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Maratha reservation: Would it be another Indra Sawhney case?

Manjunath Kakkalameli

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Since there was continuous demand for Maratha Reservation till 2018, it was however, deferred due to unwillingness of political parties. However, the act was introduced during BJP Government which granted 16% reservation for Maratha; however, the act had been challenged & the Hon’ble Bombay High Court upheld the reservation & allowed the reservation & reduced it to 12 per cent in education and 13 per cent in government jobs.

However, it has been again challenged before the Supreme Court ,as three-judge Bench of the Supreme Court on Wednesday referred a group of petitions challenging the Maratha reservation law to a Constitution Bench.

The Bench led by Justice L. Nageswara Rao found merit in the arguments made by senior lawyers that a larger Bench should examine the issue of reservation for the Maratha community. Chief Justice S.A. Bobde will constitute the Bench.

The court said the Maratha quota, meanwhile, will not apply for admissions and appointments made in the State for 2020- 21. However, the postgraduate admissions which have already been made will be left unaltered. In this back ground let’s see What is Maratha Reservation & why it has been challenged before Hon’ble Supreme Court.

THE MANDAL COMMISSION REPORT

The commission which listed 128 communities as backward, identified Marathas as ‘forward’. The Khatri Commission (1995) constituted by the Maharashtra government held by majority that Marathas may not be included as Kunbis in the list of OBCs, but recommended that people entered as Kunbi-Maratha or Maratha-Kunbi may be given the same benefits as the Kunbi caste. The request of treating Marathas at par with Kunbis was not accepted even in 2000 and Marathas were not included in the central Backward Classes list. In 2008, the Bapat Commission by a 4-2 majority recommended that it would not be proper to include Marathas among OBCs from the viewpoint of principles of social justice.

JUSTICE M.G. GAIKWAD COMMISSION: QUANTIFIABLE DATA

In 2017, the 11-member Maharashtra State Backward Class Commission (MSBCC) headed by retired Justice G M Gaikwad, a reference was made to the Maharashtra Backward Class Commission. When its chairman Justice S B Mhase passed away, he was replaced with Justice M G Gaikwad in November 2017. The Gaikwad Commission report submitted on November 15, 2018, found that Marathas are socially, educationally and economically backward and eligible to be included as a Backward Class.

The High Court expressed its satisfaction on the authenticity of the data in the report. The court also discussed at length through comparative tabular analysis why denial of Backward Class status to Marathas by earlier Commissions was wrong.

In social backwardness, the Gaikwad Commission found that 76.86% of Maratha families are engaged in agriculture and agricultural labour, around 70% live in kachcha dwellings, and only 35.39% have personal tap water connections. In educational backwardness, it found that 13.42% of Marathas are illiterate, 35.31% primary educated, 43.79% HSC and SSC, 6.71% undergraduates and just 0.77% postgraduates and professionally qualified. In economic backwardness, the Commission found that 93% Maratha families have an annual income of Rs 1 lakh; 37.38% families are Below Poverty Line against the state average of 24.2%, and 71% own less than 2.5 acres land.

MARATHA POPULATION IN MAHARASTRA

Based on its estimate of the Maratha population at 30% of Maharashtra’s total, the Commission had suggested for 12% and 13% reservation to Marathas but the state government of its own adopted 16% reservation. The Commission found that Marathas are about 30% of the state’s population. The court rejected the argument of the petitioners who had argued that 30% is not mathematically correct. If the population of SCs is 13%, that of STs is 11%, and that of OBCs as per Mandal Commission is 52% and if Maratha is added as 30%, it would take the total population over 100%, the petitioners had argued.

The Committee surveyed about 45, 000 families from two villages from each of 355 talukas with more than 50 per cent Maratha population. The report submitted on November 15, 2018, said that the Maratha community is socially, economically and educationally backward.

In social backwardness, the Commission found that around 76.86 % of Maratha families are engaged in agriculture and agricultural labour for their livelihood and nearly 70% reside in Kachha dwellings, and only 35- 39 % have personal tap water connections. Moreover, the report said that in 2013-2018, a total of 2,152 (23.56%) Maratha farmers died by suicide, against total 13, 368 farmer suicides.

The Commission also found that 88.81 % Maratha women are involved in physical labour for earning livelihood, besides physical domestic work they perform for the family.

In educational backwardness, it found that 13.42 % of Marathas are illiterate, 35.31 % primary educated, 43.79 % HSC and SSC, 6.71 % undergraduates and postgraduates and 0.77 % technically and professionally qualified. In economic backwardness, the Commission found that 93 % Maratha families have an annual income of Rs 1 lakh, which was below average income of middleclass families. Moreover, it found that 37. 38% families were Below Poverty line against the state average of 24% and 71% own less than 2.5 acres land, whereas only 2.7% big farmers own 10 acres of land.

THE BOMBAY HIGH COURT OBSERVATION ON MARATHA RESERVATION

The HC upheld & expressed satisfaction over the data and observed that the Commission had conclusively established the social, economic and educational backwardness of the Maratha community. It had also established inadequacy of representation of the Maratha community in public employment in the state.

On February 6 last year, a division bench of Justices Ranjit More and Bharati Dangre commenced hearing in petitions filed by advocate Rajashri Laxmanrao Patil and others. In April last year, the court closed the petitions for the verdict.

While ruling that the 16 per cent quota granted by the state was not ‘justifiable,’ the Bombay High Court on July 27 last year reduced it to 12 per cent in education and 13 per cent in government jobs, as recommended by the Maharashtra State Backward Class Commission.

The bench of Justice Ranjit More and Justice Bharati H Dangre observed that “We hold and declare that the limit of reservation should not exceed 50%. However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration.”

The Court had said that while the backwardness of the community was not comparable with SCs and STs, it was comparable with several other backward classes, which find place in the list of Other Backward Classes pursuant to the Mandal Commission.

THE EXISTING TOTAL RESERVATION POSITION IN MAHARASHTRA AFTER HC VERDICT?

A nine-judge bench of the Supreme Court, in the 1993 Indra Sawhney case, which is known as Mandal Commission case, had ruled that total reservation for backward classes cannot go beyond the 50%-mark. Maharashtra is one of the few states that are an exception to this.

In the state, following the 2001 State Reservation Act, the total reservation was 52 per cent. This included quotas for Scheduled Caster (13%), Scheduled Tribes (7%), Other Backward Classes (19%), Special Backward Class (2%), Vimukti Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C-Dhangar (3.5%) and Nomadic Tribe D-Vanjari (2%). The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.

