Failure to supply ‘legible copies’ of documents relied upon despite request by detenu renders detention order illegal: Delhi HC - The Daily Guardian
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Failure to supply ‘legible copies’ of documents relied upon despite request by detenu renders detention order illegal: Delhi HC

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Delhi HC

In a most significant judgment directly affecting the detenus, the Delhi High Court in a recent, remarkable, refreshing, robust and rational judgment titled Zakir Khan v. Union of India and other connected matter in W.P.(CRL) 72/2022 and CRL.M.A.788/2022 and so also in W.P. (CRL) 73/2022 and CRL.M.A.791/2022 delivered most recently on May 2, 2022 has minced just no words to observe that a detention order passed by the Detaining Authority based on “illegible” copies of documents suffers from non-application of mind and is liable to be quashed. It added that a further failure and non-supply of legible copies of all documents to the Detenu, despite request and representation, renders the order of detention illegal and bad in law. We thus see that a Division Bench of Delhi High Court comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar allowed the petitions filed by two detenus namely Zakir Khan and Sanjeev Kumar praying for quashing of detention orders dated November 26, 2021 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Siddharth Mridul for a Bench of Delhi High Court comprising of himself and Justice Rajnish Bhatnagar puts forth in para 1 that, “These two writ petitions under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973, have been instituted on behalf of Zakir Khan (hereinafter “Detenu No. 1”), the Petitioner in W.P.(CRL.) 72/2022 and Sanjeev Kumar @ Sanjeev Kumar Yadav (“Detenu No. 2”), the Petitioner in W.P.(CRL.) 73/2022 (hereinafter collectively referred to as the ‘Detenus’), praying for quashing of detention orders, both dated 26.11.2021, bearing No. PD-PD-12001/17/2021-COFEPOSA and PD12001/18/2021- COFEPOSA, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter “COFEPOSA”) against the Petitioners/Detenus No. 1 and 2 respectively; and for further directions that the detenus be set at liberty forthwith. As these Petitions raise common questions of law and are premised on similar facts, they are being disposed off by this common order.”

While dwelling on the facts of the case, the Bench then envisages in para 2 that, “The relevant facts qua the detenus, as are necessary for the adjudication of the subject writ petitions are briefly encapsulated as follows: –

i) The Income Tax Department conducted a search and seizure operation on 10.10.2021 at 23 premises allegedly belonging to the Detenu No. 1 and persons allegedly associated with him. Thereupon, a Statement (Annexure P-4) of the Detenu No.1 was recorded u/s 132(4) of the Income Tax Act, 1961, on the 11.10.2021, wherein the Detenu No. 1 admittedly stated that he had studied only till the VIII standard and therefore, expressed his volition to record his statement in Hindi.

ii) That, further on 13.10.2021, a Container No. PCIU8689880 (40 Feet) imported by one M/s Indo Fab, at Kolkata Port, with a declaration stated to contain HDMI cables, was subjected to examination by the Income Tax Authorities in the presence of port custom officers wherein it was found that it contained several prohibited items namely, old and used/refurbished laptops, mobile phones etc. Accordingly, the same was detained by the Customs officers at Kolkata. It was alleged that the said firm M/s Indo Fab was owned/controlled by the Detenu No.1.

iii) That on the basis of information received from the Income Tax Department, New Delhi; the Directorate of Revenue Intelligence, Delhi Zonal Unit (hereinafter DRI/Respondent No.3) initiated search proceedings at the purported residential premises of the Detenu No. 1 i.e., at S-80 Greater Kailash-I, New Delhi, on the 18.10.2021. During the search, certain documents allegedly found stored in the said premises in the form of files, loose documents, writing pads, diaries, Certificate of Incorporation/Articles of Association pertaining to three Hong Kong based supplier firms on which the name of the Detenu No.1 was mentioned as nominated person were recovered. All documents relevant to the investigation were resumed for further investigations in relation to the suspected undervaluation of imported goods by the firms allegedly controlled/owned by the Detenu No.1 and the Panchnama was drawn.

