The Constitution Bench judgment in Kamlesh Kumar was followed by Full Bench in Kamal Khare. It was clearly held that it violates valuable right of detenu to prefer representation before same authority.”

To be sure, the Bench then lays down in para 36 that, “In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.”

Please read concluding on thedailyguardian.com

Before winding up, the Bench then minces no words to state in para 38 that, “Before parting with the matter, we deem it proper to observe that the main grievance of detenue/complainant was that the District Magistrate while passing the order of detention did not inform him about his valuable right to prefer a representation against the detention order before the same authority namely District Magistrate. Full Bench recognized the said right of the detenue in light of the constitutional bench judgment in the case of Kamleshkumar Ishwardas Patel (supra). Thus, in the fitness of things, it will be proper for the State to ensure that henceforth in the order of detention, it must be mentioned that the detenue has a right to prefer a representation before the same authority.”

Conclusion

In conclusion, all the courts must always strictly abide by what has been laid down in this case as also in many other similar such cases that the valuable rights of detenu also be respected and not thrown to the wind as we saw most disgracefully in case of serving Lieutenant Colonel and who is still serving – Prasad Shrikanth Purohit by police with full complicity of the judiciary! Judiciary must always be free of bias and deliver such exceptional judgments as we see in this case also and speak up for the rights of the accused also apart from taking care of the right of the victims so that, “Justice is not only done but also seen to be done”! For this to happen, police and men in uniform must be held accountable and they cannot be allowed under any circumstances to keep a person in jail for 9 to 10 years without even charge sheet not being filed which is a disgrace not just on police but also on the judiciary!

Sanjeev Sirohi, Advocate,

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Legally Speaking

Enemy within: Cryptic case of increasing instances of cyber sabotage in India

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A fledgling issue of a miscalculated measure but of critical pertinence, the complication of “Cyber-sabotage” is an all-encompassing phrase that refers to state and non-state actors targeting computing systems, often those that govern a nation’s vital infrastructure of critical and strategic importance. Such disruption-tactics can range from causing minimal impediments of public utilities to designing absolute mayhem by subjecting a Nation to incessant surveillance, or by hindering the access of a Nation to its assets of paramount importance – with the only way the affected Nation could retain the control of such assets back is by acceding to the demand of a ransom. Surprising and saddening as it is, the foremost cause for concern in these digitally sensitive times is the executive machinery’s discomforting quietness & furtiveness, as well as its disinterest towards openness, in disclosing the occurrences of cyber-sabotage on the country’s key infrastructure & critical assets. In order to fully grasp the magnitude of the problem, a look closer back home in India would be of particular interest to gain an intuitive insight into the magnitude of the predicament we are looking at.

The nodal national cyber-security agency of India has reported a colossal 1.15 million cyber-attacks in March 2021, according to the statistics provided by the Union Ministry of Home Affairs of the Government of India. This is an alarming twenty-fold hike in the reported instances of infractions over the 2016 figures. These disturbing stats are also buttressed by reports from independent and non-governmental firms & companies that India has now become one of the five most cyber-attacked nations. The majority of such cyber-attacks are aimed at dismantling vital assets of pivotal importance, with the banking sector, the defence infrastructure, and the oil & natural gas installations being the most recurrent targets amongst the lot – not to mention the pervasive magnification of the instances of ransomware attacks on the medicare and the pharma sector, especially at a time when the medical infrastructure of India was infirmly decrepit under the bludgeoning blows of the Second Wave.

Hence, taking into account the skyrocketing of the cases of cyber-attacks on India’s critical assets and strategic infrastructure of vital importance – a robust and rugged policy of Interception, Espial, and Response is the need of the hour. To better appreciate where the deficiencies of India’s cyber-security bulwark lies, let us understand first how the chassis of the Indian cyber-security framework looks like. Essentially, this framework functions on three central facets, i.e. – One, the identification of any attempts or attacks of cyber-sabotage; Two, a swift & speedy response system to a cyber-attack, thereby curtailing the attacker from inducing any additional harm, and; Three, interception of any incoming cyber-attack or an attempt of cyber-sabotage before it is able to penetrate a pregnable software or hardware component of a critical asset.

STURDY CHAINS AND WEAK LINKS

As much as India possesses an enviably fortified cyber-security defence set-up, however an ineffectual & callous response system acts as a fly in the ointment to its efficaciousness – perhaps, this weak link in an otherwise formidable framework can be attributable to the success of most of the cyber-attacks that India has witnessed in the past decade or so.

Woeful as it may seem, even in the face of frequent infractions of its cyberspace and in the tall claims of being a “cyber superpower”, the administrative setup of India often functions in a disorganized and disoriented fashion whenever pitted up against a cyber-attack – in the lack of specific organizational mandate, there lies chaotic confusion amongst its agencies and authorities, as who should finally have the jurisdiction over a particular instance of transgression. To add to the despondent state of affairs, the lackadaisical approach of the Indian bureaucracy to issues of grave & pressing concerns, coupled with its primordially deep-rooted affliction of “red-tapism”, often generates a response which is far too little, far too late – and, all of this ineffectuality in the response-system occurs even after the presence of two highly modernized & sophisticated nodal agencies which are tasked exclusively with providing cover on the cyber-front to the critical assets & vital infrastructures of India.

The nodal agencies that are being referred to here are,

One, the Indian Computer Emergency Response Team (“CERT-In”) – established in the year 2004 under the Information Technology Act, 200 (“IT Act”), with the Ministry of Electronics & Information Technology (“MEITY”) being in charge of its affairs and functioning.

Two, the National Critical Information Infrastructure Protection Centre (“NCIIPC”) – established in the year 2014 under the IT Act as well, with the National Security Advisor of India administering over the NCIIPC via the National Technical Research Organization (“NTRO”).

In the dearth of a clear course of action and a coherent & comprehensible line of communication between the agencies & authorities concerned, the end result is a dawdling & dilly-dallying response to a cyber-attack – and even if we were to pin our hopes on a diligent administrative revamp & restructuring aimed at a more streamlined functioning of the cyber-agencies and authorities in the near future, it would be a pipe-dream to expect an immediate change in the state-of-affairs immediately after such an overhaul. And for this very reason, our attention should be concentrated less on the response-system, and more on the development and advancement of prevention mechanisms – for, that is where the true panacea lies to the maladies of the disconcerting concerns of cyber-sabotage.

THE REAL ‘TROJAN HORSE’ IN INDIA’S CYBERSPACE FRAMEWORK

It is practically unworkable to detect and respond to each and every cyber-attack or attempt at cyber-sabotage aimed at India – let us not kid ourselves here, India faces thousands of such transgressions on a daily basis (perhaps far more, considering that not all cases are reported), and owing to a dearth of resources at the disposal of the concerned agencies and authorities, it is impracticable to put to effect the “detection-response” modus operandi.

Without question, our best bet then to tackle the virulence of violations on the virtual front is to bolster the strategies which can aid in preventing such cyber-attacks from happening in the first place – and such a “prevention” policy should ideally peruse a two-pronged approach:

Prong One: A robust and rigorous evaluation and certification of the components (both of software and hardware) that is being put to operation in critical assets and vital infrastructure (like, in the defence and security of the nation, for health & medicare, in communications & information technology, to name a few)

Prong Two: To instill and engender reasonable and practical standard operating procedures (“SOP”) amongst all the relevant stakeholders, with the view of increasing the awareness on the importance of observing protective security practices in the cyberspace

In recent times, many of the administrative decisions that have been taken with respect to acquiring software or hardware components made, manufactured, or assembled outside the territory of India escape reason in toto, and reek a lot of knee-jerk backlash riding high on the horse name nationalism. To buttress this assertion, let us go back to the abrupt ban foisted on over 100 Chinese mobile applications last year on the grounds of such apps being deleterious to the interests of sovereignty, integrity, and national security of India – and, I don’t wish to insinuate a challenge to the Governmental wisdom here. However, what is suspect is that such a disruptive decision was taken without any due factual or technical investigation of a scientific nature to scrutinize the dangers of such apps – however, if there was an inspection of this kind that was undertaken, it begs the question: why were the results of the same never made public?