With the addition of 12-13 per cent Maratha quota, the total reservation in the state is 64-65 per cent.

The 10 % Economically Weaker Sections (EWS) quota announced by the Centre last year is also effective in the state.

What made Hon’ble Supreme Court to refer the matter to Constitutional Bench: –

The Maharastra Socially and Educationally Backward Classes (SEBC) Act, 2018, provides for 12% and 13% quota to the Maratha community in education and jobs respectively, violates the principles laid in the case of Indira Sawhney v. Union of India (1992) as per which the Apex Court capped the reservation limit at 50%. The Bombay High Court,  while upholding the Maratha quota,  held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education a s r e c o m m e n d e d b y Backward Commission. The above observations were made by the Apex Court bench while referring the cases to larger bench as the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is involved. 

One more notable observation was made during the hearing that the Court said that the question relating to the extent of reservation has already been decided in Indra Sawhney case, it cannot be termed as a substantial question of law as to the interpretation of the Constitution.

WHETHER THE MAHARASHTRA STATE HAS FAILED TO TREAT IT AS SPECIAL CASE

While observing exceptional grounds Supreme Court observes that social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.

The Court Referring to Indra Sawhney judgment observed thus:

People living in far flung and remote areas not being in the mainstream of national life should be treated in a different way. In view of the conditions peculiar to them they are entitled to be given relaxation. It was made clear that extreme caution has to be exercised and a special case made out for relaxation of the rule of 50 per cent.

We are of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.

WHETHER FACTORS WERE EXTRAORDINARY, WARRANTED AND EXCEPTIONAL

The Court prima facie observed that the High Court committed an error in treating the circumstances cited by the state as extraordinary, warranting relaxation of the strict rule of 50 per cent. It said:

The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per cent are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent. 

WHY INTERIM WAS NOT GRANTED

It was contended before the bench that once the matter is referred to a larger Bench, no interim orders can be passed by the referring court and it should be left open to the larger Bench to consider any interim relief. The Court, disagreeing with the said argument, observed that there is no absolute rule to restrain interim orders being passed when an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court. The bench said:

If the Court is convinced that the statute is ex-facie unconstitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation.

Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same19. It is evident from a perusal of the above judgment that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.

Further court has observed that there is no bar per se for the referring Bench to pass interim orders while sending matters to a larger Bench. In Ashok Kumar Thakur (8) v. Union of India (supra), K.S. Puttaswamy v. Union of India (supra), M. Nagaraj v. Union of India (supra), S.V. Joshi v. State of Karnataka (supra), P.A. Inamdar v. State of Maharashtra 20 , and Modern Dental College & Research Institute v. State of Madhya Pradesh 21 , this Court passed interim orders while referring the matters to a larger Bench. In view of the above, the referring Court is not disabled from passing interim orders merely because the matter is referred to a larger Bench.

THE DOCTRINE OF BASIC STRUCTURE

There are many opinions, observations in many landmark judgments of the HC & SC & juries too. Every time the concept of basic Structure has been interpreted from the different angle.

However, the  Constitution of India has certain basic features  that cannot be altered or destroyed through  amendments  by the  Parliament of India. Key among these “basic features”, as expounded by Justice Khanna, are the fundamental rights guaranteed to individuals by the constitution. The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution. 

In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice  Hans Raj Khanna’s decisive judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.[1] However, in this landmark ruling, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine, as propounded i n J u s t i c e K h a n n a ’ s judgement, has since gained widespread legal and scholarly acceptance due to a number of subsequent cases and judgments relying heavily upon it to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional. Primary among these was the imposition of a state of  emergency  by  Indira Gandhi  in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. 

THE CASES WHICH SET MARKS ON DOCTRINE OF BASIC STRUCTURE

Golaknath  case In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights  provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is “law” within the meaning of article 13 of the Constitution and therefore, if an amendment “takes away or abridges” a Fundamental Right conferred by Part III, it is void.

It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13’s prohibition of any law abridging or taking away any of the Fundamental Rights. Chief Justice Koka Subba Rao writing for the majority held that:

• A law to amend the constitution is a law for the determinations of Article 13.

• Article 13 prevents the passing of laws which “take away or abridge” the Fundamental Rights provisions.

• Article 368 does not contain a power to amend the constitution but only a procedure.

• The power to amend comes from the normal legislative power of Parliament.

• Therefore, amendments which “take away or abridge” the Fundamental Rights provisions cannot be passed.

THE KESAVANANDA BHARATI VS STATE OF KERALA

Exactly after Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in  Kesavananda Bharati v. State of Kerala. The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter “Supreme Court Cases”. The findings included the following:

• All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.

• Ten judges held that Golak Nath’s case was wrongly decided and that an amendment to the Constitution was not a “law” for the purposes of Article 13.

• Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).

• Seven judges held (six judges dissenting on this point) that “the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity”.

• Seven judges held (two judges dissenting, one leaving this point open) that “there are no inherent or implied limitations on the power of amendment under Article 368”. Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:

Golak Nath’s case is overruled.

1. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

2. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.

3. Section 2(a) and 2(b) of the Constitution (Twentyfifth Amendment) Act, 1971 is valid.

4. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid.

5. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

6. The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.

THE NINTH SCHEDULE (ART 31B)

The ninth schedule especially refers to Art 31b of the constitution, which provides “Protective Umbrella” to the laws, enactments enlisted under the ninth schedule, cannot be challenged in the court. This amendment was specially made to shield the enactments from challenging in the court of law. There are almost 284 enactments are enlisted in the ninth schedule.

However, In Maharashtra, a voice is raising on as to why the Maratha reservation was not enlisted in the ninth schedule to protect it from challenging in the court of law.

However, having as discussed above, any enactments, laws which violates Fundamental Rights, the basic structure of the constitution, cannot be enlisted in the ninth schedule. Further it can be challenged & would be under the scrutiny of the Apex Court, even if it is scheduled.

In this background, as India Sawney case cannot allow reservation beyond 50% thus, by referring Maratha Reservation to Constitutional Bench, the bench has questioned on constitutionality of The Maharastra Socially and Educationally Backward Classes (SEBC) Act, 2018 on the ground of Exceptional, Extra ordinary circumstances.

Now, it would be interesting to see, further observation, submission of state of Maharashtra to uphold the constitutionality before constitutional Bench.

The Author is columnist, practising advocate at Bombay High Court.