iv) On 18.10.2021, upon further search conducted at the office premises of Mr. Anurag Tiwari, Custom Broker-proprietor of M/s Anurag Tiwari situated at L-509, Gali No. 15, Mahipalpur Extension, New Delhi, when it was allegedly noticed that the clearance work of imports made in relation to the firms purportedly controlled/owned by the Detenu No. 1 was handled by one Sanjeev Kumar Yadav (Detenu No.2), having Custom Broker firm namely, M/s Sanjeev Kumar situated at Khasra No. 808, Gali No. 6B, K Block, Mahipalpur, New Delhi. Accordingly, search proceedings under the Customs Act, 1962 were carried out at the said office of Sanjeev Kumar whereupon certain documents were allegedly found stored in the said premises, in the form of files, loose documents etc. in respect of the said firms purportedly controlled/owned by the Detenu No.1. The officers of the DRI resumed the said documents for further investigations.

v) On or about the 18/19.10.2021, the Detenus were arrested by officers of the DRI and produced before the Court of CMM (Duty Magistrate), Patiala House Courts through Virtual Conference at around 08:30 PM (as it was a holiday) and were remanded to 3 days Judicial Custody.

vi) On 22.10.2021, Detenus were produced before the Learned Court of CMM, Patiala House Courts, New Delhi and remanded to 14 days judicial custody till the 04.11.2021.

vii) The Detenus admittedly filed retraction applications on the 28.10.2021, before the learned CMM Court thereby, retracting their statements recorded on 18/19.10.2021 before the DRI.

viii) The DRI then caused to be filed an application before the learned CMM, Patiala House Courts, New Delhi seeking permission to record statements of the Detenus u/s 108 of the Customs Act, 1962, which was allowed vide order dated 01.11.2021.

ix) On 02.11.2021, another container No. PCIU8010617 (40’) imported by M/s Viha International at Kolkata Port, with a declaration to contain HDMI cables, was subjected to examination by the officers of DRI, Kolkata wherein it was allegedly found that it contained several prohibited items namely, old and used laptops, CPUs. Accordingly, the same was detained by the officers of DRI, Kolkata. It is alleged that the said firm M/s Viha International was also owned/controlled by the Detenu No. 1.

x) On 05.11.2021, the DRI caused to be filed an application before the learned CMM Court seeking extension of the Detenus remand for a further period of 14 days. Vide Order dated 05.11.2021, the judicial remand was extended till 18.11.2021.

xi) On 08.11.2021, Bail applications were filed by the Detenus before the learned CMM, Patiala House Courts, New Delhi, both of which were summarily declined vide an order dated 15.11.2021.

xii) Judicial remand of the Detenus was further extended for a period of 14 days till 02.12.2021 by the Ld, CMM, vide order dated 18.11.2021.

xiii) On the 26.11.2021, the subject impugned detention orders (Annexure P-1) were passed by the Detaining Authority (Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, COFEPOSA Wing, hereinafter the Detaining Authority/Respondent No.2), which were served upon the Detenus on 27.11.2022 while they were still in judicial custody in Tihar Jail, New Delhi, pursuant to their arrest by the DRI for the purported commission of alleged offences, punishable u/s 132/135(1)(a)(b) of the Customs Act, 1962.

xiv) Since no criminal prosecution was filed against the Detenus in the customs case, the Detenus were granted statutory bail in terms of the mandate of the provision of Section 167(2) of the Code of Criminal Procedure vide Order dated 20.12.2021 passed by the Learned CMM.

xv) On 21.12.2021 the Detenus made a representation to the Detaining Authority, submitting that a large number of documents furnished to them were illegible and many other documents that had been relied upon and referred to were not furnished, communicated and/or supplied at all; and therefore, demanding legible copies of all of the above, so as to enable them to make an effective representation. This detailed representation was rejected by the Detaining Authority vide order dated 28.12.2021 (received by the Detenus in the jail on 29.12.2021).

xvi) On the 04.01.2022, a constitutionally provided representation was filed by the Detenus before the COFEPOSA Advisory Board (hereinafter “Advisory Board”).”