Please read concluding on thedailyguardian.com

Let us consider yet another example – the Department of Telecommunication (“DoT”) proclaimed an official pronouncement, whereby it amended the licenses of telecom carriers to mandate the use of equipment only from “trusted sources” with effect from the mid of June of this year – simply put, no telecom carrier can buy a software or hardware component from a seller post-June 15 of 2021 which isn’t approved by the government, anymore. To add to the questionable series of events, as per this notification, the Designated Authority (appointed by the Government, mind you) can also create a list of such sellers whose software and hardware equipment shall be blacklisted, and with whom any sort of transaction shall jeopardize the interests of telecom carriers. The modus operandum of the DoT notification bears an uncanny resemblance with the banning of the Chinese apps last year – there is no account of what the basis of the administrative acuity behind the decision was, and it, unfortunately, seems like a step taken merely on the perception that such software and hardware components made, manufactured or assembled by certain companies of certain nations “may” serve as the stairs of backdoor surveillance.

Arguendo, even if the justification of such apprehensions of a looming threat to the nation’s assets by such pieces of equipment were to carry weightage – nonetheless, an action exclusively on populist premises, and not on investigative reason and rational, is daftly imprudent. Disheartening as it is, the Electronics & Information Technology Goods (Requirement of Compulsory Registration) Order, 2021 (“Order of 2021”) of the MEITY is perhaps the only policy document of consequential value that affirms the logical rationale of amply testing hardware pieces of equipment first, and thereafter objectively scrutinizing the data of such testing. In close parallels, the Indian Telegraph Rules, 1951 (“Rules of 1951”) mandate for a compulsory assessment of any telecom hardware before it can be given the green light to be sold in or imported to the domestic market in India. In furtherance of the Rules of 1951, the DoT has issued a public list of all telecom components and pieces of equipment that have to be mandatorily tested before they can be put to commercial or personal use in India. However, the catch is that be it in the Order of 2021, or the Rules of 1951, or the public list of the DoT – the scope of mandatory testing applies only to hardware pieces of equipment, and not to the software components.

The functioning of any electronic system is premised on a symbiosis of both the hardware component and the software element – and only the Heavens know why the current legal fabric does not necessitate a compulsory checking of the software element, especially in light of the fact that almost all reported cyber-attacks aimed at India were directed at destabilizing the software-element first!

Concluding Remarks

A lot of us have envisaged the Personal Data Protection Bill, 2019 (“Bill of 2019”) as the light at the end of this dark tunnel; as a one-pit stop solution to all the infirmities of and the loopholes afflicting India’s cyber-security framework, once the Bill becomes an Act – and that thought is misguided. On one hand where the Bill of 2019 aims at protecting the personal data of Indian citizens, what we need is an exhaustive and extensive cyber-security law – which not only plugs the already existing loopholes but also fosters the notion of an all-encompassing research-and-development-induced culture while addressing the issue of cyber-sabotage.

In this game of playing catch-up, Technology is far, far ahead of Law. Metaphorically speaking, if the two of them were to play a game of football; Technology would have scored a few hundred goals before Law would get to know where the goalpost is – in a lighter vein, after all kanoon andha hai.

Jokes apart, on a more realistic note – in India, for metamorphosing from a Bill to a Law, the journey encompasses an extensive legislative process; perhaps, even judicial scrutiny in some instances. On the other hand, Technology advances overnight! And with every technological progression, comes out novel ways in which such technological advancement could be put to a perverse usage – just like we have witnessed over the past decade or so the myriad mutations and variations of the means and manners in which cyber-attacks can be conducted.

And perhaps this solicitude is what makes the significance of the advent of a novel cyber-security enactment all the more consequential. Not only would this particular legislation have to keep up with the newfangled and disruptive ways of cyber-criminals, but it will also have to create a singular nodal agency or authority to address all issues and instances of cyber-sabotage – the creation of this sole authority or agency will go a long way in having a streamlined approach to any particular infraction of the Indian cyberspace. At the present time, we are not endowed with such an approach due to an overlap of mandate between multiple agencies and authorities, and a disarray that follows subsequently with regards to which authority or agency holds competent jurisdiction over an instance of a hack. And very importantly, the need for a new legislative enactment is of paramount importance to place a bar on the administrative authority from taking impulsive and hasty decisions which per se have no objective backing to them – perhaps the only way to diminish the fallout of a cyber-attack on an asset or infrastructure (critical & vital, or otherwise) is to infuse a culture of approaching every vulnerability with a systematic and scientific outlook.

They say an outdated Law, which perhaps doesn’t serve the society today as it did a certain yesterday, is like quicksand – and it ultimately ends up engulfing the same society it was made to serve. Perhaps, the most formidable adversary to India’s virtual defences is not a black-hat hacker operating from a distant, far away land – it is our rambling cyber-security architecture that is in utter shambles. The enemy within is the antiquated legal framework governing our cyberspace, which has lived far beyond its expiry date.

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Practice of not answering query regarding maintenance of petition By An Advocate Is Deprecated: Madhya Pradesh High Court

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It is really good to see that the Madhya Pradesh High Court has as recently as on July 30, 2021 in a latest, learned, laudable and landmark judgment titled Arun Singh Chauhan Vs State of MP & Ors in W.P. No. 11298/2021 has chosen to clearly deprecate the conduct of a practicing advocate who chose not to answer the repeated queries of the Court pertaining to the maintainability of his petition seeking issuance of a writ of quo warranto and regarding the non-impleadment of a necessary party. It must be mentioned here that the Division Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma also dismissed his petition challenging the posting and performance of duty of an administrative officer as SDM/SDO at a particular place with a cost of Rs 10,000/-.

It is stated right at the outset in this notable judgment regarding the law laid down that, “Article 226 of the Constitution – Writ of Quo Warranto – Can be issued to test the validity of appointment to a public office. The said writ cannot be issued to examine the posting or working of an officer to particular place.

Writ of Quo Warranto – Necessary party – The person against whom writ is prayed for is a necessary party.

Public Interest Litigation – Conduct of petitioner – A practising Advocate has chosen not to answer the repeated queries regarding maintainability of a petition seeking issuance of writ of quo warranto and regarding non impleadment of necessary party. The practise deprecated.

Exemplary cost – Since writ of Quo Warranto was not maintainable and there is no other public interest element involved, the petition was dismissed with exemplary cost.

Writ of Quo Warranto – Can be issued to question an appointment on the substantive post. The working of an officer on officiating posting or a particular station cannot be subject matter of the petition for issuance of writ of Quo Warranto.”

To start with, Justice Sujoy Paul who has authored this brief, brilliant and balanced judgment for a Division Bench of Madhya Pradesh High Court comprising of himself and Justice Anil Verma sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, a practising Advocate has filed this Public Interest Litigation wherein it is prayed as under:-

(a) Issue appropriate writ of Quo Warranto and may direct to respondents to take serious disciplinary action against Respondent No.4 and if he is unable to show or prove such an authority he may be ousted and restrained from functioning in the office and future bar also may be directed, which he has unlawfully usurped and intruded into or is unlawfully holding.

(b) Issue appropriate writ and may cost penalty on respondent for being on such post without proper authority for so long (one and half year).

(c) Issue appropriate writ and if he is not able to prove his authority then all the actions and proceedings taken by him must be suspended with immediate effects.

(d) Issue any other further order/orders or direction/directions as this Hon’ble Court may deem fit and appropriate to the facts and the circumstances of this case.”

