The economic package announced by the Prime Minister to grapple with the fall out of COVID crisis is well intentioned. As a part of this package Rs 90,000 crore have been earmarked for assistance to state-run power distribution companies (DISCOMS). This too is welcome as it will provide some fiscal space to these extremely stressed entities that have been stressed further on account of COVID. However, such space has been given repeatedly in the past but has not been able to take care of perineal crisis that besets the power sector. Ujjwal DISCOM Assurance Yojana (UDAY) was the last such attempt that didn’t travel the distance it should have.
In 2014 when NDA came to power, the power sector was in serious trouble. The Non-Performing Assets (NPAs) amidst the power generating companies were mounting. There was an acute shortage of coal. The Plant Load Factor (PLF) that determined the utilisation of the capacity of power plants was down. Most of the power distribution companies (DISCOM) were in bad shape. UDAY was launched against this backdrop to provide the much- needed relief. It was a brilliant idea. It was a framework (except the monetary package as Gujarat managed it without financial restructuring envisaged in “UDAY”) that had worked in Gujarat. And if any model from Gujarat merited replication in other parts of the country, it was this one that had brought about a turnaround in the power sector in that State. ‘UDAY’ was the instrument created to implement this model in the rest of the country to deliver that.
Under the scheme, States were to take over 75% of DISCOM debts as on 30th September 2015. This was to ease the fiscal burden of the DISCOMs and to ‘improve’ their balance sheets. However, what was even more important was the other part of ‘UDAY’ that didn’t come to be highlighted or pushed. This included critical activities like a reduction of AT&C losses, elimination of ACSACR gap, feeder metering, DT metering etc. The debt transfer was supposed to provide fiscal space and time to DISCOMs to carry out the more critical part that could revive the DISCOMs in the medium term.
Almost all the DISCOMs got on board and utilised the facility of transferring the debt to the State Government. This improved the financial health of DISCOMs and some of them even showed profits. However, it raised the debt burden of the States quite substantially and would hurt them in the near future. Economic Survey of 2018 revealed that “due to these bonds, the State’s Gross Fiscal Deficit to GDP Ratio got increased by 0.7%”. Most of the DISCOMs failed to carry out mandates relating to the reduction of AT&C losses, elimination of ACS-ACR gap and the like. Ironically, out of all UDAY states, 13 states actually reported higher AT&C losses as compared to the previous year.
The focus of ‘UDAY’ was primarily on fiscal restructuring. It was indeed a necessary condition but not a sufficient one. States were ‘mandated’ to carry out the second and more ‘essential’ part of the deal but perhaps the manner in which this part of the ‘mandate’ should have been carried out was not being done. ‘Monitoring’ systems were put in place but the ‘facilitating’ mechanism for the States was not set up. Little effort was made to understand the problems of the States. They could have learned from States like Gujarat (where UDAY had happened well before ‘UDAY’ was launched by the Centre) and tried to replicate its model. A lot of time was spent on fiscal restructuring. Equal, if not more, time should have been spent on understanding how AT&C losses were reduced and how the ACS-ACR gap was reduced in a state like Gujarat and how it could be adopted by other States.
Most of the DISCOMs continued to be in trouble. The fundamental issues remained unaddressed. Moreover, as mentioned earlier, States were saddled with greater debt. On account of such poor financial condition of DISCOMs, no new PPAs were being floated even though there was a demand for power. (Incidentally, the per capita consumption of power in India is one of the lowest in the world and equivalent to the consumption in the late 19th and early 20th century in the US.) There was demand but the DISCOMs did not have the money to buy power. Above all, the more they sold, the more they lost. This ‘lack of demand’, in turn, impacted the health of the power generating companies.
DISCOMs had previously been turned around in India. PM Modi, in his previous capacity as CM Modi had proved that good economics is also good politics. What was really needed to be understood was the intricacies of the Gujarat version of ‘UDAY’ those led to its successful implementation in the State. Separate feeder lines, auditing, strong action against defaulters, and pricing were some of the issues that should have been addressed. Had adequate time and effort been allocated to imbibe these learnings, then the project would not have provided material for media headlines! Officials from other States should have sat down with those from Gujarat and after understanding the ‘how’ of this success story, made out their own modus operandi. There is no doubt that these plans could not have been made in Delhi or monitored from here. Intensive discussions should have been held with all the stakeholders to get them to buy-in. This was critical for the success of not just any but also of this plan. If it could happen in Coal, it could have happened in Power as well. The DISCOMS should and could have been turned around in the interest of the nation. But alas, that was not to be. COVID crisis and the consequent financial assistance by the central government provides yet another opportunity for the DISCOMS to set their house in order. Commitment, indulgence and cooperation are the key. The focus has to shift from hitting the headlines to brass tacks, to making things happen on the ground.
Anil Swarup has served as Secretary, Ministry of Coal. During his tenure the first ever Coal Auctions were conducted. An IAS officer, he has also served as Secretary, Ministry of School Education and as head of the Project Monitoring Group (PMG), which is presently under the Prime Minister’s Office.
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Supreme Court issues notice on plea to allow NRIs to vote in elections from abroad
The Supreme Court in the case Kerala PravasiAssociation And Anr. v. UoI And Anr observed and has issued a notice in a petition seeking directions to the Central Government to permit citizens residing outside India to exercise their franchise, under Section 20A of the Representation of the People Act, 1950 (1950 Act), from their employment or place residence. Thus, the petition asks for external modes/alternate options to be provided to citizens residing outside India for exercising their right to vote, without insisting on their physical presence in their respective polling stations on the day of polling in India.
The present matter was listed before the bench of Chief Justice of India NV Ramana, Justices J.K. Maheshwari and Hima Kohli.