Be it noted, the Bench then discloses in para 3 that, “A further perusal of the grounds of detention, impugned in these proceedings reveal that the role assigned therein to the Detenu No.1 pursuant to the investigation carried out is that: –

(a) Detenu was the founding member/owner of three Hong Kong based supplier firms viz. M/s Trackon Logistics Limited, Yottabyte International Co. Limited and M/s SFS Import & Export Co. Limited, and from these supplier firms, goods were imported in the name of shell entities/dummy firms owned by the Detenu No.1 and that he used to decide the prices at which such goods are to be invoiced and declared before the Indian Customs. The value of the imported goods declared by these shell entities before Customs was allegedly roughly 5% (1/20th) of the actual purchase value of these goods;

(b) That the Detenu No.1 was the mastermind behind perpetrating the entire modus operandi of mis-declaration /undervaluation of imports through several dummy firms owned/controlled by him and differential remittances for the imported goods were remitted through hawala channels in order to evade custom duties, thereby causing huge loss to public exchequer. It is alleged that, during the period of 2017-2021, the Detenu No.1 had imported goods amounting to an estimated value of Rs.2730 crores, on which differential duty liability was estimated to be the sum of Rs 500 crores, whereas the actual declared value of the subject imported goods before the customs was statedly Rs.136 crores and the duty paid thereon was approximately Rs.42 crores.”

Notably, the Bench then reveals in para 4 that, “Also, a perusal of the grounds of detention, impugned in these proceedings, reveal that the role assigned therein to Detenu No.2, pursuant to the investigation carried out is that:-

(a) Detenu No.2 was the proprietor of the Customs Broker firm namely M/s Sanjeev Kumar, and rendered Customs Clearing Services for past 6 years to Detenu No. 1 in importing the consignment of electronic goods and computer peripherals, through his Custom Broker License as well as the borrowed Custom broker licenses of M/s Expert Cargo Movers of Shri Manoj Nagar and M/s Anurag Tiwari of Shri Anurag Tiwari, respectively; and paid monthly amount to the above-stated firms ranging from Rs.20,000/- to Rs.40,000/-, depending upon the volume of import in a given month.

(b) Detenu No. 2 also used the Custom broker licenses of M/s Phenomenal Logistics, M/s Anubhav Cargo, M/s Shyam Singh and M/s Satish Panjwani for the custom clearance of the goods allegedly imported by the various entities controlled by Detenu No.1.

(c) Detenu No. 2 used to charge Rs.10,000/- from Detenu No. 1 as agency charges through banking channel and, since the goods imported by Detenu No.1 were highly undervalued, Detenu No.2 used to charge Rs. One lakh per consignment in cash over and above the agency charges, for smooth clearance of the under-invoiced and under-valued imported goods.

(d) Detenu No.2 is stated to have orchestrated a plan to facilitate customs clearance of imported goods that were mis-declared and undervalued using licenses of other Customs Brokers despite the fact that the Detenu No.2 himself has a Customs Broker License in his name.”

While citing the relevant case law, the Bench then states in para 25 that, “We find it apposite at this stage to extract the observations made by the Hon’ble Supreme Court in a recent decision in Mallada K. Sri Ram vs. The State of Telangana & Ors. in Criminal Appeal No. 561 of 2022 (Arising out of SLP (Crl) No. 1788 of 2022, reported as LQ/SC/2022/476, specifically paragraph 15 as is reproduced hereunder: –

“15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the maintenance of public order. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law.””

Quite significantly, the Bench then expounds in para 28 that, “It is observed that it was fairly admitted before this Court that several RUDs including not only those supplied to the Detenus, but also those on the record with the Detaining Authority are illegible i.e., not readable. In this regard, this Court’s decision in Mohd. Nashruddin v. Union of India & Ors., reported as 2021 SCC OnLine Del 4017 and the relevant paragraphs thereof are reproduced hereunder:-

“47. It is trite to say that a person detained in pursuance of an order for preventive detention, has a constitutional right to make an effective representation against the same. The authorities are constitutionally charged with the responsibility to ensure that the grounds of detention, including all relevant documents that are considered whilst forming the subjective satisfaction, W.P.(CRL.) 1924/2020 Page 52 of 86 are provided to the detenu by the Detaining Authority, so as to enable the detenu to make an effective representation to the Advisory Board, as well as to the Detaining Authority. Therefore, the non-supply of legible copies of all relevant documents inspite of a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad; and vitiates the subjective satisfaction arrived at by the Detaining Authority.

48. In our considered view, therefore, the supply of the following documents namely, a) Passport, b) Identity Cards of codetenu’s, c) WhatsApp chats, d) bill of entry, e) invoice, f) the statement of Mr. Rohit Sharma who is alleged to have defaced the gold bars imported illegally etc. was critical, in order to enable the detenu to make a comprehensive, holistic and effective representation against the impugned detention order, both before the Advisory Board, as well as before the Detaining Authority.