Simply put, the Bench then states in para 2 that, “In para three of the petition, it is averred as under:-

“That the Petitioner is shattered by that an officer of different district is how liable to become an SDO/SDM of different district as the matter of fact is that the Respondent No.4 was an Administrative Officer of District Dhar on the post of Land Acquisition and Rehabilitation Officer, NHDC Kukshi, District Dhar and then he was transferred to District Alirajpur on the post of Dy.Collector but during both the posting he was not there and during above both the postings he was performing his duty and taking action from last one and half year in district Indore on the post of SDO/SDM of various subdivision of district Indore, even he is not the officer of district Indore, which is totally illegal and unlawful as the appointment of Respondent no.4 in Indore district on the post of SDO/SDM is not in accordance of law. And on remaining on the same post as SDO/SDM he defamed common people by posting their punishing image on personal handled Instagram page.””

As we see, the Bench then states in para 3 that, “The petitioner submits that on 14/12/2020 an order was passed by State government whereby 10 officers were transferred. Respondent No.4 was also transferred as Dy.Collector, Alirajpur from NHDC, Kukshi. The respondent No.4 never joined at District Alirajpur and started performing duty of SDM/SDO, Kanadiya Indore. Thus, writ of quo warranto may be issued against respondent No.4 to show under which authority he has working as SDM/SDO, Kanadia, Indore. The respondent No.4 SDO/SDM is misusing authority and making fun of common people and publishing those photographs on instagram. Hence, a writ of quo warranto may be issued.”

To put things in perspective, the Bench then envisages in para 6 that, “The petitioner has not filed the appointment order of the concerned officer/respondent No.4. The order dated 14th December, 2020 (Annexure P/4) shows that respondent No.4 is an officer of State Civil Services. The order further shows that he was posted as Dy.Collector. The appointment of respondent No.4 is not called in question. Indeed his posting and performance of a duty at a particular place namely Kanadia, Indore is called in question. This is clearly outside the scope of writ of quo warranto. We may hasten to mention that on more than one occasion the Court enquired from the petitioner, a practising Advocate as to how a writ of quo warranto is maintainable when petitioner is not challenging the appointment of respondent No.4 and has not chosen to implead him by name. Sadly, petitioner decided to avoid the said question repeatedly asked.”

As it turned out, the Bench then hastens to add in para 7 that, “The Apex Court in B.R. Kapoor Vs. State of Tamil Nadu AIR 2001 SC 3435 opined that a person against whom the writ of quo warranto is prayed for is a necessary party.”

Be it noted, the Bench then enunciates in para 8 that, “In HALSBURY’S LAWS OF ENGLAND, it is observed: “Broadly stated, the quo warranto proceedings affords a judicial inquiry in which any person holding an independent substantive public office or franchise or liberty is called upon to show by what right he holds the said office. If the finding is that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. It confers jurisdiction and authority on the judiciary to control executive action in the matter making appointment to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that these proceedings are subject to the condition recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and continue to hold them as a result of the convenience of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the persons entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.” [See HALSBURY;’S LAWS OF ENGLAND, 3rd Edn.; Vol.II. p.145].”

It deserves mentioning here that the Bench then points out in para 9 that, “In R. Vs. Speyer (1916) 1 K.B. 595 the appointment of a Privy Counselor was allowed to be questioned by a private person who had no personal interest in the matter. In India, the principle laid down in R. Vs. Speyer (supra) is followed and it was held that:- “In a proceeding of a writ of quo warranto to test the validity of appointment to a public office, the applicant does not seek to enforce any right of his as such, nor does he complain of non-performance of any duty towards him. What is in question is the right of the non applicant to hold the office. Hence, it is not necessary in such a case that the applicant must have some personal interest in the matter.” [See R. Speyer,(1916) 1 KB 595] (emphasis supplied).”

Furthermore, the Bench then states in para 10 that, “It is trite that a writ of quo warranto can be issued against a person and related to a post which he is substantively holding. It is relevant to examine the legal journey on this aspect.”

It is worth noting that the Bench then observes in para 11 that, “The Constitution bench of Apex Court in the matter of University of Mysore v. C.D. Govinda Rao (1964) 4 SCR 575 has held as under:-

“6. Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty, if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office…..” (emphasis supplied).”

What’s more, the Bench then enunciates in para 12 that, “In the matter of B.Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Assn; (2006) 11 SCC 731(2), the Apex Court has held as under:-

“43……..The order appointing the appellant clearly stated that the appointment is until further orders. The terms and conditions of appointment made it clear that the appointment is temporary and is until further orders. In such a situation, the High Court, in our view, erred in law in issuing a writ of quo warranto the right under Article 226 which can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus”. (emphasis supplied).”

Going ahead, the Bench then states in para 13 that, “In the matter of N. Kannadasan v. Ajay Khose (2009) 7 SCC 1 the Supreme Court has held as under:- “131…………The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an independent substantive public office is called upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order……………..” (emphasis supplied).”

Moving on, the Bench then notes in para 14 that, “The Delhi High Court in the matter of S.K. Dubey vs. Union of India, 1983 SCC Online Del 32 has held as under:-

“7…………An information in the nature of quo warranto lay only if the office was substantive in character, that is, an office independent in title, and if the holder of the office was an independent official, not one discharging the functions of a deputy or servant at the will and pleasure of others. An information in the nature of a quo warranto lay in respect of an office held at pleasure, provided that the office was one of a public and substantive character.”

Please read concluding on thedailyguardian.com

“26…….. “The test to be applied is whether there has been usurpation of an office of a public nature and an office substantive in character, that is, an office independent in title.” [R. v. Speyer (1916) 1 KB 597 at page 609]. The office must be a substantive office, that is, an office of independent character as contrasted with the employment of a deputy or mere servant……………” (emphasis supplied).”

Adding more to it, the Bench then observes in para 15 that, “This Court also in the matter of Anand Selot vs. Chief Secretary, Govt. Of MP & Ors. 2010 ILR (MP) 1357 has held as under:-

“18……………..As respondent No.3 is not substantively holding the post of Engineer-in-Chief, petitioner cannot question the said appointment, when it is not a substantive appointment to the post and seek a Writ of Quo Warranto”.

“20. If the judgment of the Supreme Court in the case of B.Srinivasa Reddy (supra) and N. Kannadasan (supra) and the Allahabad High Court alongwith the powers to be exercised by an incumbent holding post on current charge basis are evaluated in the light of the facts that have come on record, it is clear that a writ of Quo Warranto would not be maintainable in the case of such an appointment.” (emphasis supplied).”

Significantly, the Bench then observes in para 16 that, “In the instant case, the petitioner has not challenged the appointment of respondent No.4. The posting and working of respondent No.4 cannot be a reason for issuing the writ of quo warranto.”

More significantly, the Bench then points out in para 17 that, “For issuance of writ of quo warranto the locus standi is insignificant but to maintain a regular writ petition, the petitioner must show that he is a “person aggrieved”. This petition for issuance of quo warranto by no stretch of imagination can be treated to be a public interest litigation. In the matter of Retd. Armed Forces Medical Association and others Vs. Union of India & Ors. (2006) 11 SCC 731 (I) the Apex court held that “a petition praying for a writ of quo warranto being in the nature of public interest litigation, it is not maintainable at the instance of a person who is not unbiased. The proceedings of quo warranto is not meant to settle personal scores…..”. In the same judgment, the Supreme Court opined that if petition for issuance of writ of quo warranto is filed with impropriety or mala-fide intentions, exemplary cost should be imposed.”