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Legally Speaking

LABOUR LAW: ASSESSING LIABILITY AND OBLIGATION OF PRINCIPAL EMPLOYER AND CONTRACTOR

In recent times, there have been sincere attempts to ensure that employees/workers are adequately compensated.

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Employee benefit plans and investment schemes are a vital part of the overall compensation package of employees and acts as an important social security parameter for a large workforce in India. While such benefits surely boost the welfare of the bottom line in the short run, a cohesive employee benefit and investment package ensures prosperity of the organization in the long run inasmuch when the employees feel that the benefits and financial security provided by their job is adequate, they tend to be more productive. Over the last few decades, a huge emphasis has been given by the legislature to these investment schemes and benefits to ensure that the employees / workers are adequately compensated. The Employees’ Provident Fund (“EPF”), the Employees’ State Insurance (“ESI”) and Gratuity have been of particular emphasis and importance in this regard. While separate legislations have been enacted to operationalize the payment / deduction of EPF, ESI and Gratuity, namely the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (“EPF Act”), the Employees’ State Insurance Act, 1948 (“ESI Act”) and the Payment of Gratuity Act, 1972 (“Gratuity Act”) respectively, the obligation to make such payments / deductions still remains an issue of concern and contention. In most cases, the Principal Employer attempts to shift the liability of the payment / deduction to the Contractor and vice versa. While there are a line of judicial precedents coupled with the provisions of the EPF Act, ESI Act and Gratuity Act which bring about clarity to the issue of liability, it can be often seen that Principal Employers and/or Contractors attempt to evade this liability by misinterpretation and/ or ignorance of law, thereby resulting in prejudice to the workers and protracted litigations thereafter.

DEDUCTION / PAYMENT OF EMPLOYEES’ PROVIDENT FUND UNDER THE EPF ACT

Section 2(e) of the EPF Act defines ‘employer’ in relation to the EPF Act and includes the owner, occupier and/or the person who has the ultimate control over the affairs of the establishment. Further, Section 2(f) defines ‘employee’ which includes any person who gets, his wages directly or indirectly from the employer and specifically includes any person employed by or through a ‘contractor’. Additionally, paragraph 30 of the EPF Scheme, 1952 (“EPF Scheme”) stipulates that the payment of employee contributions (including Employees’ Provident Fund) and those pertaining to the Contractor, shall be the obligation of the ‘employer’. On a perusal of the aforementioned provisions, it appears that the Principal Employer shall be liable for all PF contributions, including for those belonging to the labourers / workers of the Independent Contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an Independent Contract, which gives the impression that the Principal Employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions. However, judicial precedents on the issue have clarified the position in relation to the liability of Principal Employer and the Independent Contractor pertaining to the payment of PF contributions. It has been repeatedly held by Courts that in the event the Independent Contractor operates independently having its own code, it would be liable for the PF deductions / disbursements themselves and such liability cannot be imputed on the Principal Employer. The High Court of Madras in its ruling in The Madurai District Central Cooperative Bank Ltd. v. EPFO [2012 LLR 702], while dealing with a situation where an independent code was allotted to the Independent Contractor, clearly stipulated that the obligation under paragraph 30 of the EPF Scheme would only fall on the Principal Employer in the event the Independent Contractor does not have an independent code. However, when such independent code has been obtained, the independent contractor shall be liable for all PF payments. Similarly, the High Court of Madras in its ruling in Brakes India Ltd. v. EPFO [2015 (2) LLN 233 (Mad.)] while dealing with the aspect of PF deductions / contributions by the Principal Employer and/ or the Independent Contractor wherein the Independent Contractor had an independent PF Code, relied on the aforementioned ruling in Madurai District Central Cooperative Bank Ltd of the High Court of Madras and held the Independent Contractor shall have the liability in relation to the PF payments. Further, the High Court of Punjab and Haryana at Chandigarh in its ruling in Calcutta Constructions Company v. Regional Provident Fund Commissioner and Ors. [2015 (146) FLR 579] has held on similar lines that in the event the Independent Contractor has an independent code, such Independent Contractor shall be liable for the PF contributions and not the Principal Employer.

DEDUCTION / PAYMENT OF EMPLOYEES’ STATE INSURANCE UNDER THE ESIC ACT

 Section 2(9) of the ESI Act has stipulated the scope and ambit of ‘employee’ in relation to the ESI Act and includes anybody who is employed through an immediate employer and who works under the supervision of the Principal Employer. Clearly therefore, pursuant to the aforementioned provision, the workers of the Independent Contractor over which the Principal Employer has control and supervision would fall within the ambit of employee under the ESI Act and their monetary liabilities would have to be taken care of by the Principal Employer. However, the element of ‘supervision’ becomes extremely crucial to determine the liability of the Principal Employer for monetary deductions / disbursements. The Division Bench of the Madras High Court in its ruling in South India Surgical Company v. The Regional Director, ESIC [L.P.A. No. 74/1992], while dealing with an issue relating to ESI disbursements / deductions by the Principal Employer and/or the Contractor, held that when the Principal Employer had no control and supervision over the workers of the Independent Contractor, such workers would not fall within the ambit of Section 2(9) of the ESI Act and accordingly would not be ‘employees’ as per the Act. Clearly therefore, the ESI compliances in relation to such workers would have to be taken care of by the Independent Contractors. A Full Bench of the Madras High Court, thereafter in its ruling in ESI Corporation v. Bethall Engineering Company [C.M.A. (NPD) No. 1765 of 1999], while relying of the aforementioned Division Bench decision of the Madras High Court in South India Surgical Company held that in the event the Principal Employer does not exercise ‘supervision’ over the workers of the Independent Contractor, then such workers would not fall within the ambit of ‘employees’ under Section 2(9) of the ESI Act and the monetary liabilities in relation to the workers would accrue to the Independent Contract in such case. Similarly, the Madras High Court in its ruling in Deputy Director, Insurance No. V, ESIC v. India Pistons Repco Limited [C.M.A. No. 1516 of 2010] held that the liability of ESI would only on the Principal Employer when the Principal Employer controls and supervises the work in relation to the workers of the Independent Contractor, otherwise, such liability would be imputed to the Independent Contractor.