In this case, the petitioner is Kerala Pravasi Association, an organization with the primary objective of providing justice and welfare to the expatriates. It was submitted by the petitioner that while Section 20A of the 1950 Act provides special provisions for citizens of India residing outside India for exercising their franchise, the object purpose of the legislation stands defeated as there is no corresponding provisions in the Rules under the 1950 Act to allow citizens to vote without being physically present in the polling stations of their respective constituencies in India. As per the petition, the discrimination is created between the overseas electors who have the ability to be physically present in the constituency for the election and those who are unable to leave their education, employment etc. to be in the constituency at the relevant time.
It was submitted by the petitioner that the provisions of Representation of the People (Amendment) Act, 2010 (2010 Act) which mandates that Non- Residents of India (NRIs) are to be physically present in their constituencies to exercise their right to cast vote in elections is violative of the Fundamental Rights as enshrined under Article 14, Article 19 and Article 21 of the Constitution of India.
It was stated in the petition that the key objectives of the 1950 Act, as per the Statement of Objects and Reasons of the 2010 Act, are to boost the involvement of citizens who are living abroad and to recognise their right to vote as their legitimate right. Therefore, the Rules under the Act fail in ensuring the involvement of the citizens living abroad and deny them their Right to effectively exercise their franchise.
Further, the petition also states that Section 20A of the 1950 Act arbitrarily classifies and distinguishes Non-Resident Indians who are physically present in their constituencies from those who are not physically present and confers the right to cast votes on the former category and that such right does not have a rational nexus with the object sought to be achieved by the Legislation.
Also, the petition highlights the social divide created by this provision and submitted that Section 20A of the 1950 Act creates a deep divide amongst the NRIs based on the financial conditions and economic strata as only those who are financially stable would be able to travel and can cast their vote physically.
The court, while stating that free, periodical and fair election is the substratum of democracy. The plea filled prays for alternative methods to cast votes and stated that It is necessary that new and alternative methods of casting one’s vote are given effect to ensure maximum participation. It is submitted that the right to vote electronically has been recognized and approved by the Parliament as a means to represent one’s rejection/approval, and to ensure wider participation of the stakeholders in the decision-making process.
The petition also highlights the example of the amendments to Section 108 of the Companies Act, 2013 read with Rule 20 of the Companies (Management and Administration) Rule, 2014, which provided an opportunity to the shareholders to exercise their right to vote by the electronic means on the resolutions placed before the general body meeting of a company without being present physically.
Accordingly, it was stated that the principle of universal suffrage can only be fully achieved if citizens living abroad are entitled to vote in the elections of their home country.
MENTAL CRUELTY AND BREAKDOWN OF MARRIAGE
‘Comparing wife with other women and belittling her amounts to mental cruelty’.
Recently, the Kerala High Court granted divorce to a couple on the ground of cruelty under the Divorce Act, 1869 . Two interesting issues emerge from this judgment – (i) the manner in which the court went about examining whether a case of mental cruelty was made out (ii) the need to recognize irretrievable breakdown of marriage as a ground for divorce.
While examining the issue of cruelty, the Court referred to various judgment of the Supreme Court to hold that determination of cruelty is on a case by case basis depending on the type of life the parties are accustomed to as well as their socio-economic conditions. The Court also reiterated an important point that intention is not an essential element to prove cruelty if “by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty”.
In this case, the wife alleged that the husband continuously belittled her by comparing her to other women. He told her that she was not a “wife of his expectations” because she was not “cute” like certain other women he had met. His actions caused humiliation to the wife and strained her health. The Court rightly went on to hold that the conduct of the husband constituted cruelty.
Courts have time and again held that cruelty need not be only physical and includes mental cruelty. However, as a society, we have a tendency to attach far greater weight to physical cruelty because it is visible.
I must add that the problem runs far deeper than the issue of visibility. It is often difficult for families and even judges to accept certain conduct as ‘cruelty’ because we are socially conditioned to make many concessions for a husband’s transgressions in a marriage.
Women, from a young age, are told to centre their lives around the needs and wants of their spouse. Many actions by husbands which demean the confidence of their wives and breach their trust are socially accepted to maintain the peace of the marital home. Even within the legal space, many concessions are made for the husband’s actions in the name of the ‘sacrosanct’ nature of marriage.
Consequently, this judgment is important because the Court refused to condone the actions of a husband who damaged the self-confidence of his wife and impacted her peace of mind.
The other important point raised in this case concerns irretrievable breakdown of marriage. While the Court noted that irretrievable breakdown of marriage is not a ground for dissolution of marriage, it also went on to hold that it has not been able to reconcile the differences between the parties. In the facts of this case, the Court did not find any emotional bond between the parties. Referring to the Supreme Court judgment in Naveen Kohli v. Neelu Kohli (2006), the Court also observed that law cannot turn a blind eye to a situation which is causing misery to the parties.
In my opinion, individuals in unhappy marriages have the right to be liberated, albeit, only after there has been a proper discharge of the responsibilities of the economic and social well-being of the family that is formed as a trust unit resulting from the marriage.
Till the time the legislature does not amend the statutes, the Courts should dilute the rigor of the application of “marital fault” as a ground for a divorce to the lowest threshold and proceed to decide the two issues that are really the core of matrimonial disputes: custody and finances.
The judgment of the Delhi High Court in Sandhya Kumari v. Manish Kumar (2016) is relevant wherein the Court called for blending cruelty with irretrievable breakdown of marriage. The Court held that where there is evidence of the husband and wife indulging in “mutual bickering”, the insistence by one party to retain the marital bond would a relevant factor to decide on issue of cruelty. This is because the “obvious intention” of that spouse is to continue with the marriage to torment the other spouse.