Most significantly, the Bench then holds in para 18 that, “As analysed above, the petition for writ of quo warranto is not maintainable. It appears that petition is filed to either settle personal score or gain publicity. We deprecate such practice and deem it proper to dismiss the petition with cost of Rs.10,000/- (rupees ten thousand). Petitioner shall deposit Rs.5,000/- (rupees five thousand) before High Court Legal Aid Committee, Indore within 30 days and remaining Rs.5000/- (five thousand) in the fund of High Court Bar Association, Indore within the aforesaid time. The bar association may utilise the said fund for the purpose of relief to be given to the Covid affected lawyers/family members. Petitioner shall deposit the receipts obtained from said bodies before the Registry of Court within 30 days from today failing which Registry shall apprise the Court regarding non compliance so that suitable proceedings/contempt proceedings may be initiated.”

Finally, the Bench then holds in para 19 that, “The petition is dismissed with cost.”

All said and done, the Division Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma makes no bones in making it absolutely clear that the practice of not answering query regarding the maintainability of petition by an advocate is deprecated and cannot be condoned. It goes without saying that the advocates must always play by the rules of the book and always prefer to answer query regarding the maintainability of petition. All the advocates must always adhere to what the Madhya Pradesh High Court has laid down so clearly, cogently and convincingly in this leading case. It shall certainly be always in their own best interest as also in the best interest of their client also. Of course, the earlier they realize this and start implementing it also, the better it shall be in their own best term longer interests as also their clients! There can be certainly just no denying it!

Sanjeev Sirohi, Advocate,

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TRADE NOT MORE IMPORTANT THAN HEALTH: KERALA HC DISMISSES PLEA SEEKING WITHDRAWAL OF WEEKEND LOCKDOWN IN STATE

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In a progressive, powerful and penetrating observation, the Kerala High Court has just recently on July 27, 2021 in a latest, landmark, laudable and learned judgment titled A Hameed Hajee v. State of Kerala in WP(C) NO. 14867 OF 2021 while ruling explicitly that trade is not more important than health has dismissed a petition seeking withdrawal of the weekend lockdowns imposed in the State amid the pandemic. It must be mentioned here that the Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly observed that the prayers sought for by the petitioners would be contrary to the directions issued by the Supreme Court. Very rightly so!

To start with, this latest, learned, laudable and landmark judgment authored by Chief Justice S Manikumar for himself and Justice Shaji P Chaly of Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Instant writ petition has been filed for the following reliefs:-

“i. Issue a writ of mandamus or any other appropriate writ order or direction to the respondent to withdraw the lock down imposed on Saturdays and Sundays and restriction imposed on all shops, establishments, banks, other institutions, in the state enabling them to function on all days without any time restrictions;

ii. Issue a writ of mandamus or any other appropriate writ order or direction to the respondents to allow the shops, establishments, banks, other institutions to function more time including Sundays to reduce overcrowding of people by maintaining social distancing at all time;

iii. Issue a writ of mandamus or any other appropriate writ order or direction to the respondent to pass an order to functions Offices and other essentials services of Government Banks and Financial Institutions and other institutions on Sundays by following rotations of employees by granting leave on weekday to ensure services to all needy by avoiding overcrowding;

iv. Issue a writ of mandamus or any other appropriate writ, order to the respondent implement effective and efficient plan to strict adherence of Covid Protocol and Social Distancing each and every corner of the state.””

To put things in perspective, the Bench then puts forth in para 2 that, “Short facts leading to filing of the writ petition are as hereunder:-

According to the petitioner, the lock down and restrictions imposed by the State Government to control the spread of Covid-19 has proved to be as unsuccessful, evidencing from the current status of continuing constant rate of TPR in the State. Due to the indefinite extension of complete lock down on Saturday and Sundays, and other restrictions on the functioning of shops, establishments, Banks and other Institutions in the State, on a restricted time period and days, cause overcrowding in all these places, during the period of its functioning, cases have not come down. Petitioner has contended that the number of people or customers are not reduced, by imposing the lock down, but the Government have restrained, to a shorter period, to avail and meet the demands of public and others, the needs and requirements, which cause the overcrowding in shops and other establishments, violating the Covid Protocol and social distancing, the most effective and efficient method accepted across the world, for controlling spread of Covid-19. Petitioner has further contended that there are more than 30 lakh shops and establishments functioning in the State of Kerala and more than 90 lakh workers employed in these shops and establishments. Due to lock down and restrictions on the functioning of shops and establishments, merchants, businessmen, their employees and their families are facing huge financial stringency. The family of these people are purely depending on these sectors for their livelihood and other needs. Due to restrictions to open and functioning of the shops and establishments, huge stock purchased by the merchants are lying idle, holding their huge investment. Apart from that, dues in rent for shops and buildings, electricity and water charges, EMI for loan, wages and salary of its works and employees, etc., piled up the financial burden and liability of merchants in the State. Petitioner has also contended that in the urge of effective and efficient method to control the Covid-19 in the State and safeguard the interest of the merchants and businessmen in the State, according to the petitioner, the Government is still continuing with the proven failed method of implementing lock down and restriction on shops and establishment to control spread of pandemic Covid-19, which is highly necessary to be withdrawn in the current scenario and that the Government should come out with effective implementation of Covid Protocol, social distancing and sanitation and cleanliness, a world wide accepted method of controlling spread of Covid-19.”

Simply put, the Bench then envisages in para 5 that, “Learned Advocate General further submitted that having regard to the ‘Kanwar Yatra’ in Uttar Pradesh, Hon’ble Supreme Court registered Suo motu Writ Petition (C). No.5 of 2021 and, on 14.7.2021, issued certain directions and further directed to list the matter on 16.07.2021. Subsequently, on 18.07.2021, an interlocutory application, viz., I.A. No.82837 of 2021, in Suo motu Writ Petition (C).No.5 of 2021 is filed on behalf of one Mr. P.K.D. Nambiar, pointing out certain news articles, which portray an alarming situation taking place in Kerala as a result of Bakrid celebrations.”

Most significantly, the Bench then observes in para 6 that, “Having heard learned counsel for the parties therein, in I.A. No.82837 of 2021, the Hon’ble Supreme Court, on 20.7.2021, passed the following orders:

“What is extremely alarming is the fact that in Category D, where infections are the highest i.e. 15%, a full day of relaxation has been granted, which was yesterday. It is then stated that, as far as possible, the persons visiting shops and other establishments may belong to those with at least one dose of vaccine/COVID recovered category and follow strict COVID protocols, echoing paragraph (vi) of the 17th July, 2021 Notification, along with the Chief Minister’s appeal. The aforesaid facts disclose an alarming state of affairs. To give in to pressure groups so that the citizenry of India is laid bare to a nationwide pandemic discloses a sorry state of affairs. Even otherwise, homilies such as “as far as possible” and assurances from traders without anything more, do not inspire any confidence in the people of India or this Court. We may only indicate that this affidavit discloses a sorry state of affairs as has been stated hereinabove, and does not in any real manner safeguard the Right to Life and Health guaranteed to all the citizens of India under Article 21 of the Constitution of India. It may also be pointed out that the relaxation for one day to a Category D area was wholly uncalled for. In these circumstances, we direct the State of Kerala to give heed to Article 21 read with Article 144 of the Constitution of India, and follow the law laid down in our orders in the Uttar Pradesh case i.e., 14.7.2021, 16.7.2021 and 19.7.2021. Also, pressure groups of all kinds, religious or otherwise, cannot in any manner, interfere with this most precious Fundamental Right of all the citizens of India. We may also indicate that if as a result of the Notification dated 17.07.2021, any untoward spread in the Covid-19 disease takes place, any member of the public may bring this to the notice of this Court, after which this Court will take necessary action against those who are responsible. In view of the above, I.A. No.82837 of 2021 and the suo motu writ petition are disposed of.””

Adding more to it, the Bench then points out in para 7 that, “Mr. K. Gopalakrishna Kurup, learned Advocate General, further submitted that there will be a review of the COVID-19 pandemic situation in Kerala and depending upon the decision, the restrictions either relaxed in certain cases or made stringent, as the case may be. According to him, only after a comprehensive decision is taken, appropriate orders will be issued by the Government.”