49. In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material.

50. In this regard the Hon’ble Supreme Court has, in Dharmistha Bhagat V State of Karnataka & Ors reported as 1989 Supp (2) SCC 155 and in particular paragraph 5 thereof, observed that non-supply of legible copies of vital documents would render the order of detention illegal and bad. The relevant portion has been extracted hereinbelow:

5. The learned counsel appearing on behalf of Respondent 1, Union of India has contended that even though legible copy of panchnama referred to in the list of documents mentioned in the grounds of detention has not been supplied to the detenu yet the fact that five gold biscuits of foreign marking were recovered from the possession of the detenu was sufficient for subjective satisfaction of the detaining authority in making the said order of detention. So the detention order cannot be termed as illegal and bad for non-supply of legible/typed copy of the said document i.e. panchnama dated 12-2-1988. The panchnama dated 12-2-1988 which had been referred to in the list of documents referred to in the grounds of detention and a copy of which had been given to the detenu along with the grounds of detention, is not at all legible as is evident from the copy served on the detenu. It is also not in dispute that on receiving the documents along with the grounds of detention the detenu had made a representation to Respondent 1 stating that some of the documents including the panchnama which had been supplied to him are illegible and as such a request was made for giving typed copies of those documents to enable the detenu to make an effective representation against the same. The detaining authority on receipt of the said representation sent a reply denying that the copies of those documents were illegible and refusing to supply typed copies of the same. It is clearly provided in sub-article (5) of Article 22 of the Constitution of India that:

“(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e. panchnama dated 12-2-1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709 : 1981 SCC (Cri) 592 : AIR 1981 SC 1861] has observed that: (SCC p. 710)

“The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention, as has been held by this Court in the two cases cited by counsel. The detenu is, therefore, entitled to be released. He is accordingly directed to be released forthwith.”

51. To the similar effect are the observations recorded in the judgment of the Apex Court in Manjeet Singh Grewal vs. UOI & Ors. reported as 1990 Supp SCC 59.””

Quite forthrightly, the Bench then holds in para 29 that, “Upon a plain reading of the said order dated 03.03.2022 and the above extracted decision of this court, we are of the view that, as the RUDs; supplied to the Detenus as well as relied upon by the Detaining Authority, in arriving at its subjective satisfaction were admittedly illegible; it has the unnerving consequence of violating the constitutional rights guaranteed to the Detenus.”

While referring to another relevant case law, the Bench then states in para 31 that, “In our opinion, the aforementioned contention raised on behalf on the official respondents is untenable in light of the Hon’ble Supreme Court’s decision in Mrs. Tsering Dolkar vs. Administrator, Union Territory Of Delhi & Others reported as (1987) 2 SCC 69 and in particular paragraph 12, wherein it was observed as under: –

“12. The learned Additional Solicitor General relied upon the feature that the petitioner-wife knew both English and Tibetan languages and an effective representation as a fact had been made. There can be no two opinions that the requirement of law within the provisions of Article 22(5) of the Constitution is that the detenu has to be informed about the grounds of detention in a language which he understands. The fact that the detenus wife knew the language in which the grounds were flamed does not satisfy the legal requirement. Reliance was placed by the learned Additional Solicitor General on a decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala &Ors., [1985] 3 SCR 679 in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated. There is no clear indication of the test of prejudice being applied in that case. On the facts relevant before the Court, a conclusion was reached that the detenu was merely reigning ignorance of English and on the footing that he knew English, the matter was disposed of. We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. (See AIR 1975 SC 1513, [1975] 2 SCR 832 , AIR 1975 SC 245 ).””

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Policy & Politics

COVID VACCINE: POLICY AND LAW

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Vaccine

INTRODUCTION

On 12 th May,2022, the Supreme Court of India delivered a significant judgement in which it held that the directive of the State Governments and Union Territories to make vaccination compulsory was unreasonable. Justice Nageshwara Rao delivered the judgement ( also on behalf of Justice Br Gavai) and also directed the Central Government to release the data of clinical trials subject to the privacy of the individuals.