In absence of legislative intervention, the Courts have had to devise innovative methods to work around the fault grounds in law. To ensure complete justice, it is essential that the legislature considers the irretrievable breakdown of marriage as a ground for divorce and develops mechanisms to ensure an exit from the marriage albeit on fulfilling the due to economic obligations. Till the legislature gives this a priority, over burdened courts would be using their time better by lowering threshold of proof for divorce and focussing on matters of custody and finance.
Malavika Rajkotia is a Delhi based lawyer and the author of Intimacy Undone.
An analysis of Electricity (Amendment) bill, 2022
Recently we have seen an unprecedented agitation over the new proposed Electricity (Amendment) bill, from the opposition and trade union which was proposed by the Government in the parliament. The bill was introduced by the Union power ministry. After such uproar bill has been referred to the Energy Standing committee for further consultation and scrutiny. We have seen in the past as well bills of such public importance have been referred to the parliament committees. It is worth mentioning here that under the Purview of Article 118(1) of the Indian Constitution Act, 1950 the provisions related to Parliamentary Standing Committees have been provided. This provision has been adopted from the British Parliament functioning, further the said articles talk about two types of Committees I.e.
Standing Committee & Ad Hoc Committee. These committees have great importance in matters related to policy-making, unanimity, and critique.
The main agitation from the opposition was that Union Government is breaching its promise given to SKM that this bill will not be introduced as it is claimed that if this bill gets passed it will end subsidies given to Farmers. The opposition further claimed that said bill is unconstitutional as it defeats the provision of federalism enshrined in the constitution.
Electricity is governed under the concurrent list of the 7 th Schedule of the constitution and for matters given under the concurrent list, every State government should be consulted before introducing any new policy. Currently, we have The Electricity Act 2003 which governs the generation, transmission, distribution, trading, and use of electricity in India. It should be highlighted here that the generation of electricity (except hydro) is an activity that doesn’t require a license, further the distribution, trading & transmission of electricity are licensed activities under the act. Currently, Central Electricity Authority is the regulatory body under the act, the said body advises the Government of India regarding the policies & safety
requirements for smooth functioning. The Act was first amended in the year of 2007 and introduced the concept of cross-subsidy with the aim of providing electricity to the poor section of society. Further 2014 bill couldn’t be passed in the parliament.
India is the third largest producer of electricity in the world and for the same reason, any change in policy making has an enormous impact not only on traders but on consumers as well.
The major highlights of the 2022 amendment are, that it aims to increase the competition in the market, by allowing more than one power distributor in an area to distribute the power and giving the discretion to the consumers to avail of the power supply from the distributor of their choice, additionally, it allows the power distributor to use the infrastructure of other suppliers as well. We have seen this approach in the telecom sector as well, where consumers have choices to avail themselves of the services from different service providers.
The second provision of the amendment deals with Rationalize power rates under which regulators would have to fix a minimum tariff ceiling and it would protect the interests of consumers. The bill provides a stipulated time of a maximum of 90 days for the grant of a power distribution license and it would ultimately end the red tapism.
The last major proposed amendment is aimed to improve compliance by providing regulators power to execute the orders as a decree of a Civil court. The bill further aimed to improve the functioning of the regulators, increase efficiency, and more accountability.
With these proposed amendments the private companies would be empowered for the distribution of power. It is claimed by the opposition that only Government distribution companies will have the universal power supply obligations the private companies may prefer to supply the electricity in only profit-making areas i.e. industrial and commercial consumers. it is further claimed by the opposition that power supply workers under the Government may lose their jobs in case of monetary losses to the Government Distribution companies.
It can be concluded that with such amendments a much more competitive market would prevail and the consumers would get the maximum benefit at the same time the onus is on the government to ensure the accountability of the private sectors in power distribution. A robust compliance mechanism is required in case of any dispute between the private distributors and consumers. Additionally, Government should also consider the fact that after the privatization of electricity in the United Kingdom the consumers have to pay more price for the electricity and it may happen in India as well. In a democratic country like India, it is essential that every policy-making and reform should take place after a healthy parliamentary debate on the floor of the house, It is worth mentioning here that each minute of parliament in sessions costs approx. 2.5 Lakh and this taxpayer money should not be wasted just for the sake of criticism with no logic and acumen behind that criticism.
The major highlights of the 2022 amendment are that it aims to increase the competition in the market by allowing more than one power distributor in an area to distribute power and giving the discretion to the consumers to avail of the power supply from the distributor of their choice. Additionally, it allows the power distributor to use the infrastructure of other suppliers as well. We have seen this approach in the telecom sector as well, where consumers have choices to avail of the services from different service providers.
CITIZENS OF 83 COUNTRIES ARE STILL SLAVES
We are lucky to be born in a free country. Ask about the value of freedom to the people living under dictatorship.
I hope we haven’t forgotten China’s business mogul Jack Ma, who until a year and a half back was a big name in the world. At the time, his fortune was estimated at around USD 2,370 crore. Jack Ma is missing today. He was last seen in public in November 2020. There are rumours that he was seen in Hong Kong in 2021, but the claims have not been confirmed.
You must be wondering why I am talking about Jack Ma on the occasion of the diamond jubilee of India’s independence. In fact, this is a glaring example of stifling liberty by those in power. Actually, Jack Ma has been trapped by the Chinese government. He was growing unbridled in wealth and power. And wherever there is a dictatorship, no one is allowed to become stronger except for those in power. Even prominent businessmen like Jack Ma are not spared as those in power are always afraid of such people. If Jack Ma could suffer such a sad fate, can you imagine what the state of the common man out there would be like? About 10,000 Muslims have been put in prisons called correctional institutions in the name of new education in Xinjiang province. There are no mosques, no churches, no temples! China also destroyed pious Tibet. China is now trying to annex Taiwan as well.