Furthermore, the Bench then points out in para 8 that, “Placing on record the above submission, having regard to the orders of the Hon’ble Apex dated 20.7.2021, extracted supra, and taking note of the submission that a review will be conducted on COVID-19 pandemic situation, we are of the view that the interim order granted on 19.05.2021, periodically extended, requires further extension. Interim order is extended upto 9.8.2021. Registry is directed to post this suo motu writ petition on 06.08.2021.””

What’s more, the Bench then further added that, “Thus, when the Hon’ble Supreme Court had already taken note of the Covid situation in Kerala and observed that relaxation of the restrictions, even for a day to some category of area, was wholly uncalled for, and that when the Hon’ble Supreme Court has also observed that it was the sorry state of affairs that State of Kerala, does not in any real manner, safeguard the rightful life and health guaranteed to all the citizens under Article 21 of the Constitution, the prayers sought for, would be contrary to the directions issued by the Hon’ble Supreme Court.”

Finally and far most significantly, the Bench then holds in the final para that, “That apart, judicial notice can also be taken that in the State of Kerala, the Test Positivity Rate is increasing, despite the measures taken by the Government, to contain the spread of Covid – 19. Trade or business is not more important than health, which is integral to right to life. Reasonable restrictions can be imposed on trade or business. Article 19 (6) and 21 of the Constitution of India, encourages, right to trade and business. If only there is health and life, one can engage himself in trade or business. Having regard to the above, we are not inclined to issue any mandamus as prayed for by the writ petitioner. Writ petition is dismissed.”

Of course, it would not be an exaggeration to say that the final para forms the cornerstone of this brief, brilliant and balanced judgment which very rightly accords the supreme importance to health and also minces no words to hold that, “Trade or business is not more important than health, which is integral to right to life.” We all must always adhere to it and this alone explains why it is so famously said also that, “Health is wealth.” If our health is not good then we cannot enjoy anything in life no matter how much wealth we may have with us! There is certainly no valid reason to disagree with what the Division Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly have held so explicitly, elegantly and effectively in this noteworthy case while dismissing the plea seeking withdrawal of weekend lockdown in the State! There can certainly just be no denying it!

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STATUTORY ARBITRATION UNDER THE MSMED ACT, 2006: AN ANALYSIS OF THE SUPREME COURT’S JUDGEMENT IN SILPI INDUSTRIES

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The resolution of disputes by arbitration has become one of the preferred modes of dispute resolution in India. The reasons for the popularity of arbitration as a mode of dispute resolution are three-fold: one, arbitration provides for a quick resolution of the disputes between the parties by a mutually (sometimes also unilaterally appointed) appointed arbitrator(s), respecting party autonomy and consent of the parties; two, the evolution of arbitration-friendly approach of courts and legislature in India; and three, the provisions of compulsory/optional arbitration under different statutory instruments in India. The Micro, Small and Medium Enterprises Act, 2006 (MSMED Act) passed by the Indian Parliament with the objective of the promotion, development, and enhancement of competitiveness of micro, small and medium enterprises enunciates statutory arbitration as a recovery mechanism in cases of disputes concerning payment of dues between the parties.

One of the central objectives of the MSMED Act is to provide for speedy disposal of the claims of the suppliers (micro, small and medium enterprises under the MSMED Act) with regards to recovery of dues. Chapter V of the MSMED Act enacts the provisions regarding delayed payments to MSMEs. Section 18 of the MSMED Act lays down the procedure to be followed for the resolution of disputes concerning payments due to be paid by a buyer to a supplier under the MSMED Act. Section 18 of Chapter V enunciates a two-tier dispute resolution mechanism for the settlement of payment disputes between the parties: first, the parties may make a reference to the Micro and Small Enterprises Facilitation Council (Facilitation Council) and the Facilitation Council shall then, either itself or through any other institution or centre providing alternate dispute resolution services, conduct conciliation in the matter under the provisions of Part III of the Arbitration and Conciliation Act, 1996 (ACA); and second, if the conciliation is unsuccessful and there is no settlement of disputes between the parties, the Felicitation Council is mandated to either itself conduct an arbitration or refer the parties to any institution or centre for conducting such arbitration under the provisions of ACA.

Recently, the Hon’ble Supreme Court of India (SCI) in M/s Silpi Industries & Ors. v. Kerala State Road Transport Corporation & Ors., Civil Appeals Nos. 1570-1578 of 2021 (Silpi Industries) decided upon two important questions of law regarding statutory arbitration under the MSMED Act read with the ACA. The following were the questions answered by the SCI in its judgement: (1) Whether or not the provisions of the Indian Limitation Act, 1963 apply to arbitration proceedings initiated under Section 18(3) of the MSMED Act; and (2) Whether or not, a counter-claim is maintainable in such arbitration proceedings. In this article, the authors shall be analysing the judgement of the SCI in Silpi Industries, and its potential implication on Micro and Small industries registered and unregistered under the MSMED Act.

FACTUAL MATRIX

There were two batches of appeals heard by the SCI in Silpi Industries. In the first batch of appeals, the appellants were aggrieved by the judgement of the High Court (HC) of Kerala in an arbitration appeal matter wherein the HC had held that Limitation Act, 1963 is applicable on proceedings initiated under Section 18(3) of the MSMED Act read together with ACA. Further, following the judgement of the Allahabad HC in M/s B.H.P. Engineers Pvt. Ltd. v. Director, Industries, UP Facilitation Centre, Kanpur & Ors., 2009 SCC OnLine All 565 and the Nagpur Bench of Bombay HC in M/s Steel Authority of India Ltd. & Anr. v. Micro, Small Enterprise Facilitation Council, 2010 SCC OnLine Bom 2208, the Kerala HC had held that owing to the provisions of Section 23(2A) of the ACA, counterclaim and set off is maintainable in an arbitration proceeding arising out of institutional arbitration under Section 18(3) of the MSMED Act.

In the second batch of appeals, i.e., Civil Appeals No. 1620-22 of 2021, the appellant was aggrieved by the judgement of the Madras HC in which a second arbitrator was appointed by the HC under Section 11(6) of the ACA. The relevant facts were such that the appellants had filed a claim petition against the respondent before the Facilitation Council under the MSMED Act. Although the respondent appeared before the Facilitation Council, the respondent, in furtherance of its arbitration agreement with the appellant, had made an application before the Madras HC for the appointment of a second arbitrator under Section 11(6) of the ACA. The Madras HC allowed the application of the respondent for the appointment of a second arbitrator, and owing to the provisions of the MSMED Act, did not agree with the case of the appellant that the application of respondent is liable to be dismissed given the pending claim petition before the Facilitation Council. Aggrieved by the order of the Madras HC, the appellant had preferred Civil Appeals No. 1620-22 before the SCI.

ANALYSIS

Applicability of Limitation Act, 1963 on arbitral proceedings under the MSMED Act-

To begin with, the first issue which concerns the applicability of the Limitation Act on the arbitral proceedings under the MSMED Act, the Supreme Court concurred with the decision of the High Court and reiterated the ratio laid down in one of its previous judgments. Taking note of the provisions of Section 43 of the ACA, the SCI propounded that Limitation Act, 1963 will also be applicable on arbitrations arising out of Section 18(3) of the MSMED Act. The apex court observed that when the parties to a dispute, one of whom is qualified as an MSME enterprise, fail to come to terms under the MSMED Act, Section 18(3) of MSMED Act obliges the Facilitation Council to refer the parties to arbitration as per the ACA. Once arbitration is invoked as per Section 18(3) of the MSMED Act, all the provisions of the ACA will automatically become applicable to it. Accordingly, every such arbitral proceeding shall be deemed to be construed as arising out of an arbitration agreement stipulated under Section 7(1) of ACA, even when the parties had not incorporated such arbitration agreement at the time of entering into a contract. The stance taken by the Supreme Court on this particular issue seems to be settled from the beginning as a variety of judgments by courts ranging from High Courts to the Supreme Court have consistently followed this approach. Furthermore, a contrary view to the above-stated position is not feasible as the law on such an issue is clear, categorical, and longstanding. Any contrary view would sabotage the primary purpose of limitation contemplated under the Limitation Act, 1963.