DEDUCTION/PAYMENT OF GRATUITY UNDER THE GRATUITY ACT

 Section 1(3) of the Gratuity Act stipulates the scope of the Gratuity Act and includes within its ambit ‘establishments’ within the meaning of any law and/ or where ten or more employees are employed. Section 2(f) of the Gratuity Act defines ‘employer’ to be the authority having control and supervision of the employees working in the establishments. Further, it is pertinent to note that Section 2(e) of the Contract Labour (Regulation & Abolition) Act, 1970 (“Contract Labour Act”) defines establishment to include any place where any industries, trade, business or manufacture or occupation is carried out. Additionally, Section 2 (vi) of the Payment of Wages Act, 1936 (“Payment of Wages Act”) becomes relevant inasmuch it defines ‘wages’ and includes sums on the termination of the employment of the person. The aforementioned provisions clearly give the impression that the Principal Employer shall be responsible for the payment of gratuity in relation to the workers of the Independent Contractor inasmuch such Principal Employer shall be an ‘establishment’ and liable for wages on termination, which would include gratuity. However, Section 21(4) of the Contract Labour Act stipulates that in the event the Independent Contractor fails to make payment of wages, then the same shall be paid by the Principal Employer which can thereafter be recovered from the Independent Contractor. Accordingly, Section 21(4) of the Contract Labour Act makes it clear that if the primary liability for payment of gratuity to its workers lies on the Independent Contractor, in the absence of which the liability shall lie on the Principal Employer. In the aforementioned context, the Madras High Court in its ruling in Madras Fertilizers Limited v. The Controlliing Authority, Assistant Commissioner of Labour (Gratuity) and Ors. [2003 (97) FLR 275], while dealing with the aspect of gratuity compliances pertaining to the Principal Employer and/or the Independent Contractor, categorically held that in the event the Independent Contractor, who has engaged the workmen does not pay gratuity, then pursuant to Section 21(4) of the Contract Labour Regulation Act, the Principal Employer shall be liable to pay such dues and then recover the same from the Independent Contractor. The aforementioned ruling therefore clearly stipulated that the Independent Contractor, who hires the labourers, shall fall within the ambit of ‘establishment’ in the Contract Labour Act and accordingly the primary liability to pay gratuity would be on such Independent Contractor. In the event such Independent Contract does not fulfill its obligations of paying gratuity, the same shall be fulfilled by the Principal Employer. The Bombay High Court, thereafter, in its ruling in Cummins (I) Limited and Ors. v. Industrial Cleaning Services and Ors. [2017 (1) ARB 705] held on similar lines that in the event the Independent Contractor does not pay gratuity to its workers, the Principal Employer shall pay the same and thereafter recover the amounts from the Independent Contractor. Further, The Madras High Court recently, in its ruling in Superintendent Engineer, Mettur Thermal Power Station v. Appellate Authority, Joint Commissioner of Labour, Coimbatore and Another [(2012) 3 CLR 243], while relying on the decision of the Madras High Court in Madras Fertilizers Limited, held the Principal Employer shall pay the gratuity and recover the same from the Independent Contractor in case of defaults by the Independent Contractor.

CONCLUSION

1. In the light of the aforementioned legal analysis, the following conclusion can be derived in relation to statutory contributions / deductions pertaining to EPF, ESI and Gratuity: i. In the event the Contractor / Sub-contractor has an independent code, the Principal Employer shall not be liable to make PF deductions / contributions pursuant to paragraph 30 of the EPF Scheme and such liability shall be on the Contractor / Sub-contractor. ii. In the event Principal Employer exercises supervision and control over the workers of the Independent Contractor, then such workers would fall within the ambit of Section 2(9) of the ESI Act, and accordingly the ESI liabilities would accrue to the Principal Employer in such case. Otherwise, such liability would be imputed to the Independent Contractor. If the Contractor / Subcontractor has defaulted in its gratuity payments, the Principal Employer shall be liable to make such payments and thereafter recover such amounts from the Contractor / Sub-contractor.

On a perusal of the aforementioned provisions, it appears that the principal employer shall be liable for all PF contributions, including for those belonging to the labourers/ workers of the independent contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an independent contract, which gives the impression that the principal employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions.

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Legally Speaking

Public servants & rule of law: An analysis

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

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With the lockdown opening again, the realization sets in that the second wave of the pandemic came and became a horrifying nightmare come true. India was in international eyes as India recorded lacks of news infections and thousands of deaths every day. The sudden upsurge in cases saw hospitals filled and an acute shortage of oxygen beds, oxygen cylinders, medicines and oxygen concentrators. What we also saw was people losing their loved ones. Everyday praying to not hear of another death. Undoubtedly, to some extent, every individual has his share of responsibility to stay safe. However, the responsibility of the state and its various organs who have duty to manage and foresee the situation is much more. When the second wave came on its peak, sadly the members of State organs instead of fulfilling their responsibilities committed some grossly negligent acts which may fasten criminal liability upon them. We have examined the criminal liability of these state instrumentalities in the view of the conduct of super spreader events, which directly stem out of maladministration.

WHETHER THERE IS ANY IMMUNITY AGAINST CRIMINAL CHARGES

The answer is no. This can be inferred from a judgement of the Apex court wherein it has held that Council of Ministers are public servants within the meaning of Section 21 of Indian Penal Code (IPC) and thus, offences defined under IPC apply equally to Council of Ministers as well as members of Election Commission. However, this immunity is subject to a procedural requirement provided under Section 197 CrPC.

(i) Officials may be held liable under Section 336 and Section 269 of Indian Penal Code, 1860

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

Now let’s see what happened in India, the event of Kumbh Mela Shahi Snan was allowed to happen without following Covid protocols where even Chief Minister of the State was seen without any mask. It was also reported that thousands took the bath in the Ganges without a mask and COVID-19 negative report. All this happened without taking any proper and reasonable care. These facts clearly make the case of a rash and negligent act which endangered the lives of indefinite amount of people.

Then comes the political rallies. Most of the political leaders were found flouting the Covid protocols i.e., not wearing a mask. Election Commission forced the teachers and investigators to perform their duties in the absence of RT-PCR Test. By virtue of Section 32 IPC, the commitment of an offence by performing an act is equivalent to commitment of offence by not taking any action. Thus, the act of members of Election Commission of being mute spectators to the violations of covid protocols by political parties, it makes them liable under Section 336 IPC read with Section 32 IPC.

Proceeding next, a person who commits any act even when he knows that he by that act may spread a disease which is dangerous to life is punishable under Section 269 IPC. It needs no explanation that officials knew that allowing these super spreader activities in the pandemic without following necessary Covid protocols led to the spread of this deadly disease.

It is also important to note here that the “doctrine of contributory negligence” i.e. that the victim too was negligent along with accused does not apply to criminal cases. Thus, the defense that the people in rallies were themselves negligent would not be considered as a legitimate defense if the officials themselves were negligent under these sections.