This story is not unique to China. There are about 83 countries across the world where dictators are in power directly or in the name of religion. Before the arrival of Vladimir Putin, there used to be many big industrialists in Russia, but today there is no trace of them. All stand devastated. Everyone is familiar with the situation in Iran and the Middle East. In Pakistan, there is democracy for name’s sake but the real power lies with the military. Last year, you saw how the army seized power in Myanmar. It’s anybody’s guess as to how many people were killed by the Myanmar army. You already know the stories of the coup in Pakistan. We are witnessing the deteriorating situation in Sri Lanka. I had also written about the dictatorship of the Rajapaksa family in Sri Lanka in these columns. The painful story of North Korea keeps filtering out as to how a cynical dictator Kim Jong-un has enslaved millions of people. People just exist there. They can’t even sport their favourite hairstyle! If they do not display picture of the dictator in their homes, capital punishment is a certainty. In sharp contrast, the neighbouring democratic South Korea is progressing fast. And if there are dictators in some African countries, the fanatics opposing them are no less than the dictators themselves.
I am telling these stories to you so that you can understand the meaning and importance of freedom. We should bow to our ancestors who did not even care for their lives so that we could breathe freely. I always say that my Diwali is Mahatma Gandhi, my Holi is Pandit Nehru, and Subhas Chandra Bose, Bhagat Singh and thousands of revolutionaries like them reside in my heart. I have faith in Lord Mahavir and Gautam Buddha. I have the spirit of Chhatrapati Shivaji Maharaj because I was born in the family of a freedom fighter. My Babuji, veteran freedom fighter Shri Jawaharlal Darda, was also imprisoned in Jabalpur jail for about one year and nine months. He suffered the torture of the Britishers for the sake of freedom.
So if we are immersed in the celebration of 75 years of India’s independence today, it is only because of the non-violent struggle of Mahatma Gandhi and the sacrifice of many great revolutionaries. It is not known how many mothers lost their sons, how many women lost their husbands and how many sisters kept waiting in vain for their brothers to return home. The country had to make a lot of sacrifices to attain this freedom. People of every community, sect, religion and caste have made sacrifices. Countless people were imprisoned in the British jails for years. A long period of 75 years has passed since independence. The generation of freedom fighters has almost passed away. The third generation after independence has now taken over the command. Social feelings have weakened a little, relationships and associations have taken a beating and the bond of love has become weak too, but I feel proud that the feeling of patriotism continues to grow. I am thankful to Prime Minister Shri Narendra Modi who made the Azadi Ka Amrit Mahotsav such a grand affair and launched the ‘Har Ghar Tiranga’ campaign. I have consistently tried in the Rajya Sabha to get the common man the right to hoist the tricolour every day. Getting this right is like giving more scope for freedom. We have to maintain the glory of the tricolour which has been handed over to us by our freedom fighters. So, let us make ourselves proud by hoisting the tricolour every day. I returned last month after meeting the soldiers of the Indian Army stationed on the border in the difficult valleys of Kashmir. The tricolour is our identity. There, I was humming Kaifi Azmi’s song: Ab tumhare hawale watan sathiyo..!
I would like to say one more thing; though we have made a lot of progress, even today there are people who do not get two square meals a day. Many are still looking for employment. The sad sight of a man or a woman carrying the body of their loved ones on their shoulders or bicycles is seen. Sisters and daughters are still becoming victims of cruelty. Tribal communities still have a long way to go. We have to get rid of all these social ills. We cannot depend on the government alone to achieve this goal. Along with the government, we too have to work with all our strength so that we can share the fruits of freedom with the weak and enjoy the true freedom ourselves. It is only then that we will be able to say even more happily… Saare Jahan Se Achha, Hindustan Hamara! Jai Hind!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
We are truly blessed. We are celebrating the Azadi Ka Amrit Mahotsav, and we are living in a democracy. But are you aware that there are still at least 83 countries around the world where citizens live like slaves? While the dictators are in direct control in some countries, they are wielding authority in the garb of democracy in others!
Kerala HC: Mere Violation Of bail Condition Is Not Sufficient To Cancel The Bail
While setting the record entirely straight, the Kerala High Court has in an extremely laudable, landmark, learned and latest judgment titled Godson v. State of Kerala & Ors. in Crl. MC Nos. 2807 & 2814 of 2022 [Against the order dated 24.2.2022 in Crl.M.P.No.249/2022 IN Crl.M.C.No.197/2018 on the file of the IInd Additional Sessions Court, Ernakulam] and cited in 2022 LiveLaw (Ker) 425 pronounced as recently as on August 10, 2022 made it absolutely clear that non-compliance with the bail conditions alone is not a ground to cancel the bail already granted to the accused since such cancellation affects the personal liberty of a person under Article 21 of the Constitution. We all fully know that the personal liberty of a citizen is accorded the paramount importance under Article 21 which is a fundamental right also of every citizen of India! It deserves noting that the Single Judge Bench of Justice A.A. Ziyad Rahman minced just no words to clarify that while considering an application to cancel the bail on the ground of non-compliance with the conditions, the court has to consider the question of whether the alleged violation amounts to an attempt to interfere with the administration of justice or as to whether it affects the trial of the case in which the accused is implicated. Very rightly so!
At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Kerala High Court comprising of Hon’ble Mr Justice A.A. Ziyad Rahman sets the pitch in motion by first and foremost putting forth in para 1 that, “The petitioners are the accused in Crime No.160/2018 of Kalady Police Station. The petitioner in Crl.M.C No.2814/2022 is the 1st accused and the petitioner in Crl.M.C. No.2807/22 is the 2nd accused in the said crime. The aforesaid crime was registered alleging offences punishable under Sections 341,308 and 324 r/w. Section 34 of the Indian Penal Code (IPC).”