Maintainability of counter-claim & set-off in an arbitration proceeding under the MSMED Act-

Another very important aspect that constitutes the heart of the judgment is the issue of the maintainability of counterclaim in arbitral proceedings initiated under Section 18(3) of the MSMED Act. In this regard, the Court had delved into the legislative intent underlying the MSMED Act, 2006 which is to safeguard the interests of the MSMEs. The said legislation confers benefits upon the sellers which qualify to be MSMEs, in pursuance of a beneficial object that it purports. Such conferment of benefits can find its roots within various provisions of Chapter V of MSMED Act which not only prescribes the rights and obligations of the seller and the buyer, respectively, but it also provides for the mechanism for recovery of any unpaid amount to the seller. Sections 15 and 17 of the MSMED Act 2006 require the buyer to make payment of the amount due to the seller (MSME) within the time agreed by the parties or time prescribed under the Act, failure of which would render the buyer liable to pay the due amount in addition to compound interest at the rate three times of the bank rate. Additionally, Section 19 enables the buyer/applicant to apply for setting aside an award, decree, or order passed in favour of the seller, only when she deposits 75% of the amount in terms of the award or decree.

Given the aforesaid provisions, the court opined that ousting the jurisdiction of the Facilitation Council merely on the ground of inadmissibility of the counterclaim by the buyer/Respondent under proceedings under section 18(3) of MSMED Act would defeat the very purpose of the MSMED Act as the seller (MSME) would not be able to enforce its rights against the buyer in case of any default in payment by the latter. That is to say, if counter-claim is not allowed, the buyer can easily evade its statutory obligation of payment of compound interest at the rate three times of the bank rate and security deposit of 75% envisaged under Sections 16 and 19 of MSMED, respectively, by filing a counter-claim in the proceedings under Section 18(3) of MSMED Act. Such a decision implies that even when there is a separate agreement for the resolution of disputes between the parties, the parties are bound to follow the recovery mechanism stipulated under the statute of the MSMED Act.

The mechanism for the recovery of the unpaid amount provided within Section 18 of MSMED Act stipulates that in case of any dispute with regards to the non-payment of amount due to the seller, any party may refer to the Facilitation Council which will then conduct conciliation between the parties as per subsection (2) Section 18 of MSMED Act. It is only when the parties fail to conciliate, the parties are mandatorily referred to arbitration under Section 18(3) as a result of which all the provisions of ACA will become applicable to such arbitration as if there is an arbitration agreement between the parties under Section 7(1) of ACA. While making special reference to Section 23(2A) of the ACA, the Supreme Court has highlighted that when there is already a provision for filing a counterclaim under Section 23(2A) of the ACA, there is no point in denying the right of the buyer/respondent to file a counterclaim in the arbitration proceedings before the Facilitation Council under Section 18(3) of MSMED Act. The rationale behind the insertion of the provision of counterclaim within the ACA was to prevent multiplicity of proceedings and diverse claims. Curtailing the right of buyer/respondent in the arbitration proceedings under Section 18(3) would initiate parallel proceedings in distinct forums. In this way, the seller who is a beneficiary under the MSMED Act would claim before Facilitation Council under the provisions of the MSMED Act, while the buyer would either approach the civil court for making its claims or seek the appointment of an arbitrator if there is an arbitration agreement between the parties. Hence, refusal to admit the counterclaim in the arbitral proceedings before the Facilitation Council under Section 18(3) of MSMED Act, 2006 will lead to conflicting findings by different forums and render such proceedings redundant.

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Dhanbad judge death: Court wants speedy, fair and professional probe; Jharkhand HC seeks SIT report on 3 Aug

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It is most shocking to see that an upright, fearless and dedicated Judge named Uttam Anand has been brutally murdered by goons on July 28 in a three wheeler vehicle which has shocked the conscience of the entire nation except those politicians who feel that it is too trivial a matter to be discussed in Parliament and what is most serious is that their phones were hacked and this has seriously invaded their exclusive privacy. No doubt, hacking of phone is an illegal act and those who are behind it must be dealt with in accordance with law but does this mean that Opposition should hold Parliament to ransom and tear papers in Parliament, snatch it from Minister and tear it, shout and not allow Parliament to function and ignore the brutal murder of ADJ (Additional District Judge) Uttam Anand as a “routine affair”? Why it makes no difference to our Opposition MPs and why they are not ready to mourn the brutal murder of Uttam Anand and demand a thorough probe into it?

Why are they concerned only with mobile snooping and phone snooping? If they have nothing to hide then why are they so perturbed? Is Pegasus snooping row a more important issue or brutal murder of an ADJ which is nothing but a direct attack on our judiciary itself? Does the life of a Judge signify nothing? I really pity at all those MPs who are not allowing Parliament to function smoothly and who are not at all concerned with the brutal and ghastly murder of this fearless Judge who placed his values above his own safety!

It is however good to note that senior lawyer named Vikas Singh who is President of Supreme Court Bar Association, Chief Justice of India NV Ramana and Jharkhand High Court have all taken this key issue most seriously for which they must be lauded. The Division Bench of Jharkhand High Court comprising of Chief Justice Dr Ravi Ranjan and Justice Sujit Narayan Prasad has taken suo motu cognizance of ADJ Uttam Anand’s death and has directed the Special Investigation Team formed to probe into the incident, to submit its report by August 3. The Division Bench in its oral order dated 29 July, 2021 first and foremost points out in para 1 that, “The matter has been taken up through video conferencing.”

To put things in perspective, the Bench then points out in para 2 that, “A letter has been received by the In-Charge Registrar General written by the Principal District and Sessions Judge, Dhanbad bearing letter No.2788-G/2021 dated 29.07.2021 intimating incidence regarding sad and unfortunate demise of Shri Uttam Anand, District and Additional Sessions Judge-VIII, Dhanbad on 28.07.2021. The content of the aforesaid letter is reproduced hereunder:- “LETTER NO. 2788-G/2021 From : Ram Sharma’ Principal District and Sessions Judge, Civil Court, Dhanbad. To, The Registrar General, High Court of Jharkhand, Ranchi. Dhanbad dated 29.07.2021 Subject : Intimation regarding untimely demise of Sri Uttam Anand, District and Addl. Sessions Judge-VIII on 28.07.2021. Sir, This is to bring to you kind notice that on 28th July 2021 at about 9.20 am, I was informed by the Registrar, Civil Court Dhanbad, that Sri Uttam Anand, District and Addl Sessions Jude-VIII had gone for a morning walk but did not return till now. I instructed him to contact the local police immediately and visit the nearby hospitals. The SSP Dhanbad was also informed telephonically in this regard and photograph of Sri Uttam Anand, District and Addl. Sessions Judge-VIII was also circulated to police personnels and the court staffs. During the course of search it was discovered that Sri Uttam Anand, District and Addl. Session Judge -VIII was found critically injured near Randhir Verma Chowk and was brought to PMCH Hospital. I immediately rushed to PMCH Hospital and found him dead. The attending doctors informed me that he was brought to the hospital by one Pawan Kumar Pandey and thereafter necessary treatment was given to Sri Uttam Anand and he was also put on ventilator but succumbed to his injuries. Thereafter, necessary instructions were issued to the police with regard to arrest of culprits. This is for your information and needful. Yours Faithfully Sd/- 29.7.21 Ram Sharma Principal District and Sessions Judge Dhanbad” Let letter No.2788-G/2021 dated 29.07.2021 be kept on record.”