REASONING OF THE COURT

Coming to the substantive part of the judgement which struck down the policy of mandatory vaccination, it becomes essential to bring to the notice of the readers how the Court arrived at its reasoning. The Apex court has held that vaccine mandates do not satisfy the test of proportionality as laid down in the landmark case of K.S. Puttaswamy v. UOI (2017). The test of proportionality as elucidated by the court seeks to measure whether the object and the need that is desired to be fulfilled are proportional to the measures adopted in the law to achieve them. It also measures whether the law imposed is disproportionate to the fundamental right that is infringed by the law in achieving the objective.

The Supreme Court while deciding the proportionality of the vaccine mandates has come to the conclusion that the restrictions imposed by the rules of vaccine mandates are not proportionate to the restrictions imposed on the unvaccinated persons. The court found that there is no demonstrable data to prove that the coronavirus spread only from the unvaccinated persons and not from the vaccinated persons. This is significant considering the fact that a huge misconception exists in the society where it is generally considered that those who are not vaccinated pose a virus threat to the society. The apex court held that the vaccine mandate that infringes Article 21 of the Petitioner is not in proportionate as “both vaccinated and unvaccinated individuals presently appear to be susceptible to the transmission of virus at the similar level.”, thus, there is no reasonable ground for the restrictions to be continued on the unvaccinated persons.

PRUDENT MENTION OF FOREIGN JURISDICTIONS

The court also took note of the developments around the world in which the Courts stepped up in order to defend the rights of the individuals. For example, the Court has cited the case of New York where the city was divided into various zones such as red and orange on the basis of the Covid threat. By the majority,the Supreme Court had held that the said restrictions were violative of the first amendment of the Constitution. Significantly the Court had also explicitly stated that fundamental rights cannot be put away even in time of a pandemic.The Court in detail also dwelt on other foreign jurisdictions such as New Zealand and New South Wales( a state in Australia) in order to show how active judiciary was in times of Covid 19 to safeguard personal liberty of the citizens of the country. The examples of these countries were likely given in order to lead to the inference that the courts all over the world in leading constitutional democracies have played a significant role in stepping up in order to ensure that basic fundamental rights of the citizens of the country remain intact.

CONCLUSION

The judgement definitely comes as a big relief for the citizens of the country since those who were still unvaccinated had been put at a disadvantageous position due to the fact that they were being denied benefits of various services . It is hoped that various State Governments will take back their directive of mandatory vaccination in light of the judgement pronounced. At the same, there is no more discretion left for the Government to decide on which data it wants to release and which not. Overall, the judgement serves a good purpose for ensuring that the executive is held accountable for its unjust and arbitrary policies.

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Policy & Politics

Sedition law: How to interpret the recent developments

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In an unprecedented development apex court recently passed an interim order to put section 124 A commonly known as Sedition Law of the Indian Penal Code in the dormant state till Either the Union Government comes with amended provisions regarding the said law or the Hon’ble Court final adjudicatesthe issue. It is pertinent to note here that the Sedition law is 152 years old colonial law and many of our freedom fighterslike Annie Besant, VD Savarkar, Bal Gangadhar Tilak (Queen Empress V. Bal Ganga 1898) & Mahatma Gandhi were convicted under the same law during India’s Struggle forfreedom. This provision was extensively used to curb the political dissent during the Independence movement. 

The Sedition Law has been originated in England, where King was considered the pre-eminent, and anything said or done against the king tantamount to his insult, hence England lawmakers drafted provisions regarding dealing with such acts.  

When India was under British Control, IPC was drafted by Thomas Macaulay, and Sedition was not introduced initially under the legislation, later it was included as an offense through special Act XIV. This law was introduced specifically for anything done against the king but after India got independence our lawmakers mix up provisions of treason and defined Sedition under IPC as, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India” shall be punished with imprisonment for either description of 3years which may be extended for life or fine or both. It is a Non-Bailable offense and the Government is entitled to seize the passport of the convicted under this section and shall not be eligible for any government job.

The provisions contained under 124A explicitly provide that one is free to criticize the government in power but the said criticism shall not be attempting to excite hatred, contempt, or dissatisfaction.

