“Saudi Arabia…(is) the heart of the Arab and Islamic worlds, the investment powerhouse, and the hub connecting three continents.”
~ Vision 2030
Saudi Arabia being a flag-bearer of Islam, serves as a home for more than 30 million inhabitants in which the majority (about 85 to 90 percent) includes adherents of the Sunni sect of Islam. Other sects include Shias that account as minority population and face severe persecution along with other religions like Christianity, Buddhism, Hinduism, etc. Saudi Arabia is known as the birthplace of Islam as it acts as a custodian for two holy cities of Islam – Mecca and Medina – that is why it has a major say and political legitimacy among other Muslim nations of the world. We can infer the same from a recent instance where under the chairmanship of Saudi Arabia, the OIC supported Gambia that referred genocide of Rohingya Muslims in Myanmar to the International Court of Justice (ICJ). Moreover, even the issue was referred by the Gambia to ICJ under the already provided implicit support of Riyadh.
Saudi Arabia in various instances in United Nations (UN) stated that it is committed in order to ensure the preservation of stability and the conservation of International peace and security as well as acted as a crucial partner of the US on counterterrorism. However, the progress remained slow and steady in nature, which is why various times Saudi Arabia faced international criticism stating that it supports the Islamic radicalization that leads to terrorism and impedes International stability. After the new ruler of Saudi Arabia set the stage, the country is becoming more and more liberal in nature. Recently, Saudi Arabia banned flogging as a punishment and said that convicts to be handed jail sentences and fines instead.
In another major step, recently, Saudi Arabia will introduce a new education curriculum, including textbooks of other religions, including ‘Ramayana’ and ‘Mahabharata’ of Hinduism, to expand the cultural knowledge and exposure of Saudi youth and prevent them from going on the path of radicalization. The article elucidating the importance of Saudi in the International arena, attempts to delve into the fact why this step is a crucial one that would increase tolerance among Saudi youth and encourage other orthodox Islamic nations in the world in becoming liberal. Further, it also talks about what still needs to be done so that it might not hamper international peace and stability in the future.
RELIGIOUS FREEDOM IN SAUDI ARABIA
The policies and laws of Saudi restrict religious freedom and prohibit any other religious practice in public except Islam. ‘Sunni Islam’ is the official religion, and the constitution of the country is the Quran and Sunnah (traditions and sayings of Prophet). Moreover, the Saudi government does not respect religious freedom. However, it allows Shia religious gatherings and other non-Muslim private religious practices sometimes.
Furthermore, the reports state that the Muslims that are liberal in their mindset and do not comply with the conservative rules of the Saudi government face significant political, social, legal, economic, and religious discrimination. Conservative vigilantes sometimes even harass and assault citizens and foreigners who follow other religions. Several times various human rights groups, activists, including the United States Commission on International Religious Freedom (USCIRF) have raised concerns about the same. The USCIRF has even included Saudi Arabia in the list of ‘countries of particular concern.’
Several human rights watchdogs have already severely criticized Saudi Arabia concerning the education imparted to Saudi children and youth. As per the Human Rights Watch, the [Saudi Arabia religious] texts disparage Sufi and Shia religious practices and label Jews and Christians as ‘unbelievers’ with whom Muslims should not associate themselves. Thus, in alleviating such aggravating situation, this step will play a major role not only in liberalizing the mindset of the citizens of the country but would also lead to the unleashing of the restrictions that residents of other religions as well as Islamic religions face. However, this plan is still, in theory, we have to see in the future how Saudi Arabia implements it or whether it implements the same or retracts it.
WHY THIS STEP IS CRUCIAL
As a part of Vision 2030, the introduction of significant elements of Indian cultures such as Yoga, Dharma, Karma, Ayurveda, Ramayana, Mahabharata, along with elements of Buddhism and other religions in the school curriculum, is a first step from the side of Saudi Arabia’s government to increase tolerance for other religions. Various other Islamic nations, such as the United Arab Emirates (UAE), have a few Hindu Temples allowing Hindus to profess their religion freely within the country, and further, a new Hindu temple is also constructing in Abu Dhabi. Similarly, Oman also has a few Hindu temples allowing Hindus to profess their religion. However, Saudi Arabia since time immemorial remained parochial towards other sects of Islam as well as other religions. After this step, the tolerance for other sects of Islam and religions will increase in Saudi Arabia. This step would also give a message to other nations that restrict the freedom of religion and might pave a way for them to liberalize in their mindset as well.
Moreover, this step might help Saudi Arabia in the future in enjoying more closed ties with India. Saudi Arabia is the fourth-largest partner of India in terms of economic relations. The ties with other nations such as EU countries would also get strengthened as Human Rights NGOs and watchdogs would enhance the ranking of Saudi Arabia in Religious tolerance. It will also help in boosting the tourism sector of Saudi Arabia as the individual following other religions will not fear traveling to Saudi Arabia. Foreign investment might also get increased as companies might get a conducive work environment. Further, it might also be possible that Saudi Arabia request Indian professors having good knowledge in the field of customs and traditions to train the Saudi teachers, or it might also recruit Indian professors to teach in Saudi schools. Thus, it shows that not only Saudi Arabia but various other nations of the world also get benefitted from this step.
WAY FORWARD AND CONCLUSION
Since September 11 attacks, Saudi Arabia has faced pressure from the side of the US and other western nations to reform its education curriculum after it was found that 15 out of 19 hijackers were Saudi citizens in the attacks. Thus, the major plans laid down in ‘Vision 2030’ of Saudi Arabia, including education reforms, might play an important role in transforming the country and making it to lead a new path of development. The document primarily aims to culturally as well as economically alter the problems intrinsic in the political, economic, and social system of Saudi Arabia. This step will also act as a beacon of hope for ostracized and persecuted minorities living in Saudi Arabia.
However, only this step will not uproot all the problems prevalent in Saudi Arabia, still, it has a lot to do in the realm of religious freedom. Saudi Arabia should allow the citizens of other religions residing as minorities to profess their religion publicly without any discrimination. Article 18 of the International Covenant for Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of thought, conscience, and religion. This right shall include the freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or in private, to manifest his religion or relief in worship, observance, practice, and teaching.” Saudi Arabia being a signatory of this covenant, should adhere to its principles and provide the freedoms.
Thus, this is a much appreciated and welcome step, which will help in maintaining peace and stability in international atmosphere in the near future, but there is still more to do on the part of Saudi Arabia as well as other Islamic nations. Saudi Arabia and the United Arab Emirates being two major powers of the Islamic sphere, would play a crucial role in leading this movement.