To put things in perspective, the Bench then envisages in para 2 that, “The petitioners were arrested in connection with the said case and later, as per order dated 9.2.2018 in Crl.M.C.No.197/2018, the 2nd Additional Sessions Court, Ernakulam, granted bail to them subject to certain conditions. One of the conditions was that they should not involve in any other crime of similar nature during the bail period. Subsequently, the investigation in the said case is completed, and the final report has been submitted.”
While continuing in the same vein, the Bench then observes in para 3 that, “Later, Crl.M.P.Nos.249/2022 and 247/2022 were submitted by the Public Prosecutor for cancellation of their bail. The sole reason highlighted in the said petition is that both the petitioners are subsequently involved in Crime No.1159/2021 of Kuruppampady Police Station, which was registered for the offences punishable under Sections 143,147,308,324,506(ii)and 294(b) r/w. Section 149 of IPC. The learned Sessions Judge, as per orders dated 24.2.2022 allowed the said applications after hearing the petitioners and thereby, the bail granted to them was cancelled. These orders are now under challenge in this Crl.M.Cs.”
It is worth noting that the Bench enunciates in para 7 that, “The conditions to be imposed while granting bail, are contemplated under Sections 437(3) r/w. Section 439(1)(a) of Cr.PC. The condition not to involve in similar offences during the bail period is something which is specifically stipulated in the aforesaid provision. Since such a condition is specifically mentioned in the statute, that would indicate the importance of such condition and the necessity to insist on the compliance of the same. However, the question that arises here is whether a violation of the said condition should result in the cancellation of the bail in all the cases. In my view, merely because of the reason that such a condition was imposed while granting bail to the accused, that would not result in the cancellation of bail automatically. This is particularly because, since the order of cancellation of bail is something that affects the personal liberty of a person, which is guaranteed under Article 21 of the Constitution of India, unless there are reasons justifying or warranting such an order, the bail already granted cannot be cancelled. In Dolat Ram and Others v. State of Haryana [(1995)1 SCC 349], the Hon’ble Supreme Court has observed as follows:
“5. Rejection of bail in a non – bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to. interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non – bailable case in the first instance and the cancellation of bail already granted.”
The aforesaid view was reiterated in X v. State of Telangana and Another reported in [(2018) 16 SCC 511].”
Most remarkably, the Bench then observes in para 8 that, “In Dataram Singh v. State of Uttar Pradesh [(2018)3 SCC 22], it was observed by the Hon’ble Supreme Court in the manner as follows:
“It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”
Therefore, while considering an application to cancel the bail on the ground of non compliance of the conditions, the court has to consider the question whether the alleged violation amounts to an attempt to interfere with the administration of justice or as to whether it affects the trial of the case in which the accused is implicated. In XI, Victim SC No.211 of 2018 of POCSO Court v. State of Kerala and Others [2019(3)KHC 26], this Court laid down the principles with regard to the nature of the enquiry to be conducted by the court concerned, while considering an application for cancellation of bail. In paragraph 9 of the said judgment, it was observed as follows: “9. But in a case where the victim or the witnesses specifically complains of threat and intimidation and the said aspects are projected either by victim or by the prosecution before the Bail Court through an application as referred to in Ext.P- 5, then it is bounden duty of the Bail Court to consider the correctness or otherwise of the allegations in a summary manner after affording an opportunity of being heard to the prosecution as well as to the affected accused concerned whose bail is ought to be cancelled and if possible to the victim as well, in a case like this. In such process of enquiry, the Bail Court could call for the records if any in relation to those allegations and if a separate crime has been registered in that regard, the records in those crimes should also be perused by the Bail Court in order to make an enquiry in a summary manner as to the truth or otherwise of the allegations therein, and after affording reasonable opportunity of being heard to the prosecution, accused and the victim, the Bail Court is expected to discharge its solemn duty and function to decide on the correctness or otherwise of the allegations in such a summary manner and the evidentiary assessment thereof could be on the basis of the overall attendant circumstances as well as the attendant balance of probabilities of the case. Based on such a process, the Bail Court is obliged to take a decision whether the bail conditions have been so violated and if it is so found that the bail conditions has been violated then it is the duty of the Bail Court to cancel the bail, but certainly after hearing the affected party as aforestated. So also, if the said enquiry process reveals that the truth of the above said allegations has not been established in a convincing manner in such enquiry process, then the Bail Court is to dismiss the application to cancel the bail. But the Bail Court cannot evade from the responsibility by taking up the specious plea that since the very same allegations also form subject matter of a distinct crime then the truth or otherwise of the allegations is to be decided by the Criminal Court which is seisin of that crime through the process of finalisation of said impugned criminal proceedings by the conduct and completion of trial therein.”
Thus, from all the above decisions, it is evident that, mere violation of the condition alone is not sufficient to cancel the bail granted by the court. Before taking a decision, the court has to conduct a summary inquiry based on the records, including the documents relating to the subsequent crime and arrive at a conclusion as to whether it is necessary to cancel the bail or not. Therefore, the orders impugned in these cases are to be considered by applying the yardstick as mentioned above.”
Be it noted, the Bench notes in para 9 that, “When coming back to the facts of this case, it can be seen that the petitioners are seen implicated in the offences under Sections 341,308,324 r/w. Section 34 of the IPC, in a crime registered in the year 2018. They were granted bail on 9.2.2018, subject to the above conditions. Now the present application is submitted in the year 2022 on the allegation that the petitioners are involved in a crime committed in the year 2021. The fact remains that in both cases, final reports were already submitted by the Police. In the subsequent crime also, the petitioners were granted bail even after taking into consideration the criminal antecedents of the petitioners. Therefore, custody of the petitioners is not required to conduct the trial of the said cases. The allegations in the subsequent crime are not relating to an act which was allegedly committed by the petitioners with the intention to intimidate or influence any witnesses in the crime registered in the year, 2018. Both crimes are entirely different and have no connection with each other.”