(ii) Officials can also be made liable under Sections 337, 338 and 304A IPC

Apart from the liabilities mentioned above, if it is proved that any person contracted the disease only from the place of rally or polling station, these officials can be made liable under Section 337 IPC. Further, if the level of infection was so high that it nearly endangered the life of that patient, the officials would be liable under Section 338 IPC. More severely, if it is proved that the person died due to the infection, the officials can be held liable under Section 304A IPC. In fact, the Allahabad High Court has taken judicial notice of the death of 135 persons who were on election duty during Panchayat elections in the State due to Covid-19 because the social distancing norms were not followed at counting areas.

(iii) Liability under Disaster Management Act, 2005

Clause (b) of Section 51 of the Act may also make them liable because they have not followed the directions issued by Government under this Act. The Union Home Ministry has mandated the strict compliance of wearing masks in public places. The refusal of the wearing of masks by the officials in elections may make them liable under this provision.

Further, Section 55 further makes the heads of Department liable if any offence is committed by a specific department. The conduct of the Election Commission which did not mandate the RTPCR tests during elections makes its officials liable under Section 55 of the Act.

CONCLUSION

Clearly, the facts show incidents of clear injustice to the people. The question arises what can be done? The apex court may take action on its own against the officials if it is of the opinion that injustice has been caused to public. Additionally, anyone can also file PIL in Supreme Court under Article 32 or High Court under Article 226 of the Constitution to remedy the injustice caused because of the deprivation of right to life guaranteed under Article 21 of the Constitution. The courts have now become chief social activists by giving interest to society’s paramount importance and instituting legal actions against the criminal acts happening in the country to protect the rights of its citizens. It’s the time for courts to exercise that power.

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Forum shopping: Responsibility to recuse, but when

The problem of forum shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice.

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Litigant cannot be permitted to browbeat the court by seeking a Bench of its choice.

Justice M.R. Shah

INTRODUCTION

Judges like other human beings are at times prone to succumb to their emotion while delivering their judgment instead of applying proper and sound reasoning to substantiate their decision. While most of the time it goes unnoticed, there are instances when it becomes too evident to be ignored by arguing counsel and justice seeking client before his bench. This change in heart while delivering judgement can be attributed to their prior personal or incidental experience of the Judge. While this unintended bias is possible this is not the case all the time. Such instances are used as a means to secure a judge who has a lenient attitude towards the litigant’s case. This practice of securing a more compassionate judge toward for the litigant is called forum shopping.

While, forum shopping predominantly relates to selection of country on the basis of laws in international transaction which appears more favourable in nature, this concept has now seeped into our own municipal legal system with clients trying to have their case presented before a judge who is considered more inclined to deliver judgement in favour of him or his class of litigant. The concept of forum shopping does not find any place in our statute books but numerous precedents and judgements delivered by Hon’ble Supreme Court and numerous High Courts has composed a basic jurisprudence around it.

SUPREME COURT AND HIGH COURTS’ VIEW ON THIS ISSUE

Justice Gautam Patel of Bombay High Court in the recent case of Raja Mahendragir & Anr v Shankuntaladevi Shankar Puri, came down heavily on the litigant seeking his recusal on the ground that his client will never get justice from him. The contention of litigant and his counsel were on flimsy grounds comprising of a string of judgements delivered on similar matter by him against a class of litigant to which the present litigant belonged. In his application requesting for recusal, he stated that,

“From the orders passed by the Honourable Justice G.S. Patel till this day as well as his way of working of not giving to the real heir enough opportunity to collect the necessary documents, I have become absolutely certain that I will never get justice from him. Hence, our aforesaid matter may kindly be transferred from his Court to some other Court as we have no faith in him.”

Thus, it was an identifiable trend in the Judge’s judgement (whether the trend identified by the litigant was erroneous or not the author does not wish to comment) which prompted the litigant to seek his recusal which was ultimately dismissed.

The Hon’ble Supreme Court has not just disapproved such practice but also depreciated it considering the effect it evidently has on the image of the impugned Judge and the Judiciary as a whole. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors, the court deliberated upon the issue at length and remarked that litigants endeavour for forum shopping cannot be allowed by courts in the interest of impartial justice delivery system. The court further opined that, “A litigant cannot be permitted choice of the forum and every attempt at forum shopping should be crushed with a heavy hand”. The court in the aforementioned case categorised a set of acts which can be considered as forum shopping. Primary among them were.

Requesting the concerned Judge to recuse himself on flimsy grounds of conflict of interest.

In cases where the presiding Judge has a conflict of interest and has an inherent interest in the output of the case, he is required to recuse himself from the bench deliberating upon it. This is because; there is a possibility that the Judgement delivered by the Judge might be biased. While this rule is an unwritten one governed by good conscience and moral rectitude of the Judge, at times, this rule is used by litigants to have a judge recused from the case who has a record of delivering judgements not in favour of litigant belonging to particular class. Such instance puts the Judge in a state of topsy turvy where the Judgement he will be delivering at a future date will most probably be brought to question for its healthfulness.

By stipulating the valuation of suit in manner which put it before a judge or court of preferable jurisprudential standing.

One other way to have the case brought before a favourable court is to have the valuation according to the requirement of the preferred court. The jurisdiction of a court is determined by the plaintiff’s valuation in the plain. For instance under Andhra Pradesh Civil Courts (Amendment), Act, 2018, a case amounting to 20 Lakh Rs will be presented before Junior Civil Judge, cases amounting to between 20 Lakh to 50 Lakh Rs will be before Senior Civil Judge and cases amount to above 50 lakh will be before District Court. The litigant in such a situation will be within his right to stipulate the valuation in his Suit at such amount on reasonable grounds in order that his case may be presented before a judge or class of judge who is more likely to deliver judgement in his favour.

Appeal to superior court on not attaining a favourable Judgement

While this category cannot be considered as a mode of forum shopping per se but it has been used by litigants to have a critical judgement overturned on appeal in favour of him.

The principle laid down in the case of M/s Chetak Construction Case was further reiterated in the recent case of Neelam Manmohan Attavar v. Manmohan Attavar by a division bench of Hon’ble Supreme Court.