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CREATING A LEGAL FRAMEWORK FOR THE INDIAN OFFSHORE WIND SECTOR
The global boom in the offshore wind market is yet to pick up pace in India. India has plans to achieve 5GW Offshore Wind energy by 2022 and 30GW by 2030. Despite such ambitious goals, India has yet to kick-off any offshore wind farms and has been largely in the assessment phase since 2013. While it has achieved 103.05GW of renewable energy so far, it has come mainly through onshore projects, where lack of available land has now become a major constraint. Given India’s commitment at COP26 for achieving 500GW energy from non-fossil fuels by 2030, the importance of the Indian offshore wind sector (“OWS”)— considering it’s 7600 km coastline, cannot be overstated.
The slow progress in the OWS can be attributed to lack of suitable policy and legal framework. The Indian Offshore Wind Policy, issued in 2016, lays out primary steps such as facilitation by the Indian Wind Agency in obtaining permissions; and assured acquisition of power produced from such projects by the government. However, this policy does not address various supervening and foreseeable investor concerns, such as obtaining multiple permissions by the developer— culminating in longer lead times, revocation of incentives due to changing governments, lack of clarity on transferability of operating licences as well as the lack of financial subsidies. Most importantly, the policy is not backed by necessary legal provisions. For example, as per the Policy, a nodal agency would authorise development of offshore wind facilities in the Indian exclusive economic zone (“EEZ”). But, India’s EEZ Act requires that the government specifically make legal provisions for exploitation of wind energy in the EEZ. No such provision currently exists, essentially rendering void any law and nodal agency regulating offshore wind projects in the EEZ.
While introducing legal provisions to govern the OWS by amending existing law would be a quick-fix; I submit that the OWS needs a separate legal framework addressing the full length of issues in constructing, operating and decommissioning offshore projects— that facilitates investment. India’s comprehensive framework developed for oil and mineral exploration in the EEZ can be used as a model. Global forerunners such as the Netherlands, Germany, and Japan have similarly introduced precedent setting laws, catalysing the sector.
Firstly, the framework should address the concerns of investors regarding long lead times in obtaining multiple permissions. This can be solved by extending the powers of the Wind Agency from merely facilitating with other ministries to obtain permissions; to being a ‘one-stop shop’ for issuing all consent requirements, which can reduce construction time and costs of such projects.
In addition, the Wind Agency should be responsible for obtaining nominal permissions— to minimise the number of consents required by the developer. For example, the approval for connecting onshore electric substations to the offshore project, should be obtained by the Wind Agency to help developers. In order to gain such a benefit, an increased coordination between Federal and state governments would be required— as they both concurrently regulate Electricity.
Secondly, the framework should enable the transferability of operating licenses in the event of financial default. Unlike onshore wind installations, offshore installations cannot be easily moved since they are generally fixed to the seabed and taller than the Statue of Liberty! Hence, in case of default by the developer, it is easier to transfer the operating licence instead of moving such assets. This flexibility to transfer licences would reduce the reticence of lenders to finance the OWS, especially in the nascent stage. A stringent government vetting process can be established, in order to address concerns regarding the technical and financial capabilities of the successor, post such transfer.
Thirdly, the framework should ensure protection of investment by turning government incentives into codified law. For example, very recently, a binding national law had to be introduced in India after developers complained that various state governments were terminating assured renewable energy procurement agreements— causing major losses to the developers. This was despite the Federal government’s strict directives to states to adhere to their commitments and ensure uninterrupted energy procurement under power purchase agreements.
In conclusion, implementing the OWS framework will be a challenging task— especially given the current discord between major Indian political parties, which may result in the draft OWS bill not achieving the majority votes to become law; or any such law being repealed by the succeeding government. While I have highlighted the primary challenges to be addressed, several other important bottlenecks remain to be resolved. The government needs to undertake an in-depth study of the best practices in the sector to generate an erudite and well-balanced legal framework which addresses potential risks and reflects the sophistication of the international offshore wind sector, in hopes of presenting it to the Indian parliament. This will help companies such as Tata Power and RWE who are hoping to invest in India’s OWS subject to there being a proper regulatory framework.
The slow progress in the OWS can be attributed to lack of suitable policy and legal framework. The Indian Offshore Wind Policy, issued in 2016, lays out primary steps such as facilitation by the Indian Wind Agency in obtaining permissions; and assured acquisition of power produced from such projects by the government.
THE GUARDIAN OF THE CONSTITUTION
With the announcement of candidates for the office of the President of India, the battle for Raisina Hill has begun. The BJP has declared Mrs. Draupadi Murmu, a tribal leader and former Governor of Jharkhand, its presidential candidate while the opposition parties have fielded Yashwant Sinha, a former Union Minister and a retired Babu, for the highest constitutional office in the country. Sinha is a well-known critic of the Modi government who was compelled to leave the party a few years ago. It is widely believed that Mr Sinha is bound to lose given the numbers in the electoral college. So, the BJP candidate is most likely to occupy the Rashtrapati Bhavan in the last week of July this year. If elected, Mrs. Murmu will be the second woman and the first tribal President of the country. After the election, her main task will be to defend the Constitution and the laws at a time when several political parties, organizations, and individuals have complained about the misuse of central law-enforcement agencies and institutions and the President will have to face such challenges. Undoubtedly, the Constitution empowers the President to stop the violations of the Constitution.
Under the Indian constitutional scheme, practice, and several judicial pronouncements, the President of India is a constitutional head of the Union Government who is generally bound to act on the aid and advice of the Council of Ministers in the exercise of his/her constitutional powers and functions, vested in him/her by Article 53 of the Constitution, save in a few areas where he/she can act at his discretion. The Council of Ministers headed by the Prime Minister is collectively responsible to the Lok Sabha, the popular chamber of Parliament, and not to the President. The President is also an organ of Parliament. No Bill passed by Parliament can become a law unless the President gives his/her assent to that Bill. The President appoints the Prime Minister from a political party that secures the support of the majority in the Lok Sabha. In the case of a hung Lok Sabha, the President has some discretion in the government’s formation. On the advice of the Prime Minister, the President appoints other ministers and allocates them portfolios on the recommendation of the Prime Minister. If someone is ineligible to become a minister, the President can point that out to the Prime Minister who can drop such a name from the list of ministers. The ministers hold their office during the pleasure of the Prime Minister who can eject any minister at any time and the President is bound to go with the Prime Minister’s choice. The Prime Minister is the head of the Council of Ministers which can remain in office until it ceases to secure the support of the majority in the Lok Sabha. The moment the Lok Sabha expresses its lack of trust in the Council of Ministers, the President can ask the Prime Minister to resign and may invite another political party to form the government. Thus, the Lok Sabha is the lifeline of the elected government. The Council of Ministers is the supreme policy-making body in the Union. It makes all decisions and takes initiatives to bring legislative proposals. There is no need to get the prior approval of the President before making decisions. However, the Prime Minister informs the President as a courtesy to fulfil the mandate of Article 78 of the Constitution. Under this provision, the President can also seek any information about the affairs of the Union from the Prime Minister who is duty-bound to furnish him with such information. The President can also ask the Prime Minister to present the decision of any minister before the Cabinet for its approval. This provision is helpful to ensure the smooth compliance of the doctrine of collective responsibility of the government in a parliamentary democracy.