While taking suo motu cognizance, the Bench then puts forth in para 3 that, “This Court, on the basis of the aforesaid letter as also the CCTV footage, takes suo moto cognizance of the matter treating the letter as the writ petition in the nature of Public Interest Litigation. Office is directed to register the case accordingly.” To be sure, the Bench then observes in para 4 that, “We have gone through the content of the aforesaid letter as also perused the CCTV recording of the occurrence and, therefore, called upon the learned Advocate General of the State, Director General of Police, Jharkhand, Senior Superintendent of Police (SSP), Dhanbad and Superintendent of Police (City), Dhanbad as also Mr. Rajiv Sinha, learned Additional Solicitor General of India.”

To put things in perspective, the Bench then enunciates in para 5 that, “We, during the Court proceeding, asked the Office of this Court to display the CCTV footage of the incident which has been perused by the learned Advocate General and the officers who are present today. The Senior Superintendent of Police, Dhanbad has submitted in course of hearing that two persons have been apprehended. One of them is auto-rickshaw driver and another person who was sitting in the vehicle. Interrogation is being done by the Special Investigating Team constituted by him.” While elaborating on the facts of the case, the Bench then envisages in para 6 that, “The members of the Bar have also appeared and submitted before us that the incident, in which a judicial officer has been killed, cannot be taken as a simple case of accident or murder rather the investigation is required to be conducted by the investigating agency on the angle that there may be conspiracy for the killing of the judicial officer as, according to them, the judicial officer concerned was in the seisin of very sensitive matters. It has further been submitted that it cannot be believed that this incident is a simple accident by a vehicle as the place where the incident took place is the prime location of the town of Dhanbad or it may be called as the main chowk of Dhanbad and when the concerned judicial officer was on morning walk, he was approached by autorickshaw. It would be evident from the CCTV footage that the vehicle, at the morning time when there was no traffic at all on the road took a sharp bend and approached the judicial officer who was jogging on the footpath on the left side. The auto-rickshaw came from behind and suddenly went towards the judicial officer. It slowed down when it just came beside him and then the judicial officer fell down on his left side. They have submitted that it would be more surprising to see the CCTV footage that one motor-bike rider who was coming from the opposite side of the auto-rickshaw took a u-turn and had followed the auto-rickshaw and when the concerned judicial officer has fallen, he watched the judicial officer falling down and thereafter fled away. They submitted that after watching such CCTV footage it does not appear to be an accidental death, rather it appears that it is a well conspired killing of the judicial officer that too just adjacent to the residence of the judicial officers in the town of Dhanbad. They have submitted that it is further surprising that the CCTV footage immediately went viral. Question is, when the CCTV cameras which have been installed in the municipal roads, is expected to be under the control of the district administration then how the aforesaid CCTV footage could become viral? They have also submitted that as per the newspaper report, the aforesaid auto-rickshaw has been found to be of one Sugni Devi, who in course of interrogation has apprised the investigating agency that her auto-rickshaw has been stolen. It is submitted that the occurrence is nothing but a brazen attack on the justice delivery system perhaps to give some message across the country therefore, it is a fit case where the investigation is required to be handed over to the Central Agency i.e., Central Bureau of Investigation.”

Needless to say, the Bench then while referring to eminent and senior advocate – Vikas Singh who is the President of Supreme Court Bar Association and who is actively monitoring this case points out in para 7 that, “During the Court proceeding, Mr. Vikas Singh, President of the Supreme Court Bar Association, had prayed to provide him link to appear in this case. Such link was provided to him and in pursuance thereto Mr. Singh appeared during the Court proceeding and has submitted that the incident of murder of the judicial officer is nothing but an attack on the judicial system of the country and ultimately a brazen attack of our democratic system. As such, he contended that the matter is required to be investigated by C.B.I.”

Be it noted, the Bench then observes in para 8 that, “We have put a question to the Superintendent of Police (City), Dhanbad who is heading the Special Investigating Team, that as to whether the two wheeler rider has been apprehended or not? He has replied that the two wheeler rider has not been apprehended but the persons riding the auto-rickshaw have been apprehended. We have also put query to the Senior Superintendent of Police, Dhanbad that what is the proof regarding theft of the auto-rickshaw, as has been said by Rugni Devi, the owner of the auto-rickshaw and whether the theft of that auto-rickshaw was ever been reported to any police station? Upon this the Senior Superintendent of Police has submitted that as yet it has not been verified. He further submits that he will take care of this angle and will also investigate this aspect of the matter.”

Please read concluding on thedailyguardian.com

It is also worth noting that the Bench then mentions in para 9 that, “Learned Advocate General has submitted that since the Special Investigating Team has been constituted and two vital persons have been apprehended, therefore, at this stage matter may not be handed over to the Central Bureau of Investigation otherwise it will have a demoralizing effect upon the police force of the State. He further submits that if this Court deems it fit and proper then the State is ready to appoint a high rank police officer to head the Special Investigating Team. The Director General of Police, Jharkhand has submitted in furtherance to the submission made by learned Advocate General that a higher ranking police officer of the State would lead the Special Investigating Team and he has suggested the name of Mr. Sanjay A. Lathkar, IPS, now ADG (Operation), Jharkhand. The Director General of Police, Jharkhand has submitted that he will take all sincere endeavour to get hold of real culprits as also to conduct the investigation in professional manner to surface the conspiracy, if any, in the murder of the judicial officer concerned. He has further submitted that the Special Investigating Team will surface out the entire thing since two vital persons, who were boarding the auto-rickshaw, have already been apprehended and proper investigation in a professional manner would be conducted.”

Most remarkably, the Bench then holds in para 10 that, “This Court, in view of the facts stated hereinabove and taking into consideration the fact that Special Investigating Team has apprehended two persons on 28.07.2021 as also in view of the submission made by the learned Advocate General and Director General of Police that a high rank police officer would lead the Special Investigating Team and the investigation would be conducted in a very professional manner, deems it fit and proper to permit the S.I.T. headed by Mr. S.A.Lathkar, ADG (Operation) to investigate the matter in a professional and fruitful manner. We, hereby, direct the Director General of Police, Jharkhand to immediately issue appropriate order/direction for heading the Special Investigating Team by Mr. Sanjay A. Lathkar, IPS, ADG (Operation), Jharkhand today itself. The newly appointed head of the Special Investigating Team will immediately take over the investigation and conduct the investigation in a professional manner and submit its progress report on 03.08.2021. We make it clear that this Court wants a speedy, fair and professional investigation in the matter, as such, this Court will monitor the progress of the case and that is the reason we are posting this case on 03.08.2021 to look into the progress in the matter to come to the conclusion for continuation of the investigation by the Special Investigating Team or to hand it over to the Central Bureau of Investigation. We further make it clear that apprehending a pawn is meaningless unless the conspiracy is fully uncovered and the mastermind is nabbed. Time would be essence of matter in this investigation. Delay as well as well as any flaw in investigation may eventually affect the trial adversely. We are directing the S.I.T. to submit a report on the next date of hearing. Let an affidavit be filed disclosing as to when the information regarding the occurrence was received by the police and the time when the F.I.R. was registered. Let an information be also given to us as to whether the procedure of post mortem was video-graphed or not? The Director General of Police, Jharkhand will apprise this Court about the graph rate of the crime in the State of Jharkhand after January, 2020.”

Going ahead, the Bench then states in para 11 that, “Let this matter be posted on 03.08.2021 at the top of the list.”

What’s more, the Bench then further adds in para 12 that, “The required affidavits, as directed, shall be filed along with progress of investigation including the copy of the post-mortem report and F.I.R. under sealed cover, on or before the next date of hearing.”