The law in this realm was succinctly laid down in the case of Seema Sapra v. Court on its own Motion wherein the court drew support from the Schedule Three of Indian Constitution which provides Oath of Judge for Judges of High Courts and Supreme Court requiring them to duly and faithfully perform the duties of the office they are upon to enter without fear and ill will. The Supreme Court considered the judge’s succumbing to such pressure to recuse from delivering judgement as not fulfilling the very oath they took will entering the coveted office to render service to the people.

In the very case of Seema Sapra, while it was being heard by the High Court of Delhi, a total of 28 judges had to recuse from hearing the case for one reason or another. Furthermore, even at the Supreme Court three judges had to recuse themselves from hearing it on grounds of conflict of interest. Such instance led to imposition of undue burden on the already over burdened courts which are required to hear hundreds of cases every single day.

SOLUTION TO THE PROBLEM OF FORUM SHOPPING

Their cannot be an absolute solution to this nodus of forum shopping. The solution to it lies with the decision of concerned judge on whether he will recuse himself or not. One has to keep in mind that recusal is matter own choosing for the concerned judge. It is open to him to either reject the application for his recusal or to accept it. While an impartial judge is quintessential to the justice deliverty system in our country or for that matter any other country, it is oblivious duty of the concerned judge to discharge the responsibilities he has been bestowed with.

The problem of Forum Shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice. Such penalty will ensure that the litigants and their counsels are aware of possible ramification of their misadventure if it gets exposed before the court.

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Obligation of a father to maintain his son will not come to an end when he attains majority: Delhi High Court on Section 125 of CrPC

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In a brilliant, balanced, bold and brief judgment titled Urvashi Aggarwal & Ors vs Inderpaul Aggarwal in CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay) delivered on June 14, 2021, the Delhi High Court has minced no words to make it clear that the obligation of a father to maintain his son under Section 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother. A single Judge Bench comprising of Justice Subramonium Prasad who delivered this extremely learned, laudable and landmark judgment directed that a sum of Rs 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. The Court observed that, “It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority.” It also did not shy away from observing that, “The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.”

To start with, Justice Subramonium Prasad of Delhi High Court who authored this notable judgment first and foremost sets the ball rolling by observing in para 1 that, “The present revision petition is directed against the order dated 21.04.2018, passed by the Additional Principal Judge, Family court, Tis Hazari, Delhi, declining maintenance to the petitioner No.1/wife and granting maintenance only to the petitioner Nos.2 and 3 herein.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1/wife filed a petition under Section 125 Cr.P.C for grant of maintenance.

c) The respondent/husband instituted a suit for divorce. d) During the pendency of the divorce petition, the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7,000/- per month to the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging the decree of divorce, which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the second marriage.

h) A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1, at the time when the impugned order was passed, was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Manager (HR) with the Airports Authority of India. The monthly income of the petitioner No.1, in the affidavit filed by her in the year 2016, is shown as Rs.43,792/- per month and she has stated that her monthly expenditure is Rs.75,000/-. She also stated that her net income is Rs.37,762/- per month. On the other hand, according to the affidavit dated 06.02.2016, filed by the respondent, he was earning a gross salary of Rs.96,089/- per month.

i) The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40,000/- per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself, she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned, the learned Family Court apportioned the income of the respondent into 4 shares, out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children, as directed by the Family Court, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son, born from his second marriage, it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). It has been held that since the second wife of the respondent herein is also working, she has the liability to bear 50% of the cost of her son, thereby making the share of the respondent herein as 10% towards the child from the second marriage. The order dated 21.04.2018, reads as under:

“8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent, the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 2&3 are concerned, the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However, amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother-in-law and sister-in- law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee, the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares (two for the respondent, one each for the three kids). Each shares comes to 20%. The second wife of the respondent being also working has the liability to bear 50% for son thereby making the share of the respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision petition.

k) It is pertinent to mention here that a number of petitions have been filed by the parties against each other. This Court is not dwelling into the details of those petitions since they are not relevant for the present proceedings.”

On the one hand, the Bench then points out in para 3 that, “The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners.”

On the other hand, the Bench then brings out in para 4 that, “The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal, 2012 SCC OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397(2) of the Cr. P.C. and the pronouncement of the Supreme Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, where the Supreme Court held that ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation, and the universal application of the principle that what is not a “final order” must be an “interlocutory order” is neither warranted nor justified. In V.C. Shukla v. State, 1980 (2) SCR 380 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final.

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

(iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub-section (4) of Section 19 of the said Act. (iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” (emphasis supplied)

In view of the above, this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable.”

To put things in perspective, the Bench then puts forth in para 5 that, “It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.”

As against what is stated above, the Bench then also points out in para 6 that, “Per contra, the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29,25,825/- which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the learned counsel for the respondent that apart from the salary, the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary.”

Be it noted, after hearing the counsel of both the parties and perusing the material on record as stated in para 7, the Bench then envisages in para 8 that, “The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353).”

Simply put, the Bench then states in para 9 that, “Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties.”

It would be worthwhile to mention here that the Bench then without mincing any words states in para 10 that, “The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent, cannot be accepted. The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture.”

As it turned out, the Bench then holds in para 11 that, “The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence.”

Please read concluding on thedailyguardian.com

Finally and far most crucially, the Bench then holds in para 12 that, “The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation, earning about Rs.60,000/- per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two children are living with the mother. After attaining the age of majority, the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court, therefore, failed to appreciate the fact that since no contribution is being made by the respondent herein towards the petitioner No.2, the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible, preferably within 12 months of the receipt of a copy of this order.” It is then held in the last para 13 that, “Accordingly, the revision petition is allowed in part and disposed of along with the pending application.”

In essence, the crux of this notable judgment delivered by Justice Subramonium Prasad of the Delhi High Court is that the obligation of a father to maintain his son will not come to an end when he attains majority and only the mother alone would not maintain her without any contribution by the father just because the son has attained majority! The Court very rightly took into account the rising cost of living and obligated the father to maintain his son till he completes his graduation or starts earning whichever is earlier as this is what is in the best interest of the child and of the family! It is the bounden duty of all the lower courts to abide by this notable judgment in all such similar cases without fail.

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Judicial reforms in India need to go beyond informal calls for inclusivity

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On 7 June 2021, it was reported that the Chief Justice of India, in a virtually closed-door meeting with the Chief Justices of all the High Courts, emphasised that the High Court collegiums must recommend Dalit, tribal, OBC, minorities and women for elevation as judges so that the High Court would truly reflect the vast social diversity of the country.