I am unable to accept the view of some constitutional pundits who opine that the President of India is a rubber stamp or merely a figurehead who acts like a robot. The President of India is not a rubber stamp at all. The Constitution allows him/her to play a significant role and he/she can certainly contribute a lot to the constitutional governance in the country. Under Article 74 of the Constitution, the President can ask the Council of Ministers to reconsider its advice once but thereafter, if the Council of Ministers reiterates its advice, the President is bound to accept the same and act accordingly. The constitutional and political pundits call it President’s Referral power. This power is exercised by the President at his discretion. This option was given to the President by the 44th Constitutional Amendment, 1978. During his tenure, then-President K. R. Narayanan exercised this option two times and saved two State Governments from Article 356 of the Constitution. Also, the President can persuade the Prime Minister to run the administration according to the constitutional provisions as the President is duty-bound to preserve, protect, and defend the Constitution and the laws as per the mandate of his/her oath of office under Article 60 of the Constitution. Article 61 of the Constitution provides a sanction for the fulfillment of the oath because, under Article 61, the President can be impeached “for violation of the Constitution”. Thus, the President cannot accept the illegal and unconstitutional advice of the Council of Ministers blindly. The President needs to apply his/her mind before approving the Cabinet’s decisions or proposals even if Article 361 of the Constitution provides immunity to the President against judicial proceedings. Article 361 cannot stop Parliament from impeaching the President.
Admittedly, the President of India needs to exercise his/her constitutional powers and functions on the advice of the Council of Ministers which remains in existence even after the dissolution of the Lok Sabha. But the President has some personal responsibility also. He/she cannot shift all responsibilities to the Council of Ministers. Renowned constitutional jurist H M Seervai rightly states that the Council of Ministers cannot compel the President to act against the provisions of the Constitution. In his famous book on the Constitution of India, Mr. Seervai gives some examples to prove this thesis. As Article 85 of the Constitution provides that: “The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session”. If the Prime Minister advises the President to call the next session after a year, by which time the government hoped to overcome its political crisis, it is the duty of the President to disregard such advice and to call for a session of the two Houses of Parliament as required by Article 85(1) of the Constitution. For he if acted otherwise, he would be violating a mandatory provision of the Constitution, for which he is liable to be impeached by Parliament. In another example, Mr. Seervai states that the President cannot ignore the opinion of the Election Commission while deciding any matter relating to the disqualification of a Member of Parliament under Article 103 of the Constitution and cannot go with the Cabinet’s advice in such matters. Thus, the President cannot violate the mandatory provisions of the Constitution while exercising his/her powers on the advice of the elected government headed by the Prime Minister.
After the three Judges’ appointment cases, the President is bound to appoint the judges of the Supreme Court and High Courts on the recommendation of the Supreme Court Collegium headed by the Chief Justice of India. If the Prime Minister advises him/her to override the collegium’s recommendation, the President can disregard the Prime Minister’s advice and has to act according to the collegium’s recommendation. This arrangement has been made by the judiciary to protect its independence from the executive. However, in many cases, the judiciary has also misused this freedom and appointed people who should never have been appointed judges. Several constitutional pundits have said on different occasions that the collegium system has promoted nepotism, elitism, and casteism in the judiciary. Unfortunately, a few privileged families of judges and lawyers, some castes, and communities have dominated the higher judiciary badly. This is not good for the health of the legal profession. The time has come when the government should take steps to examine the functioning of the collegium system and enact a law to scrap this judge-made body which has no constitutional foundation.
Given the above discussion, it is submitted that the President of India has a specific role in our constitutional system and he/she must play that role to protect the Constitution and the laws effectively remaining within the constitutional boundaries. The President is not a master of the elected government but he/she is certainly a guardian of the Constitution, a friend of the Prime Minister, and above all, a vigilant citizen who is duty-bound to protect the collective interests of the nation. He/she can guide the government and can persuade the government to act according to the provisions of the Constitution. The President may use his/her activism as and when needed to save democracy, rule of law, human rights, and dignity. The people have lots of expectations from the new tenant of the Rashtrapati Bhavan which is a very powerful building in the land of Professor Upendra Baxi, a great constitutional jurist and defender of human rights and dignity.(For more information about the constitutional powers, functions, and position of the President of India, please read Lokendra Malik, The Power of Raisina Hill, LexisNexis 2015) Let me conclude with these insightful words of Justice Krishna Iyer observed in the Samsher Singh’s case: “The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encouraged. Indeed, Article 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors i.e., the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role”.
Counsel entitled to physically accompany party to remote point while giving evidence via video conferencing: Karnataka HC
In a very significant development, we saw how just recently on 24 June 2022, the Karnataka High Court has in an extremely learned, laudable, landmark and latest judgment titled K Lakshmaiah Reddy vs V Anil Reddy & Others in Writ Petition No. 10926 of 2022 and cited in 2022 LiveLaw (Kar) 237 held in no uncertain terms that a counsel/advocate appearing for the parties are entitled to be physically present at the remote point from where the evidence of such party is being recorded through video conferencing. It must be mentioned here that a Single Judge Bench of Justice Sachin Shankar Magadum allowed the petition filed by one K Lakshmaiah Reddy who had challenged the order of the Trial Court which had declined permission that was sought by his counsel to be present at the remote point while recording of the evidence. Very rightly so!
To start with, this brief, brilliant and balanced judgment authored by a single Judge Bench of the Karnataka High Court comprising of Justice Sachin Shankar Magadum sets the ball rolling by first and foremost putting forth in para 1 that, “The captioned writ petition is filed by the defendant No.2 questioning the order dated 30.05.2022 passed on memo filed by the petitioner/defendant No.2. Under the impugned order, the learned Judge has declined permission sought by the counsel appearing for the present petitioner/defendant No.2 to be present at the remote point while recording evidence of defendant No.2.”