While adding clarity, the Bench then specifies in para 10 that, “In my view, even though the court which granted the bail is empowered to direct the arrest of the petitioners who were already released on bail by virtue of the powers conferred upon the court as per Section 437(5) and 439(2) of Cr.PC, such power has to be exercised only if it is absolutely necessary. Of course, if the subsequent crime is allegedly committed with the intention to influence or intimidate the witnesses, the consideration should have been different, but it is not the case here. In Dataram Singh’s case, it was categorically observed that, bail once granted, cannot be cancelled without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”
Most significantly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 11 wherein it is postulated that, “While considering the alleged involvement of the petitioners in the subsequent crime for cancellation of bail, the fact that the second crime is after three years of the earlier crime is also a relevant aspect. The petitioners are indeed involved in some other cases, and one of the petitioners is already undergone preventive detention under KAA(P)A. However, that alone cannot be a reason to cancel the bail, unless it is shown that the involvement of the petitioners in the subsequent crime is affecting the trial of the earlier case. If the prosecuting agency is concerned with the commission of repeated offences by the accused persons, there are ample statutory provisions available for them to initiate appropriate proceedings for subjecting the accused persons to preventive detention. The stipulations contained in Section 437(5) and 439(2) of Cr.PC cannot be treated as a substitute for preventive detention laws. The legislature has brought into force, various enactments to enable the authorities concerned to keep the persons involved in repeated crimes under preventive detention, despite the stipulations in 437(5) and 439(2) of Cr.P.C. The said fact fortifies the view which I have taken as above. Moreover, there are no provisions in Cr.PC which specifically deal with the cancellation of bail and instead, the power is given to the court as per sections 437(5) and 439(2) to direct the person already released on bail, to be arrested and committed to prison, if it considers necessary to do so. When the court orders the arrest of a person already released on bail, it would have the effect of cancellation of the bail. Therefore what is relevant is not a mere violation of the bail condition but the satisfaction of the court that ‘it is necessary to do so’. While considering the aforesaid question, the matters such as; the time gap between the crimes, the possibility of false accusation in the subsequent case, bail granted to the accused in the subsequent crime, stage of the prosecution of the case in which cancellation of bail is sought, chances of affecting or causing interference in the fair trial of the case, etc. could be relevant. In some cases, the commission of heinous crimes repeatedly, in such a manner as to infuse fear in the mind of the witnesses, which may deter them from deposing against the accused, may also be relevant, as it is something which affects the conduct of the fair trial. However, no hard and fast rules can be laid down in respect of the same, and it differs from case to case. As held in the case of XI, Victim SC No.211 of 2018 of POCSO Court (supra), the court has to conduct a summary enquiry after perusing the records and arrive at a satisfaction as to whether it is necessary to cancel the bail of the accused.”
Finally, the Bench then concludes by holding in para 12 that, “While applying the above principles to the facts of this case, one of the crucial aspects relevant for consideration is whether the subsequent crime interferes with the conduct of a fair trial of the case in which he is involved. Such a situation is not there in this case. Further, the mere allegation of the involvement of the petitioners in the subsequent crime after three years of the crime in which the bail was granted, cannot by itself be a reason for the cancellation of bail. Even in the subsequent cases, the petitioners were granted bail and the investigation in that case was also completed. Therefore, the custody of the petitioners is not at all necessary, and hence I do not find any justifiable reason to sustain the order of cancellation of bail. In the result, both these Crl.M.Cs are allowed. The orders passed by the IInd Additional Sessions Court, Ernakulam on 24.02.2022 in Crl.M.P.No.247/2022 and Crl.M.P.No.249/2022 in Crl.M.C.No.197/2018 are hereby quashed. However, it is made clear that, this shall not preclude the authorities concerned in initiating any proceedings for preventive detention of the petitioners if there are materials warranting the same.”
On the whole, this extremely commendable, cogent, composed and convincing judgment by the Kerala High Court makes it indubitably clear that violation of bail conditions by itself is not a ground to cancel bail. We thus see that the Kerala High Court refuses to find any justifiable reason to sustain the order of cancellation of bail. There can be just no denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
REMEMBERING GORKHA CONTRIBUTIONS TO THE INDEPENDENCE MOVEMENT
Under the leadership of Hon’ble Prime Minister Sh. Narendra Modi ji as our nation commemorates ‘Azadi ka Amrit Mahotsav,’ we take a solemn moment to remember all those brave hearts who sacrificed their lives so that we could live in a free country. The struggle for Independence attracted active participation from all the communities across the nation, however the contributions of smaller communities, especially those from North East India have remained relatively unknown. All that is changing, thanks to the ‘Azadi ka Amrit Mahotsav’ commemoration as envisioned by Modi ji, more and more people are coming to know about the freedom fighters from smaller regions and communities too.
The sacrifices and contributions of the Indian Gorkha community towards our freedom struggle and nation building is immense, sadly majority of the people across our nation are unaware of the sacrifices made by our Gorkha ancestors. As a Member of Parliament from Darjeeling Lok Sabha constituency, which is the heart of Gorkha community in India, and being a Gorkha by ethnicity, here is my humble attempt at highlighting some of the icons from Indian Gorkha community whose contributions in the history of India’s Independence remains relatively unknown among the general population.
INA CAPT. RAM SINGH THAKURI – HIMACHAL PRADESH
Among the very many celebrated Gorkha Freedom Fighters, perhaps the one with the most iconic contribution, yet the least known, remains Capt. Ram Singh Thakuri of Himachal Pradesh.