This move is revolutionary because several adverse remarks had been made in the past regarding the demography of the higher judiciary but little had changed. Mr George F. Gadbois’ (a political scientist) in his book titled ‘Judges of the Supreme Court of India’, stated that 92.2% of the Supreme Court comprised male Brahmins and other forward castes based on empirical data between 1950-1989; fast forward to the present-day scenario, Supreme Court now has only 1 woman judge, 1 judge from the Dalit community and 3 judges from the Parsi, Christian and Muslim minority communities collectively. Further, the Ministry of Law & Justice’s 2020 report on ‘Judges of the High Courts’ stated that only 12% of the judges in the High Courts were women; and, Vidhi Centre for Legal Policy’s 2018 report stated that there were only 27.6% of women judges in the lower judiciary. In 2016, even the former director of the National Judicial Academy had remarked that “The typical Indian judge is Hindu, upper-class, upper-caste and male.”

For an institution which according to the aforesaid data has been a bastion of few select privileged classes of the society; the decision by the CJI to diversify the higher judiciary comes as a move that warrants acceptance with arms wide open. However, in spite of the substantive part of the inclusivity policy being in tune with the ethos of a representative democracy, the existing practises concerning the elevation of judges to the higher judiciary based on inclusivity grounds, does not facilitate its smooth and sociologically legitimate implementation.

A glimpse of the collegium resolution dated 08.05.2019

This was a time when there was no representation from the Scheduled Caste community in the Supreme Court for a decade. Thus, the Supreme Court Collegium elevated a judge belonging to the Scheduled Caste community from the Bombay High Court. While doing so the Collegium resolution stated that “His (the judge from the SC community’s) recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than him”. Now, there are several challenges attached to such ad-hoc elevations. Firstly, the aforesaid statement made by the Collegium makes it look like the only reason why none of the three other senior-most judges of the High Court were elevated is because they were at the right place at the wrong time; secondly, it still does not ensure that representation of judges with non-traditional background in the judiciary would continue in a sustained manner because after all, it took a decades’ time for the Collegium to realise the lack of representation of the SC community in the Supreme Court; and lastly, the lack of a well-defined policy for selection of the candidates belonging to the SC/ST/women/minority communities could exacerbate the allegations of nepotism and favouritism, a charge that the higher judiciary already has been saddled with time and again.

In light of the same, it is natural that the call for diversification by the CJI must be supplemented with procedural policies that both sustain as well as accelerate the prospect of constituting a diverse, democratic and representative judiciary.

JUDICIAL PERFORMANCE EVALUATION

Judicial Performance Evaluation Programmes conduct periodic assessment of the performances of the judges. It dates back to the year 1978 when the government of Alaska conducted the first judicial performance evaluation programme. However, over the years the judicial performance evaluation programmes have evolved across varied array of jurisdictions to meet their own unique needs; some are also meant for enhancing the accountability of the judges apart from determining the career paths of the judges. The 2017 Vidhi Centre for Legal Policy’s report stated that despite the differences among the practice of judicial performance evaluation; there are few commonalities that remain axiomatic across jurisdictions i.e., they are official state-run programmes, data and information on several parameters is collected from a wide audience through survey mechanisms, and the survey results and recommendations are widely circulated.

Further, the 2017 report after wide consultation with eminent jurists, judges, academicians and advocates recommended that India’s judicial performance evaluation programmes must be run by a statutory body or commission that would carry out the surveys annually to evaluate the performances of the judges for the elevation to the higher judiciary. The programme would be conducted in three phases – the first stage would entail the survey which would be filled by peers on the bench, court staff, eminent advocates to name a few; the second stage would carry out the collation of data, and the third and last stage would be the publication of the data in a public domain along with the recommendations made by the body/commission.

The induction of the judicial performance evaluation programmes is not only desirable but even the need of the hour because the aforementioned statistics evinced that the lower judiciary comparatively enjoyed a greater diversity of judges; it gives a fair, if not ideal, pool of candidates whose performances can be evaluated in order to be elevated to the higher judiciary. This would also prove to be a game-changer because not only would it provide for a rational and uniform basis for the elevation/non-elevation of a particular judge to the higher judiciary but also inhibits the scope for favouritism/nepotism, and its annual reports would ensure that the diversification policy is not compromised or ignored over time. Lastly, since the aim of such programmes is also to ensure that merit is rewarded, it would also cause only the meritorious candidates from non-traditional backgrounds to be elevated to the highest echelons of the judiciary; which is in tune with the vision of the drafters of the constitution who envisaged merit as the sole ground for appointment to the judiciary.

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How Madras High Court judge broke his preconceived notions for LGBTQIA+ community

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‘There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are.” ~ Justice A. Venkatesh

The Tale of two brave girls

This movement for change began when two girls named S. Sushma and U. Seema Agarval who were in a romantic relationship with each other faced harassment and mental pressure from their family due to their sexual orientation and therefore decided to run away from their respective homes and shift to Chennai.

S. Sushma had pursued a bachelor’s degree in Mathematics from Madurai and Seema was pursuing a bachelor’s degree in the Tamil language at that time. They both knew each other from the past two years and their friendship in the sue course of time blossomed into a unique, romantic relationship and both of them see each other as their partner for life time. When the parents of the couple received the knowledge of their relationship, they strongly opposed it and started pressuring them, and that’s when they decided to leave Madurai and shift to Chennai to start their new life.

The girls belong to the LGBTQIA+ community. The NGO’s and other members of the community supported the girls and arranged for accommodation for ensuring their protection. Meanwhile, their parents filed different missing FIR’s for each girl and the police began their search. The Petitioners in the apprehension of threat and danger to their life approached the Hon’ble Court of Madras to issue direction to the Police to protect them from any kind of threat and danger.

Justice Anand Venkatesh took note of the facts of the case and arranged for a meeting in the mediation centre for the couple and their parents, he also sat with the parents to understand their viewpoint on the notice of same-sex relationship.

Counselling session were arranged for the parents to understand the same-sex relationship in today’s world and also, to understand their daughter’s emotional state and feelings toward the relationship but nothing good came out of it. No change was recorded in the attitude and thinking of the parents.

For the very first time, the Indian Judiciary has given a helping hand to the LGBTQIA+ community not just by issuing the guildlines for their protection and safety, but also actively took part understand their feelings and emotions, and to break the pre-conceived notion which exists in our society concerning the LGBTQIA+ community.

How did the Judge overcome his Prejudice?

The Hon’ble Judge of the Madras High Court, Justice Anand Venkatesh passed an order while deciding on the Writ Petition no. 7284 of 2021, S. Sushama and another v Commissioner of Police and others, in favour of the Lesbian couple who were continuously subjected to harassment by the police officials after their respective parents filed a missing report against them.