To put things in perspective, the Bench then envisages in para 2 that, “The present petitioner is a resident of Michigan, USA and is aged about 87 years and is suffering from various health issues. Therefore, the petitioner filed applications in I.A.Nos.27 and 28 under Rule 6 of the Video Conferencing Rules and also application in I.A.No.36 under Order 18 Rule 16 of CPC to examine the petitioner immediately. The said applications were allowed by the Trial Court thereby permitting the present petitioner/defendant No.2 and defendant No.5 to record their evidence through Video Conference. The Trial Court accordingly with the consent of parties to the suit, fixed the date of recording evidence through video conferencing on 06.06.2022. The petitioner filed memo on 25.05.2022 requesting the Court to make further e-mail correspondence towards logistic support and to inform the remote point coordinator to issue 5 entry passes to enable the petitioner to have assistance of his Advocate and also attendants.”
While stating the precise reason behind filing of petition, the Bench then specifies in para 3 that, “The contesting defendants filed statement of objections to the said memo. The learned Judge vide impugned order at Annexure-A has refused to permit the petitioner’s Advocate to be present at the remote point while recording evidence of defendant No.2. It is this order which is under challenge.”
To be sure, the Bench then states in para 14 that, “Before I advert to the controversy involved between the parties, it would be useful for this Court to refer to the relevant Rules framed by this Court which is titled as “Rules for Video Conferencing for Courts”. The relevant definitions are culled out as under:
“2(v) ‘Court Point’ means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.
2(x) ‘Remote Point’ is a place where any person or persons are required to be present or appear through a video link. 2(xii) ‘Required Person’ includes:
a. the person who is to be examined; or
b. the person in whose presence certain proceedings are to be recorded or conducted; or
c. an advocate or a party in person who intends to examine a witness; or
d. any person who is required to make submission before the Court; or
e. any other person who is permitted by the Court to appear through video conferencing.””
Needless o say, the Bench then mentions in para 21 that, “The respondents are objecting the presence of counsel at the remote point. The moot question that has to be examined before this Court is, as to whether the Court is vested with discretion to permit the counsel on record to be present at the remote point along with his client?”
It would be instructive to note that the Bench then enunciates in para 22 that, “Rule 14 refers to ‘Conduct of proceedings’. It would be useful for this Court to refer to Rules 14.1 and 14.7 which reads as under:
“14.1 All Advocates, Required Persons, the party in person and/or any other person permitted by the Court to remain physically or virtually present (hereinafter collectively referred to as participants) shall abide by the requirements set out in Schedule I.
14.7 The Court shall satisfy itself that the Advocate, Required Person or any other participant that the Court deems necessary at the Remote Point or the Court Point can be seen and heard clearly and can clearly see and hear the Court.””
For sake of clarity, the Bench then clarifies in para 23 that, “On perusal of Rule 14.1, it is clearly evident that the said Rule clearly contemplates and enables all Advocates, required persons, party-in-person either to remain physically or virtually present who are collectively referred to as participants. The only rider to the said sub-rule is that the participants are required to abide by the requirement set out in Schedule-I to the Rules. Therefore, the “Required Person” as defined under Rule 2(xii) would not necessarily mean that it is only the witness, who has to be examined, has to be physically present at the remote point. This Court is unable to understand as to how the counsel on record can be denied a right of audience at the remote point. Rule 14 clearly contemplates and permits all Advocates including required persons or party-in-person to be physically present at the remote point. Further, Rule 14.7 also gives discretion to the Court in a given case to permit the Advocate or any other participants that Court deems necessary at the remote point or Court point.”
Frankly speaking, the Bench then observes in para 24 that, “The definition “Required Person” and further persons who can be permitted to be present at the remote point as contemplated under Rule 8.11 cannot be so narrowly construed and interpreted so as to exclude a counsel. If such a proposition is accepted, that would take away the valuable rights of a client who is entitled for apt assistance by his counsel on record. It is an established tradition that a trusting relationship between a client and Advocate is necessary for effective representation. Therefore, legal assistance before a witness is examined or cross-examined plays a vital role. The counsel appearing for either of the parties are the most important actors of most court room interactions. The Advocates on record are the central influence in the court room. Therefore, personal contact between a counsel and his client stand together in Court and therefore, is deemed very important in establishing trust which would ultimately result in establishing a litigants’ faith in the legal system overall and this trust is often built by the Advocates on record who are also officers of the Court. Mere presence of Counsel of a deponent under cross-examination at remote point would result in either prompting or tutoring the witness.”
Most forthrightly, the Bench then states in para 25 that, “The definition “Required Person” under Rule 2(xii) coupled with Rule 8.11 authorizing a coordinator at the remote point to ensure that no person is present at the remote point cannot be read in isolation. The above said relevant rules have to be conjointly read along with Rules 14.1 and 14.7. A witness is entitled for legal assistance even when he is cross-examined. However, at the time of cross-examination, his counsel cannot prompt or tutor him. Based on mere apprehension, the above said rules cannot be narrowly interpreted so as to exclude the counsel on record who is an integral part of legal system and plays a vital role in dispensation of justice. The Advocates admittedly play a role as an Officer of the Court. His presence at the time of cross- examination of his witness is further more essential. It is a common fact that cross-examination often involves a battle of wits between cross-examiner and witness. At times, Advocates cross-examining the witness may have to use guile to expose the unreliability of the witness, as when the latter is lulled into a false sense of security and does not realise that he is being trapped or set up for questions which will effectively challenge him. Advocates often adopt such an approach which are essential to break the effect created by the witness in examination-in-chief or in his affidavit of the evidence in chief. Therefore, it is the counsel appearing for the witness who is subjected to cross-examination can object to the questions posed to the witness which are found to be contrary to ethical rules. In such circumstances, it is the Advocate who has to meticulously watch the proceedings of cross-examination and has to be vigilant to see that Advocate who is cross-examining does not lie or put untruths to the witness. The essence of the principle here is that the cross- examiner must not act dishonestly. He must not mislead the Court as well as the witness who is being cross-examined. Therefore, the presence of Advocate also plays a vital role when his witness is being cross-examined at the remote point. The presence of Advocate at the remote point would create a sense of security and would help him to face test of cross-examination. That cannot be misconstrued to such an extent that it would amount to prompting or tutoring. His mere presence at the remote point will not violate the Rules.”
Quite commendably, the Bench then holds in para 26 that, “Therefore, in the present case on hand, defendant No.2 is entitled to seek legal assistance even when he is being cross-examined by way of video conferencing. Using video conferencing, the defendant’s rights cannot be sacrificed in the name of procedural efficiency. The adversarial model which is adopted for several decades cannot be abandoned under the garb that the Rules relating to video conferencing does not permit. Adversarialism is a cornerstone of the legal process; the system is predicated on this tenet. Denial of legal assistance while recording ocular evidence of a witness through video conferencing violates fundamental fairness.”