Call it a coincidence or destiny, Capt. Thakuri was born on the 15th of August 1914 to a Gorkha family in Khaniara village, Dharamshala, HP. In 1924, he had joined the 2/1 Gorkha Rifles as a unit musician. He was a talented young man, who was proficient in many fields including football, athletics, and wrestling. In the Second World War, his Battalion was shipped overseas to Singapore. In 1942, Singapore fell and the Allied forces surrendered to the Japanese. This is when Capt Ram Singh Thakuri joined the Indian National Army (INA). Soon he became very popular due to his musical talents, so much so that Netaji himself took a note of his talents. Netaji an astute military strategist understood the power music could have on the morale of the soldiers asked him to raise a marching band for the INA.
Capt. Thakuri didn’t let Netaji down, as he produced some of the most well know songs from India’s freedom movements like Kadam Kadam Badhaye Ja, Sare Jahan se Accha, Inquilab Zindabad, Hind Sipahi, the Rani of Jhansi Regiment marching song “Hum Bharat ki Ladki Hai,” and others.
The Azad Hind Government had strongly felt that a National Anthem was required which would connect all Indians through a common thread of music. While some had favoured the great poet Bankim Chandra Chatterjee’s ‘Vande Mataram’ as the national anthem, some others felt it wasn’t inclusive enough. It was Capt. Lakshmi Sahgal who introduced Gurudev Rabindranath Tagore’s ‘Jana Gana Mana’ to Netaji, by having it performed at INA women’s wing meeting, which Netaji had attended. Following which, Netaji instructed Capt Ram Singh Thakuri to re-compose the music of Gurudev Rabindranath Tagore’s version of Jana Gana Mana in a martial tune to which INA soldiers could march to.
In one of his interviews, Capt. Thakuri fondly recalled Netaji instructing him, “the song should have such an indelible impact and force that the Cathay Building [in Singapore] should ‘break’ into two parts and the sky should become visible.”
While Capt Abid Ali and Mumtaz Hussain rewrote Gurudev’s “Jana Gana Mana” to “शुभ सुख चैन – Subha Skhuh Chain ki Barsha Barse”, Capt. Ram Singh Thakuri gave music to it.
Subha Skhuh Chain ki Barsha Barse was adopted by the Provisional Free Government of India (Arzi Hukumat-e-Azad Hind) led by Netaji as the Qaumi Tarana – National Anthem. “Subha Sukh Chain” was played as the national anthem of free India first time on 11 September 1942 at Hamburg, when on October 31, 1943, when the INA came to power, the orchestra led by Capt. Thakuri played the Qaumi Tarana, the Cathay Building did indeed reverberate thunderously.
The music of Capt. Thakuri’s ‘Qaumi Tarana’ became a base on which our current national anthem “Jana Gana Mana” is set. In 1944, Capt. Thakuri was decorated by Subhas Chandra Bose with a gold medal for his contribution. Capt. Thakuri also received a violin and a saxophone as personal gifts from Netaji.
Capt. Thakuri was especially invited to play the ‘Quami Tarana’ when Pt. Jawahar Lal Nehru unfurled the Tiranga from Lal Quila on the 15th of August, 1947, he had used the violin presented to him by Netaji, who had told him, “you will play this violin when India gets her Independence”.
Sadly, after Independence, the brave INA Freedom Fighters were neglected by the then governments. Capt. Thakuri was appointed as a DSP with the Provincial Arms Constabulary (PAC) band of Uttar Pradesh Police, and he continued to serve our nation through his music till his last days.
PUSHPA KUMAR GHISING – DARJEELING
The Naval Uprising of 1946 is among the lesser-known moments of the Indian Freedom Movement, but perhaps it is the most significant. This is when the Indian Navy soldiers staged a revolt against the British in Karachi and Bombay. Inspired by the Indian National Army over 20000 mutineers joined the Freedom Fighters from Karachi to Calcutta, taking
over the 78 ships afloat and onshore establishment. This had inspired other servicemen in the army, air force and even the civilians to join the protests.
During the rebellion, navy personnel Puspa Kumar Ghising from Darjeeling fought with at least three British soldiers and managed to take control of the Bombay naval ammunition dump alone. The weapons from the ammunition dump were used by the rebelling Indian sailors to hold back the British for 5 days. However, on the fifth day, the leaders from the Indian National Congress had intervened and coaxed the sailors to lay down their arms. Ghising and his friends were arrested and taken to the Mulundi Jail where he was court-martialled but acquitted during the trail.
He resigned from the Navy on September 8, 1946, and plunged into the independence movement.
Even though the Naval Uprising has not been given due importance in the history books, unlike the other important incidents in the Freedom Movement, however, many contemporary historians attribute Naval Uprising as the pivotal movement that hastened the British decision to quit India.
In recognition of Ghisingh’s role in the Independence movement, the government
felicitated him with the Tamra Patra on August 15, 1989.
HELEN LEPCHA – SIKKIM AND KURSEONG
Helen Lepcha was born in 1902 in South Sikkim and is perhaps the only female freedom fighter from Sikkim. The family migrated to Kurseong in search of better education and livelihood prospects. During the floods of 1920 in Bihar, Helen Lepcha worked as a volunteer, providing tireless service to the victims, this brought her to the attention of Mahatma Gandhi, who later named her as Sabitri Devi in honour of her service to the people. Helen Lepcha worked with the coal workers from the coalfields in erstwhile Bihar and among the workers in United Provinces (Uttar Pradesh), strengthening the Freedom Movement and participated in the non-cooperation movement in 1921. She was arrested for “inciting the people against the government” and sent to jail for three months and a further house arrest later that year.