The Judgment is itself is a step towards creating a safe environment for the LGBTQIA+ community in our Country, but it was not easy for him to break this pre-conceived notion about the Gay and Lesbian community which exists in our society.

Justice A. Venkatesh agreed that it was not easy for him to understand the mindset and the situation of the petitioners as he has never encountered anybody belonging to the LGBTQIA+ Community and therefore never had a chance to understand in depth about their emotions and mindset.

For better understanding and the analysis of the situation in hand Hon’ble Justice of the Madras High Court underwent psycho-educative session with various counsellors and professionals who deal with the LGBTQ+ community to understand their issues better.

In a report submitted by the clinical Phycologist Dr Vidya Dinkaran, she stated that the Hon’ble Judge participated in a session with her and broke his flawed notions about the LGBTQ+ community. The Hon’ble Judge after interacting with the Petitioners and the parents realised that “There has been a misconception that went to the cutting edge was how homosexuality is all the time saw distinctly with a sexual undertone (i.e.), a relationship restricted uniquely to sex.

The report stated that how Justice Venkatesh communicated on paying attention to the lesbian couple was the point at which he understood the imperfect notion about the community he had and how two ladies came to be viewed as a couple before the finish of that conversation for him. He came in with the consciousness of the bias he holds. This was developed by seeing how no two heterosexuals in a relationship will be judged promptly as being together just to participate in sex and it shouldn’t be different for any two individuals with different sexual Orientations.

After realising his bias toward this community, Justice Venkatesh interacted with different people belonging to the LGBTQ+ community to deepen his knowledge and understanding of the diversity amongst people of his own country. Also to gain insights on their living situations and the discrimination being faced by them in the society. Therefore, an interaction was scheduled with Dr Trinetra Haldar Gummaraju, MBBS Intern and an influencer from Kasturba Medical College and her mother Ms Haima Haldar. Dr Trinetra, a transwoman herself shared her journey and lived experiences with the judge and Dr L.Ramakrishnan, Vice President, SAATHII.

All these interactions finally broke all his notions about the LGBTQ+ Community and he started looking at them as a normal human being and in the judgement, he confessed that, Dr Vidya Dinakaran and Dr Trinetra and his Guru’s who helped him to break his pre-conceived notion and pulled him out of the darkness.

Justice Anand Venkatesh noticed that a cultural change is required in the approach towards LGBTQIA+ connections. The threats they face are because of the way that their relationship loath cultural authorization. He quoted in his Judgement, S. Sushama and another v Commissioner of Police and others that, 2021:-

“…the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by law there will be a remarkable change in the outlook of the society by recognising same-sex relationships”,

And therefore, in the light of the above-made observations this court feels that there should be stringent laws made by the Legislative Authorities for the LGBTQ+ community to protect them from the harassment, social and mental torture and from prohibiting any kind of activities to change their sexual orientation through means such as black magic or undergoing medical operations.

GUIDELINES ISSUED BY COURT FOR PROTECTION OF THE LGBTQIA+ COMMUNITY

The Hon’ble High Court of Madras issued notice to the Union and the Central Government to make laws that protect them and till the time, the laws do not come into force the following guidelines shall be followed to protect the LGBTQIA+ community who are living in the most vulnerable environment and there is no law for their safety and protection. The guidelines are as follows:

On receipt of a missing complaint of any adult who after the investigation is found to belong to the LGBTQ+ community, the Police officials, in that case, shall shut the complaint without any further actions and harassment to the persons.

The Ministry of Social Justice and Empowerment (MSJE), needs to enrol Non-Governmental Organizations (NGOs) which have the adequate ability and experience in dealing with the issues looked at by the LGBTQIA+ people group. The rundown of such NGOs alongside the location, contact subtleties, and administrations gave will be published on the official website which will be updated regularly.

Anyone belonging to the LGBTQIA+ community, who is facing harassment of any kind can approach the listed NGOs for the protection of their interests.

The Service provider NGOs shall maintain a record of the person in private who seeks help from them and share such data with the Ministry regularly to keep a check on the atrocities faced by them and take measure accordingly.

The offences faced by the person belonging to the LGBTQIA+ community shall be dealt with adequately with the help of the Counsellors and the State Legal Service Authority and in certain cases, law enforcement agencies shall also provide help.

With particularity of issue of convenience, reasonable changes are to be made in existing short stay homes, Anganwadi covers, and “Gramin greh” (a haven home for transsexual people, the motivation behind which is to give asylum to transsexual people, with fundamental conveniences like a safe house, food, clinical consideration and sporting offices. Plus, it will offer help for limit building/expertise improvement of people locally, which will empower them to lead an existence of nobility and regard) to oblige any and each individual from the LGBTQIA+ people group, who require covers or potentially homes. The MSJE will make sufficient infrastructural courses of action in such a manner, inside a time of 12 weeks from the date of receipt of a duplicate of this request.

Any such measures need to be taken for safeguarding the interest of the LGBTQIA+ community and help them to lead a normal life like any other person. The Central Government is also requested to frame such policies to protect the LGTQIA+ community from being harassed by their family members and society.

Awareness programmes to break the prejudices against the LGBTQIA+ community shall be carried out by the concerned department of the Union and State Ministries to spread awareness amongst the people.

LGBTQIA+ RIGHTS IN INDIA: CURRENT SCENARIO

The present scenario in India is that the Apex Court in their Judgement of Navtej Singh Johar v. Union of India (2018) SCC 1, decriminalised Homosexuality between the consenting adults. But there are no laws for the protection of the LQBTQIA+ community in India, they can get married but there are no laws for the legalisation of their marriage which deprives them of many rights which a heterosexual couple have like, buying life insurance for your partner and adopting children etc. Adoption by a single person belonging to the community is recognised but not by same-sex couples. Despite strong political movement in support of Pride Month and the guidelines still today the LGBTQIA+ community continue to suffer on daily basis.

CONCLUSION

The current situation is grim for lesbian, gay, sexually open, and transsexual youth in India. Many faces provocation and tormenting, and to stay away from embarrassment and savagery they regularly skip classes or exit school out and out.

In the past year’s Court decisions has laid down a better guideline for their safety and protection from harassment based on their sexual choices and sexual character, and the Indian government’s position on LGBT rights has developed impressively. Yet, substantially more is expected to ensure individuals based on sexual and sex character in India.

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