In the present context, the Bench then also makes it clear in para 27 that, “Looking to the recent trend, video conferencing does have a place in the legal system. The challenge is not to exclude it but to use it responsibly. The video conferencing can produce better results, but at the same time, certain highlighted issues which may prop up down the line have to be addressed effectively. The client is entitled to seek assistance and therefore, the clients interaction with his counsel on record is quite essential to a fair trial and a person who is supposed to be cross-examined is entitled to meet his counsel ahead of time to discuss every anticipated questions, concept or a piece of evidence. The Rules that are framed by this Court governing recording of evidence through video conferencing require all participants to follow the Rules in terms of Schedule-I which is annexed to the Rules.”
As a corollary, the Bench then observes in para 28 that, “It is in this background, the proposition floated by the counsel appearing for the contesting respondents cannot be acceded to. An Advocate should always be with his client. The Rules framed by this Court do not intend to support plaintiffs team or a defence team. The counsel appearing for respective clients are entitled to stand together and the same is necessary for an attorney-client relationship to function properly. A medium that interferes with the court’s main mission should be eliminated.”
Quite forthrightly, the Bench then also clearly states in para 29 that, “The contesting parties are entitled to have a discussion with their Advocates on record as they need to discuss important decisions concerning vital documents, basic legal strategy prior to appearing in Court. Personal meetings are better for hastening out case strategies, fact gatherings and basic legal tactics. Therefore, it is in this context, if the proposition of respondents is accepted and if counsel appearing for a witness who is supposed to be cross-examined is denied a right of audience at a remote point, the apprehension that the ocular evidence recorded through video conferencing will not satisfy the prescribed requirements of a fair trial and the same would create a doubt in regard to legitimacy of a legal process may turn out to be a hard reality. Therefore, denial of right of audience to a counsel on record has its own ramifications and may result in violation of fundamental fairness and may also have impact on due process of law.”
Furthermore, the Bench then states in para 30 that, “By introducing technology and by bringing in recording of ocular evidence through video conferencing, an attempt is made in all good faith to meet the standards of face-to-face trial. By bringing in new Rules, the Courts have to meet the established standards and traditions in recording evidence physically in the open Court. The dignity and ritual of physical presence in the Court was found to be absolutely necessary for public perception of justice. A very ceremony of trial and presence of fact finder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Now in a given case, where parties consent to record ocular evidence through video conferencing has to meet the above said standards. There is an apprehension that non-verbal cues are unavailable or harder to read when associated with video conferencing. Therefore, the presence of counsel of a witness to be cross-examined at a remote point becomes further more essential.”
What’s more, the Bench then stipulates in para 31 that, “In the light of the discussions made supra, now let me see whether the Court is vested with discretion to permit the counsel appearing for a witness who is supposed to be cross-examined to be present at the remote point. The remote point has to be considered as an extended court room. A Court includes a physical court and a virtual court and if a Court can have court point at one or more place, then the Rules clearly prescribe that the counsel on record can be present at all point either in the Court physically or through a video link or at a remote point physically. Rule 14.1 clearly contemplates persons who are entitled to participate in court proceedings. Rule 14.1 clearly indicates that all Advocates and required persons are entitled to remain physically or virtually present. A discretion is also vested with the Court under Rule 14.7 and it is well within the discretion of the Court in a given set of facts to permit Advocate, required person or any other participants that court deems necessary at the remote point or at the court point. If at all any mischief is played during the course of recording evidence, the Court is better placed to hold an enquiry in regard to any mischief that would be complained.”
Of course, the Bench then rightly points out in para 32 that, “Unlike face-to-face hearing, a Judge has a privilege of replaying the recording and find out as to whether the witness is hoaxed or tutored. The court can also examine whether counsel on record has interfered and assisted the witness under cross-examination. The guidelines set out in Schedule-I coupled with Rule 5.6.4 clearly provides adequate protection. It is in this background, this Court would find that the apprehension of the respondents and objections raised in regard to entitlement of counsel on record to be physically present at remote point appears to be misconceived.”
Most significantly, the Bench then lays down in para 33 that, “If the order under challenge is tested in the light of the above said discussions made supra, this Court is of the view that the order under challenge is not at all sustainable. Mere bald allegations that if the counsel is permitted to be physically present at remote point, then every possibility of petitioner getting prompted, tutored or coaxed cannot be acceded to and such an objection is not at all sustainable. In fact, Rule 14 which lays down guidelines for conducting proceedings through video conferencing clearly contemplates and authorizes all Advocates to be present physically at remote point. A discretion is also vested with the Court in a given set of facts to permit the counsel or any other unconnected participants to be physically present at the remote point. It is in this background, this Court would find that the learned Judge erred in not exercising discretion judiciously. Therefore, the finding of the learned Judge that counsel appearing for the present petitioner/defendant No.2 is already present at the remote point and he can join recording of evidence by joining the link does not satisfy the requirements of a fair trial. The learned Judge erred in not exercising judicial discretion by permitting the counsel appearing for defendant No.2 to be physically present at the remote point.”
In addition, the Bench then also most commendably notes in para 34 that, “If a coordinator at the remote point is already available and if the entire ocular evidence is video recorded, any slight mischief can be easily taken notice of and the consequences would follow if the counsel contravenes any of the courtesies and protocols applicable to a physical Court. Therefore, I am of the view that the counsel appearing for the defendant No.2 is entitled to be physically present at the remote point.”
Finally, the Bench then concludes by holding in para 35 that, “For the reasons stated, supra, I pass the following:
(i) The writ petition is allowed;
(ii) The impugned order dated 30.05.2022 passed in O.S.No.66/2016 on the file of the III Additional City Civil & Sessions Judge, Bengaluru is set aside. Consequently, the memo dated 25.05.2022 filed by the petitioner/defendant No.2 is allowed;
(iii) The coordinator at the remote point shall ensure that while recording evidence of the petitioner/defendant No.2, the persons who are permitted to be present at the remote point will not indulge in interfering with his cross-examination;
(iv) Before commencing with the recording of evidence of petitioner/defendant No.2, the Court shall satisfy itself that the counsel appearing on behalf of petitioner/defendant No.2 can be seen and heard clearly at the remote point;
(v) The Court shall also monitor and take all necessary precautions that recording of ocular evidence of petitioner/defendant No.2 is conducted by strictly following the Rules.”
In essence, the Karnataka High Court has thus made the entire picture pretty clear in this notable judgment about counsel being entitled to physically accompany a party to remote point while giving evidence via video conferencing. We have already discussed it in detail. It merits no reiteration that all the courts must definitely pay heed to what the Karnataka High Court has held so very explicitly in this leading case!