When Netaji was kept under house arrest in Giddhey Pahar in Kurseong from 1939-40, Helen Lepcha played a vital role in smuggling in and out coded messages, ultimately laying the foundation for Netaji’s escape later right under the nose of the British authorities from Calcutta to Germany.
In appreciation of the immense contributions during the freedom movement, the Government of India honoured her with a Tamra Patra the citation.
MAJOR DURGA MALLA – UTTARAKHAND
Born on 1st of July in 1913 at the Doiwala village in Dehradun district of Uttarakhand, Durga Malla joined the Gorkha Rifles in 1931 at the age of 18. In 1942, at the height of the 2nd World War, a group of Indian soldiers led by Durga Malla decided to breakaway and form the Indian National Army under Netaji Subash Chandra Bose. Durga Malla was one of the key figures responsible for the formation of the INA, as he was largely responsible for encouraging fellow Gorkha soldiers to quit the British and join the INA. Seeing his dedication towards the Freedom of India and his military talents, he was promoted to the rank of Major by Netaji, and posted in the intelligence branch of INA, where he performed exemplarily often taking risky missions that helped INA march forward.
It was during one such intelligence gathering missions that he was arrested on the 27th of March, 1944 near Urkhul in Manipur. He along with fellow INA prisoners were kept in a prison at the Red Fort as a prisoner of War. There, the British tried to persuade him to renounce INA and offered him that his life would be saved if he did so. But he flat out refused to bow before the British. When all tricks and coercions failed, the British brought his wife Smt. Sharda Devi to get him to denounce INA, but instead he told his wife, “Sharda, I am sacrificing my life for the freedom of my motherland. You need not be worried and distressed. Crores of Hindustanis will be with you after my death. The Sacrifice I am offering, shall not go in vain. India shall be free. I am confident, this is only a matter of time.”
On 25th August 1944, he was sent to the gallows.
Today, his statue adorns the premise of our Parliament, marking the contribution of Gorkha community towards our Independence.
SUBEDAR NIRANJAN SINGH CHHETRI – MANIPUR
Among the illustrious Gorkha community that has produced so many heroes for our nation, the honour of being the 1st Gorkhali to have martyred for our motherland goes to Subedar Niranjan Singh Chhetri ji, from Manipur.
When the great Manipuri hero Jubraj Tikendrajit Singh decided to resist the British incursions into Manipur, 39-year-old Niranjan Chhetri of Tikuamoh, who was an ex-army sipahi of the 34th native Infantry, joined the native force of Manipur led by Bir Tikendrajit and Thangal General. His past experience as a soldier and bravery was evident, and he was appointed as Subedar by Jubraj Tikendrajit himself.
Following the war, he was tried by the Chief Political Officer, Manipur Field Force and was hanged to death by the British on June 8th, 1891. His last words were, “My birthplace is my Motherland, I am ready to die for this land, and I am ready to kill for this land, but I am not ready to accept surrender and subjugation of my own land”.
For decades, his sacrifice had been relegated to the pages of history. However, under
Hon’ble Chief Minister N Biren Singh ji the history and legacy of this legendary Gorkha
Freedom Fighter is finally being brough to light. On March 7th, 2021, CM N Biren Singh ji unveiled the statue of Saheed Subedar Nirajan Singh Chhetri, he acknowledged the role played by Subedar Niranjan by writing, “Immensely glad to unveil the statue of Saheed Subedar Niranjan Singh Chhetri, one of the heroes of Ango-Manipur War, 1891. His bravery, patriotism & sacrificial spirit for the motherland were unparalleled. He was hanged to death by the British on June 8,1891 for his role in the war.”
Chhetri – the 1st Gorkha Freedom Martyr]
DALBIR SINGH LOHAR – ASSAM
Dalbir Singh Lohar from Assam joined the freedom movement in 1921 during Gandhi ji’s visit to Dibrugarh. He was a labour leader and one of the most prominent Freedom Fighters from Assam, who led the Civil Disobedience Movement in Dibrugarh from the front. He was imprisoned between 1930-31 for his participation in the Civil Disobedience Movement, along with other Gorkha freedom fighters from Assam like Bhakta Bahadur Pradhan, Anantalal Sharma.
In 1939, Assam saw the historic strike at the Asia’s oldest refinery and the birthplace of oil industry in India in Digboi, Assam. Dalbir Singh Lohar was one of the key leaders of the strike called by the non-unionised Digboi Oil Refinery workers. Citing tensions with Germany, the British crushed the Digboi strike with an iron hand sending down eight platoons of Asssam Rifles to crush it. All the prominent leaders like Dalbir Singh Lohar were issued Quit Digboi, Quit Lakhimpur, and finally Quit Assam within 72-hours’ notice by the British.
He was again arrested during the Quit India Movement called by Gandhi ji, and all the Gorkha freedom fighters like Bhakta Bahadur Pradhan, Anantalal Sharma and others and kept in separate jails. However, they soon became the symbols of working-class people’s resistance against the British government.
After Independence, Dalbir Singh Lohar went onto become the first MLA of Gorkha ethnicity to be elected from the Digboi Assembly, by winning the 1951 election with a landslide margin. He continued to serve the working-class people all through his life.
These are only a few, whose contributions I have highlighted today, there are hundreds of others who have played a significant role towards ensuring our Independence, but due to the paucity of space, accommodating them all is not possible.
As can be seen, the Gorkhas no matter which state they were born in, have played a significant role in our Freedom Struggles, and I am hopeful that as we celebrate the “Azadi ka Amrit Mahotsav” more people across the nation will come to know about heroes like them.
*Raju Bista is the Member of Parliament from Darjeeling and National Spokesperson for BJP
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