Finally, the Bench then holds in para 13 that, “Let this order be communicated immediately to the learned Advocate General of the State who will ensure its communication to the concerned officers forthwith.” One is quite sure that the truth will definitely come out as to who all are behind this dastardly murder of the great soul named ADJ Uttam Anand. The dogged determination with which Jharkhand High Court is pursuing the case and so also Vikas Singh who is President of Supreme Court Bar Association and is actively taking most keen interest in the case and so also the CJI NV Ramana who himself spoke to Dr Ravi Ranjan who is Chief Justice of Jharkhand High Court and has taken suo motu cognizance of this case and has said that it would want to be appraised of the status of investigation and so it is just not possible that those involved can get away under any circumstances! It needs no Albert Einstein to conclude that our Judges have to be safeguarded from violent attacks because if this is not done then Judges will fear for their personal safety and procrastinate in front of powerful criminals and this we see also to some extent in our country even though many Judges are still upright and one such Judge named Uttam Anand we saw being brutally murdered in broad daylight! This should never have happened but it has happened in Jharkhand! One only fervently hopes that the culprits are quickly brought to justice and all those who are behind it are also brought to book and are not left scot free under any circumstances!

It will not be an exaggeration to say that our whole system has become rotten and it must be addressed in totality. Just band aid solution like punishing only the real killers of ADJ Uttam Anand is not the real solution. All those who are behind it and all such criminals with several serious criminal cases pending against them and yet sitting most comfortably in Parliament and State Assemblies with some even becoming Law Ministers themselves or their juniors like Minister of State must be thrown out right now whether in the Centre or in the States!

This alone will be the best tribute to the departed Judge named Uttam Anand! If politicians don’t act themselves now it is the Supreme Court which must now immediately swing into action and take this as nothing but as a direct assault on the judiciary itself and it is most comforting also to note that the top court as also the Jharkhand High Court have both taken it most seriously! It brooks no more delay anymore! How many more Judges are we waiting to be killed in such callous manner by the ruthless criminals? Truth must come out at the earliest and those behind it deserve to be hanged publicly at the earliest! There cannot be any mercy for them! No way! No question!

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Will India get another SC bench for southern states?

Surya Pratap

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The councils stated that they made the demand in light of the problems that persons from the South encounter in conducting cases in Delhi, both in terms of accessibility and cost. A delegation of top officials from the Bar Councils of five southern states – Karnataka, Tamil Nadu, Telangana, Andhra Pradesh, and Kerala – met with Chief Justice of India NV Ramana and Vice President M Venkaiah Naidu to advocate for the establishment of a Supreme Court of India bench in South India. The Bar Councils of Telangana, Andhra Pradesh, Tamil Nadu, Karnataka, and Kerala came together in January this year and overwhelmingly demanded a Supreme Court bench in south India. It was unanimously resolved to request all the State Legislative Assemblies and Legislative councils to pass resolutions and send them to the center seeking a bench of the apex court in South India. 

In November 2019, MDMK General Secretary and Rajya Sabha MP Vaico addressed the long-standing demand for the Supreme Court to establish a bench in South India for the convenience of litigants in the Upper House of Parliament. Vaiko had stated that a Supreme Court bench in Chennai will help the supreme court’s backlog of litigation. He said that the high expense of travel to New Delhi was prohibiting marginalized and disadvantaged people in South India from accessing the Supreme Court.

DECENTRALISATION’S OBJECTIVES

According to Justice Krishna Iyer, there was no rationale for choosing Delhi as the Supreme Court’s exclusive venue. The tyranny of the south by the north was mirrored in the centralised system. Suggested that the Supreme Court be divided into many benches, similar to how several High Courts do it. Several additional proponents of decentralisation note to two major issues that they feel regional benches can address.

The Supreme Court hears only a few matters from the subordinate courts. Due to the Supreme Court’s geographical concentration in Delhi, frequent adjournments have only added two cases to the pre-existing backlog. Aside from the case backlog, the Law Commission’s 229th report also highlighted the logistical challenges that poor litigants confront when travelling all the way to Delhi.

SUGGESTION OF THE LAW COMMISSION 

The Law Commission recommended that four regional benches be established to hear matters from each region. Second, the separation would allow a Supreme Constitutional Court to better teach national issues. Litigants frequently ask their High Court attorneys to appear at the Supreme Court, resulting in a cost multiplier in terms of lodging and travel fees. “Adjournment grew prohibitive, costs multiplied,” according to the Law Commission’s findings. The Supreme Court was created to be a constitutional court, not just another Court of Appeal (Justice Bhagwati). The court, on the other hand, is currently inundated with appeals, which consume more time than constitutional issues. Only ten 5-judge constitutional benches have been formed on average per year since the 1960s, compared to 100 per year in the 1960s.

Article 145(3) mandates the use of these benches in all cases involving significant constitutional issues. “The Supreme Court cell seat in Delhi or such other place or places, as the Chief Justice of India may, with the agreement of the president, nominate from time to time,” according to Article 130 of the Indian constitution. As a result, the Supreme Court can convene at any location, not just Delhi. In a 1986 decision, Justice P.N. Bhagwati agreed with this viewpoint.

“If Article 130 is generously interpreted, no constitutional change may be required for the purpose of establishing cassation benches in four regions and a Constitution Bench in Delhi,” the Law Commission stated in its 229th report. The Chief Justice of India’s action, with the president’s consent, may be sufficient. It should also be emphasised that the Chief Justice of India acts as a person designato under Article 130 and is not compelled to consult any other authority or person. Only the president’s approval is required.

OPPOSITE PERSPECTIVE

Many legal experts believe that establishing regional Supreme Court benches will diminish the court’s constitutional superiority. However, given that the decentralisation is both functional and structural, and that only the Delhi bench deals with constitutional issues, such fears may be unfounded. As a result, establishing regional benches has no bearing on the supreme court’s finality or superiority. The Supreme Court of India has always been a strong institution that has provided exceptional service to the country.

ARE THERE ANY OTHER OPTIONS?

The Congress advocated the creation of a national Court of Appeals (NCA) as an intermediary body between the Supreme Court and India’s 25 high courts to hear regular civil and criminal appeals from the high courts in its Lok Sabha election platform. According to the Congress’s proposal, the NCA will be divided into six regional benches, each with three judges. The Congress has also suggested a constitutional change that would limit the Supreme Court’s authority to issues involving constitutional interpretation and adjudication of cases of national importance.

CONCERNS WITH THIS 

Article 130 of the Indian Constitution, which would, in fact, amount to meddling with the Supreme Court’s essential constitutional structure. An amendment like this would strip the Supreme Court of its extraordinary appeals-hearing powers. The Union Minister of Law and Justice stated the same thing in 2014 when denying the aforementioned request.

ATTEMPTS IN THE PAST

The report recommended that the Supreme Court establish four appellate benches in Chennai/Hyderabad, Delhi, Kolkata, and Mumbai. At the time, the report’s proposal was rejected. V Vasanthakumar submitted a petition in 2015 to establish regional Supreme Court benches. The Supreme Court appointed KK Venugopal, the incumbent Attorney General, as an amicus curia in the case. He was in favour of the court being decentralised. However, Mukul Rohatgi, the then-Attorney General, was a vocal opponent of the proposal.

THE PROPOSAL’S DRAWSBACKS

A fragmented court is thought to result in fragmented verdicts. The Supreme Court must unify the law throughout India, and having numerous benches may obstruct this purpose. This is analogous to the current situation, in which multiple High Courts issue conflicting rulings on the same facts. This proposition may possibly be in violation of doctrine’s basic structure. Any division of the code would necessitate a constitutional amendment. Article 136, in particular, may have an impact on basic structure doctrine. Ex-CJI KG Balakrishnan made a point of avoiding dismissing cases, as this would be tantamount to denying someone a hearing. As a result, urgent measures are required to resolve the backlog of cases.

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