Accused can’t be convicted for charge which is not framed by trial court, says Karnataka HC
It is worth mentioning that the Bench then observes in para 23 that, ‘Having heard the respective counsel and also on perusal of the material available before the court, the trial court imposed a fine of Rs 4,000 each and accordingly, accused No.1 deposited the fine amount and whether the accused No.2, the revision petitioner herein, has deposited the amount or not is not forthcoming. Admittedly, this petitioner has also not challenged the same in any appeal before the Appellate Court i.e., the sentence of fine imposed by the trial court’.
While fully, firmly and finally espousing the legal right of the accused, the Karnataka High Court in an extremely learned, laudable, landmark and latest judgment titled M Ajithkumar vs The State By Food Inspector, Koppa in Criminal Revision Petition No. 1527/2016 and cited in 2022 LiveLaw (Kar) 234 that was pronounced finally on June 24, 2022 has set aside the conviction that was handed down under the Prevention of Food Adulteration Act by the Trial Court for a charge which it did not frame against the accused and remanded the matter back to be considered afresh. A Single Judge Bench of Justice HP Sandesh while allowing the petition filed by one M Ajithkumar said that, “There is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act. The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence.” We thus see that the Karnataka High Court very rightly sets aside the conviction and sentence order passed by the court below.
To start with, this refreshing, remarkable, robust and rational judgment authored by a Single Judge Bench of Hon’ble Mr Justice HP Sandesh sets the ball rolling by first and foremost putting forth in para 1 that, “This criminal revision petition is filed under Section 397 of the Code of Criminal Procedure, 1973 praying this Court to set aside the judgment passed by the Civil Judge and JMFC, Koppa dated 24.04.2013 in C.C.No.451/2008 and also set aside the judgment dated 09.11.2016 passed in Crl.A.No.233/2013 by the Principal District and Sessions Judge, Chikkamagaluru and acquit the revision petitioner for the offences alleged against him and grant such other relief as deems fit in the circumstances of the case.”
While elaborating on prosecution case, the Bench then states in para 2 that, “The factual matrix of the case of the prosecution is that the Food Inspector, Koppa has visited the shop belonging to the accused No.1-M. Umar on 16.02.2008 situate at Koppa and inspected the food articles and examined 20 packs each containing 200 miligrams of sungift refined cooking oil and found that there is adulteration in the said oil and noticed that the said oil was supplied by the revision petitioner and filed the complaint against the accused persons stating that they have violated Section 7(2) of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and thereby committed the offence punishable under Section 16(a)(i) of the said Act.”
Needless to say, the Bench then specifies in para 3 that, “Based on the complaint, cognizance was taken against this revision petitioner and accused No.1 and both of them not pleaded guilty. Hence, the prosecution, in order to prove their case, examined P.Ws.1 to 4 and relied upon the documents Exs.P1 to P13(a) and two memo of objects were marked as M.Os.1 and 2 containing sungift refined cooking oil.”
To put things in perspective, the Bench then envisages in para 4 that, “The Trial Court, after considering both oral and documentary evidence placed on record, convicted both the accused and imposed sentence of fine of Rs.4,000/- each, failing which they are liable to serve the sentence of simple imprisonment for seven months. The accused No.1 paid the fine amount and the prosecution also challenged the inadequate sentence and filed appeal in Criminal Appeal No.233/2013 and the First Appellate Court reversed the judgment of the Trial Court and imposed sentence of six months vide judgment dated 09.11.2016. Hence, the revision petitioner-accused No.2 has filed this revision petition.”
As we see, the Bench then stipulates in para 22 that, “Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are:
(i) Whether the revision petitioner has made out a ground to exercise the revisional jurisdiction to set aside the orders passed by the Trial Court as well as the First Appellate Court?
(ii) What order?”
It is worth mentioning that the Bench then observes in para 23 that, “Having heard the respective counsel and also on perusal of the material available before the Court, the Trial Court imposed fine of Rs.4,000/- each and accordingly, accused No.1 deposited the fine amount and whether the accused No.2, the revision petitioner herein has deposited the amount or not is not forthcoming. Admittedly, this petitioner has also not challenged the same in any appeal before the Appellate Court i.e., the sentence of fine imposed by the Trial Court. However, the State has filed an appeal before the First Appellate Court on the ground of inadequate sentence. Hence, the Appellate Court modified the sentence of simple imprisonment for a period of six months, instead of fine of Rs.4,000/-.”
No doubt, the Bench then rightly points out in para 24 that, “The first and the foremost contention of the learned counsel for the revision petitioner before this Court is that there was no adulteration and it was only a misbranding. The counsel also relied upon the document Ex.P10 i.e., the report received from the Divisional Public Analyst cum Regional Assistant Chemical Examiner, Mysuru Division, N.P.C. Hospital Compound, Nazarbad, Mysuru, wherein it is opined that the sample sent for analyst is not adulterated but, it is misbranded wide label-3(e) and the said report is given on 6th day of March, 2008. On perusal of the records of the Trial Court, it is seen that the charge was framed on 18th August, 2011 subsequent to receipt of the report. On perusal of the charges, it is seen that the trial Judge has framed the charge for the offence under Section 7 of the Act, particularly, Section 7(1) in respect of adulteration of food and Section 7(2) is in respect of misbranding food. The charge has been framed for the offence under Section 7(1) i.e., adulteration of food and that is not the case of the prosecution and the case of the prosecution is misbranding.”
Be it noted, the Bench then most commendably enunciates in para 25 that, “On perusal of the complaint which is dated 8th July 2008 particularly, page No.2 in the bottom, it is stated that the information given in the packet is erroneous and also referred that the report of the analyst is misbranded and categorically mentioned in page No.3 that there is violation of Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. However, the allegation against this petitioner is that he has not issued cash bill in terms of Section 14 of the Act and he had distributed the oil packet, wherein also specifically mentioned that the petitioner has violated Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. But, the trial Judge has framed the charge for the offence under Section 7(1) of the Act and not for the offence under Section 7(2) of the Act. It is also important to note that the complaint dated 8th day of July, 2008 is subsequent to the receipt of the report from the analyst which is marked as Ex.P10 which is dated 6th day of March, 2008. Hence, it is clear that the report is received on 6th day of March, 2008 and complaint is filed in the month of July i.e., 8th day of July, 2008 and inspite of it, though allegation is in respect of Section 7(2) of the Act, the Trial Court framed the charge for the offence under Section 7(1) of the Act. Hence, very framing of the charge itself is erroneous.”
Most forthrightly, the Bench then mandates in para 26 that, “It has to be noted that the trial Judge, even while passing the judgment invoked Section 7(2) of the Act punishable under Section 16(a)(i) of the Act and not altered the Section from 7(1) to 7(2) of the Act. It is also rightly pointed by the learned counsel for the revision petitioner that no notice was given to invoke Section 7(2) of the Act and though the same is noticed by the Trial Court, the charge has been framed for violation of Section 7(1) of the Act and punishment was provided for the violation of Section 7(2) of the Act. Hence, there is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act. The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence. Hence, the very judgment of the Trial Court as well as the First Appellate Court requires to be set aside on the ground that the charge has been framed for violation of Section 7(1) of the Act and conviction and sentence has been passed for violation of Section 7(2) of the Act.”