In a significant amendment to Criminal Law Amendment 26 of1955, the previous punishment Under 124A IPC replacedTRANSPORTATION FOR LIFE with IMPRISON LIFE. The said amendment has been criticized by eminent law professionals. After the independence, we came across many cases under this section and some of the most important ones are discussed hereunder;

Romesh Thapar V State of Madras (950 CRILJ 1514, [1950] 1 SCR 594, AIR 1950 SC 124, (1950) 2 MLJ 390, LQ/SC/1950/24the Supreme court liberally interpreted the provisions of the sedition law in this case and held that any criticism of Government exciting dissatisfaction feeling towards the government shall not be regarded as justifying ground for restricting the freedom of speech and expression of any individual unless said dissatisfaction may undermine national security. It can be safely concluded that in this case Supreme court promotes freedom of speech & expression and narrowed the scope of Sedition law for the general good.

TARA SINGH GOPI CHAND V. STATE 

The Punjab & Haryana High Court asserted that section 124A was used as a tool to curb the freedom of speech & expression by the Britishers during their regime and it has no role to play in independent India, hence held is Unconstitutional. 

Allahabad High Court asserted the same view in Ram Nandan V. State of Uttar Pradesh (AIR 1959 All 101, 1959 CriLJ 1) promoting freedom of speech and enabling government criticism.

Meanwhile, the most important Judgement about this issue came in 1962 in Kedarnath Singh V State of Bihar (1962 AIR 955, 1962 SCR Sulp. (2) 769) where a Supreme 5 judges Constitutional bench where all the previous judgments were overruled in this case and it ultimately upheld the Constitutionality of Section 124A. meanwhile, it was suggested that Government should not invoke this section in every case to curb the freedom of any individual and its scope was defined. The court explicitly held that ‘criticizing the Government is itself would not fall under the category of Sedition unless the said criticism is accompanied by incitement to promote hatred against the government established by the law. Seven guidelines were put forth by the Supreme court to define sedition.

The most recent case involving the said provision is Vinod Dua V Union of India (LL 2021 SC 266) where an FIR was registered against renowned Journalist Vinod Dua for criticizing the Government for the mismanagement during the Covid, the FIR was quashed by the Apex Court. Further Apex Court suggested Government amend the Sedition Law.

It is pertinent to note here that cases registered by invoking section 124A were not recorded in National Crime Record Bureau before 2014, currently, we have approx. four hundred cases invoking the said section out of which only 144 charge sheet U/S 173 of Criminal Procedure Code 1973 has been filed by the police after investigation. The conviction rate of the said section is negligible. 

The reason behind the low conviction rate can be traced to the fact that most of the cases U/S 124A of the Indian Penal Code are politically motivated. Recently we have seen how GehlotGovernment invoked the Sedition cases against their MLAs and said the decision of the Rajasthan government was widely criticized. Even Maharashtra Government invoked Sedition charges against MLAs which were ultimately quashed by the High Court.

The government has categorically asked for some time for the amendment in the Section 124A, petitioners argued in the present petition that we already have UAPA and other laws to deal with the law and order situation in the country and an Independent Democratic Country like India doesn’t need any such colonial law to curb the freedom of speech and expression of its citizens. This section is used against the journalist for curbing the criticism. If the Apex court decides to hold it unconstitutional that would result in overruling KedarNath’s judgment. The next hearing in the case would take place in the month of July and it is expected that Union Government would dilute some provisions of the said law, till then-No fresh case would be registered against any individual invoking this section and any person charged U/S 124A can approach to competent courts to get remedies.

The reason behind the low conviction rate can be traced to the fact that most of the cases U/S 124A of the Indian Penal Code are politically motivated. Recently we have seen how GehlotGovernment invoked the Sedition cases against their MLAs and said the decision of the Rajasthan government was widely criticized. Even Maharashtra Government invoked Sedition charges against MLAs which were ultimately quashed by the High Court.

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Policy & Politics

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

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

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

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

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

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

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

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

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

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

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

Answer to Question No.1: –

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

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

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

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

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

Answer to question No.2: –

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

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

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

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

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

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

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

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

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Policy & Politics

My brush with the PMO: Part I

Anil Swarup

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

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

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

***

The initial forays at the PMO weren’t very smooth

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

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

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

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

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

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

***

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

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

{Excerpts from “No More a Civil Servant”}

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But for gold, India would have become Sri Lanka

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

Vijay Darda

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Introduction

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

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

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

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

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

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

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

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

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

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

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Policy & Politics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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