Most significantly, the Bench then holds in para 27 that, “The other contentions of the learned counsel for the revision petitioner are that, no authorization to file any complaint and the delegatee also cannot delegate the powers. He also would contend that no notification was produced regarding appointment of Food Inspector and the independent witnesses have not been examined. It is also his contention that non-furnishing of report of Public Analyst and misbranding of label does not require any opinion from the Public Analyst. When charge has not been properly framed and conviction and sentence is passed for in respect of violation under Section 7(2) of the Act, it is appropriate to set aside the judgments of both the Trial Court as well as the First Appellate Court by keeping open the other contentions of the learned counsel for the revision petitioner and remand the matter to the Trial Court for framing appropriate charges and consider the matter afresh. If need arises, the Trial Court shall also permit the prosecution as well as the revision petitioner to adduce evidence before the Trial Court since, proper charge has to be framed and an opportunity has to be given to the revision petitioner to meet the case of the prosecution and unless the charge is specific, meeting the case of the prosecution by the defence is also very difficult. Hence, the judgment and sentence passed by the Trial Court as well as the First Appellate Court is not legally sustainable in the eye of law and it requires fresh consideration. Accordingly, I answer point No.(i) as ‘affirmative’.”
Finally and far most significantly, the Bench then concludes by holding in para 28 that, “In view of the discussions made above, I pass the following:
(i) The criminal revision petition is allowed.
(ii) The judgment passed by the Civil Judge and JMFC, Koppa dated 24.04.2013 in C.C.No.451/2008 and the judgment passed by the Principal District and Sessions Judge, Chikkamagaluru dated 09.11.2016 in Crl.A.No.233/2013 are set aside. The matter is remanded to the Trial Court to consider the matter afresh in accordance with law within a period of six months, since the matter is of the year 2008.
(iii) The revision petitioner and the prosecution are directed to appear before the Trial Court on 25th July, 2022 without expecting any notice.
(iv) The respective parties are directed to assist the Trial Court in disposal of the case within the stipulated time.
(v) The Registry is directed to transmit the records forthwith to the concerned Court.”
In a nutshell, the Karnataka High Court has thus not left even a straw of doubt to make it indubitably clear that the accused can’t be convicted for a charge which is not framed by the Trial Court. It merits no reiteration that all the Courts must definitely pay heed to what the Karnataka High Court has held in this leading case. Of course, we thus see that the matter has been very rightly remanded to the Trial Court to consider the matter afresh in accordance with the law within a period of six months, since the matter is of the year 2008 as mentioned above. No denying it.
Be it noted, the Bench then most commendably enunciates in para 25 that, “On perusal of the complaint which is dated 8th July 2008 particularly, page No.2 in the bottom, it is stated that the information given in the packet is erroneous and also referred that the report of the analyst is misbranded and categorically mentioned in page No.3 that there is violation of Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. However, the allegation against this petitioner is that he has not issued cash bill in terms of Section 14 of the Act and he had distributed the oil packet, wherein also specifically mentioned that the petitioner has violated Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act”.
Friendly relations not consent to establish physical relations: Bombay High Court
The complainant herself has narrated the repeated incidents when they indulged in sex, on an assurance by the applicant that he is going to marry her. The complainant conceived and was found to be carrying six weeks’ pregnancy. She immediately contacted the applicant, but he refused to take up any responsibility and, on the other hand, blamed her for her ‘bad character’ and alleged that she is in relationship with some other person. Repeatedly, she kept requesting the applicant to marry her, but he refused.
While clearly drawing the red lines most distinguishably for boys in cases of establishing physical relations with a girl, the Bombay High Court in an extremely commendable, cogent, courageous and composed judgment titled Ashish Ashok Chakor vs State of Maharashtra in Anticipatory Bail Application No. 1676 of 2022 as recently as on June 24, 2022 in exercise of its criminal appellate jurisdiction minced just no words to hold that a girl merely being friendly with a boy doesn’t allow him to misconstrue it as her consent to establish a sexual relationship with her and rejected the anticipatory bail application of a man accused of impregnating a woman under the pretext of marriage. It must be mentioned here that the Single Judge Bench of Hon’ble Smt Justice Bharati Dangre rejected the pre-arrest bail that was filed by one Ashish Chakor who was accused of raping a woman under the pretext of marriage and booked him under Sections 376(2)(n), 376(2)(h) and 417 of the IPC. No doubt, this extremely laudable judgment by the Bombay High Court should serve as a very loud and strong message to all males that they cannot hide under the guise of friendly relations to develop physical relations with any female and if they dare to do so then they must be prepared to face the horrendous consequences by finding themselves landing in jail for a good number of precious years thus spoiling their whole life!
To start with, this recent, refreshing, robust, remarkable and rational judgment authored by a single Judge Bench of the Bombay High Court comprising of Hon’ble Smt Justice Bharati Dangre sets the ball rolling by first and foremost putting forth in para 1 that, “The applicant is apprehending his arrest in C.R.No.462 of 2022 lodged with M.H.B. Colony Police Station for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the IPC. The complainant is a girl aged 22 years, who was briefly acquainted with the present applicant. Somewhere in the year 2019, when she alongwith her friend had visited a residential premises of a third friend, the applicant is alleged to have committed forcible sexual intercourse with her. When she opposed, he expressed that he likes her and in any case, he is going to marry her. Thereafter, on multiple occasions, the act was repeated. The complainant herself has narrated the repeated incidents when they indulged into sex, on an assurance by the applicant that he is going to marry her. The complainant conceived and was found to be carrying six weeks’ pregnancy. She immediately contacted the applicant, but he refused to take up any responsibility and on the other hand, attributed her a bad character and alleged that she is in relationship with some other person. Repeatedly she kept requesting the applicant to marry her, but he refused.”
On the face of it, this prima facie reflects that the men himself is at fault and he had no business to indulge in physical relationship with her. Not just this, he even promised to marry her but later retracted. This clearly demonstrates that he is culpable and cannot be exonerated for what he has done so very wrongly!
Truth be told, the Bench then mentions in para 2 that, “Upon such a complaint, referring to the incidents occurring between 17/05/2019 to 27/04/2022, the complaint has been lodged. As far as the last incident is concerned, even on 27/04/2022, the complainant states that he had forcibly committed sexual intercourse with her.”
To be sure, the Bench then brings out in para 3 that, “Reading of the complaint would reveal that the girl, who is major, developed a liking for the applicant, but her version as far as the sexual relationship is concerned, is that she permitted it, since the applicant gave a promise of marriage. The sexual relationship was established on multiple occasions on the promise of marriage. However, when the girl conceived, the applicant attributed infidelity, but once again committed forcible sexual intercourse with her on the last date as mentioned in the complaint.”
Finally and far most significantly, the Bench then minces just no words to hold so very rightly in the last para 4 that, “Merely sharing friendly relationship with a girl do not permit a boy to take her for granted and construe it as her consent to establish physical relationship. In today’s society when a man and woman are working together, it is quite possible that proximity may develop between them, being either mentally compatible or confiding in each other as friends, ignoring the gender, since friendship is not gender based. However, this friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. Every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection. Here is the applicant, who is accused of maintaining sexual relationship on the pretext of marriage, but when the complainant conceived, he walked out alleging that pregnancy carried by her is on account of her relationship with other persons. The accusations faced by the applicant definitely require a thorough investigation to ascertain the version of the prosecutrix that she was forced to give her consent for sex. The application is rejected.”
In conclusion, the Single Judge Bench of the Bombay High Court comprising of Hon’ble Smt Justice Bharati Dangre has been forthright enough to hold that this friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. It is also very rightly held that every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection. We thus see that the anticipatory bail application of the men is thus rightly rejected as he took undue advantage of friendly relations to establish physical relations and gave false assurances of marriage which cannot be condoned. So it merits no reiteration that he had to face the consequences and the same was accordingly ensured by the Bombay High Court in this leading case so very rightly! No denying it!
It must be mentioned here that the Single Judge Bench of Hon’ble Smt Justice Bharati Dangre rejected the pre-arrest bail that was filed by one Ashish Chakor who was accused of raping a woman under the pretext of marriage and booked him under Sections 376(2)(n), 376(2)(h) and 417 of the IPC. No doubt, this extremely laudable judgment by the Bombay High Court should serve as a very loud and strong message to all males that they cannot hide under the guise of friendly relations to develop physical relations with any female and if they dare to do so, then they must be prepared to face the horrendous consequences by finding themselves landing in jail for a good number of precious years, thus spoiling their whole life.
Bharat Ratna moments
Enormous opportunities for deriving a sense of satisfaction.
I had mentioned in my book ‘Ethical Dilemmas of a Civil Servant’ that “I love to look back upon the years gone by with utmost satisfaction. I loved every moment of it”. There is also an explanation in the book about the reason for this ‘enjoyment’. I have used the term “kick” as the cause of this enjoyment. There were many such occasions during my career when I enjoyed this “kick”, my Bharat Ratna moments and some of these have been outlined in the first two books, “Ethical Dilemmas of a Civil Servant” and “No More a Civil Servant” that I authored. One such illustration is given below:
I was on a visit to the World Bank for a presentation before a select audience on the Rashtriya Swasthya Bima Yojana (RSBY, the national health insurance scheme that was launched in 2007 and the one that has now morphed into Prime Minister’s Jan Aarogya Yojana, PMJAY). During this visit to the US, a Washington-based organisation—Brookings Institute invited me to talk about the scheme to another set of audience comprising government representatives, non-governmental organisations and some funding agencies like the Bill Gates Foundation. The presentation went smoothly, and was apparently received well. However, what is etched in my memory is the conversation with a representative of a foundation during the tea break. The question he posed was quite simple, ‘‘Mr Swarup, why are you so passionate about the scheme? What are you getting out of it? What is the government giving you beyond your salary?’’ My response took a while. It was clear that, during my presentation, I had conveyed a level of commitment to the scheme that was beyond the expectation of a thoroughbred bureaucrat. I asked him, “What do you get when you part with millions of dollars to help the poor in developing countries?” His reply did not surprise me, “That is our job and our purpose. We additionally get a lot of good wishes from those that are assisted by us.” He now awaited my response. My answer was simple, “I am better off than you. I don’t spend a single penny from my pocket, yet all the good wishes and blessings from the poor benefitting under the scheme come back to me. What could be a better motivation!’ and then I narrated an incident to illustrate my point.
“Beta, idhar aao,’ (Come here, my son) — a feeble voice called me as I stood in a Delhi hospital. I was there to check in on a patient. Turning around I found an old lady lying in a bed nearby. She waved and signalled me to come over to her. As I approached, I saw an emaciated figure that looked weak and haggard. She tried to get up, but could not. The pain was writ large on her face, but she greeted me with a smile. Someone had told her that I was associated with the Rashtriya Swasthya Bima Yojana. She had the RSBY smart card in her hand and she was flashing it to me. As I enquired about her welfare, she confessed that she was in pain, but conveyed her appreciation for the hospital staff that had looked after her very well despite her inability to pay a single penny to them. She seemed resigned to her fate as she admitted that time had come for her to meet the Almighty. But I wasn’t prepared for what came next. She was all praise for the scheme and she said that she would convey this to the Almighty when she would meet Him and seek His blessings for the scheme. Gradually she gathered the strength to sit up and raised her hand to bless me. It was a Bharat Ratna moment for me. The scheme has won several awards, but this one was the best.
The scheme, RSBY covered 300 million poorest of the poor in the country. Many of whom actually benefitted and some of whom would have been dead but for the scheme. As an IAS officer I had the opportunity to visualize, conceptualize, articulate and implement this scheme that came to be recognized by institutions like the World Bank that considered it as a “model of good design and implementation with important lessons for other programmes in India”. United Nations Development Programme (UNDP) and International Labour Organization (ILO) recognized the scheme as one of the top social security schemes in the world.
There are many opportunities for such recognition and sense of satisfaction in other jobs as well but in the IAS there is such an opportunity available in most of the assignments. To me these are Bharat Ratna moments. This is what makes it different from other jobs. However, a lot depends upon the officer concerned. As I write in ‘Ethical Dilemmas of a Civil Servant’, the inspiration for exploring avenues to derive satisfaction has to come from within. This inspiration can be sought from such officers who have managed to succeed and serve the country and its people despite some adverse set of circumstances. Many such examples have been given in my recently released book, “No More a Civil Servant”. These examples relate to the good work being done by officers, organizations and NGOs in their respective domains despite all the problems. The onus lies on the civil servant himself to resolve the dilemma that he faces while keeping his dignity and self-respect intact, as he, like any other individual, has no control over the others. The control that he has is over himself. And, hence, he has to focus on himself. He has to evolve in a manner that those who want to corrupt him aren’t able to muster courage to do so. His conscience and ethics must be his firewall. It is difficult but it has been done. Hence, it can be done.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
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