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Policy & Politics

Persons, not possession; children, not commodities; girls, not goods

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ABSTRACT

The present research paper aims at touching one of the most sensitized issues in the human society, that is, human trafficking. What is human trafficking? How is it done? Why humans are made victim to such a menace? What are the different forms of human trafficking? What are the causes and the impact of human trafficking on individuals and society? All the questions will be answered in this research paper. In addition to this, we will also talk about the international conventions and protocols such as – Palermo Protocols; UN Convention against Transnational Organized Crimes, 2000; Council of Europe Convention and EU Directives along with the role of UN High Commissioner for Refugees and International Labor Organization. We will also take a brief look at the Indian national legal framework relating to human trafficking like – Indian Penal Code, 1860; Immoral Traffic Prevention Act, 1956; Constitution of India; Information and Technology Act, 2000. After all this, we will go through the Anti – Trafficking Bill, 2018 which is currently in the Parliamentary Standing Committee for re-consideration. We will talk about the loopholes in the bill by closely critiquing it and answer the question, that is, what are the Victim Compensation and Witness Protection Schemes or are there even any, at subsequent stage. Besides, we will take a glance at some of the important and landmark cases and judgments which are adding to the development of human trafficking laws. At last, we will sum up our discussion by giving up some of the suggestions and recommendations that are needed to be taken into consideration in the upcoming Anti – Trafficking Legislations and also to eliminate this despicable evil from the lives of the individuals to make this world a better place for living.

KEYWORDS – Human Trafficking, international legal framework, cases, judgments, Anti – Trafficking Bill 2018, Palermo Protocols.

“People were created to be loved. Things were created to be used. The reason why the world is in chaos is because things are being loved and people are being used.”

-Unknown

These two lines are very well depicting the current situation of our human society. The people are not loved but used. They are being sold in the same manner as the commodities are sold. And, this is the reason why the world is in so much chaos. All the humans are born with certain rights. In the general parlance, we call those rights as human rights. Each and every person enjoys these rights by virtue of being human. And, it is the obligation of the people to respect each other’s rights. Here, the question arises is that are we really fulfilling our duty? Do we really respect the rights of other humans? Is this the kind of humanity that we are talking about these days? Why do we call ourselves as humans even? To answer all such questions, it is expedient to have an understanding about one of the organized crimes that leads to the grave violation of human rights, that is, human trafficking.

Before starting with the concept of human trafficking, let us first start quoting some facts and figures relating to the same to have an idea about the terrible situation across the globe. According to International Labor Organisation,

At any given time in 2016, an estimated 40.3 million people are in modern slavery, including 24.9 million in forced labor and 15.4 million in forced marriage.

It means there are 5.4 victims of modern slavery for every 1000 people in the world.

1 in 4 victims of modern slavery are children.

Out of the 24.9 million people trapped in forced labor, 16 million people are exploited in the private sector such as domestic work, construction or agriculture; 4.8 million persons in forced sexual exploitation, and 4 million persons in forced labor imposed by state authorities.

Women and girls are disproportionately affected by forced labor, accounting for 99% of victims in the commercial sex industry, and 58% in other sectors.

These figures are horrible and insane. But this is what it is! And, the dangerous thing is that these figures are increasing tremendously. This is high time that we should have stricter laws and legislations to combat this global issue of human trafficking.

WHAT IS HUMAN TRAFFICKING?

Merriam Webster Dictionary defines the word “human trafficking” as “an organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labor).” This definition gives us a very narrow understanding as it mainly talks about only two aspects of human trafficking – “prostitution” and “forced labor”. There are many more aspects which are related to human trafficking. All these aspects are defined by an international protocol, that is, Palermo Protocols.

Article 3(a) of Palermo Protocols defines, “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”

We can conclude the above definition by answering three major questions:

What is done?

The recruitment, transportation, transfer, harbor, or receipt of persons.

How is it done?

It is done by creating threat, use of force, coercion, abduction, deception, inducement of alluring payments.

Why is it done?

It is done for exploitative purposes like sexual activities, slavery, bonded labor, organ removal, forced marriage, child soldiers, and what not.

Human Trafficking refers to the trading of persons or quid pro quo of persons for illegal purposes. It is recognized as an organized crime and also known as modern-day slavery.

FORMS OF HUMAN TRAFFICKING

There are numerous ways by which people are trafficked and exploited to execute the heinous crime of human trafficking. Let us have a brief discussion about the same.

ORGAN HARVESTING

The trafficking in organs involves removing a part of the body, commonly kidneys and liver, for the purposes of illicit trading. The trading of organs is increasing day-by-day at international levels. In this techno-savvy world, as the technology for transplantation of organs is increasing, the organ trafficking is also rising up. A victim, either forcefully or freely, gives the consent for the organ removal because they are in the need of money, but are then cheated, or are paid less than the promised price.

FORCED MARRIAGE

Forced Marriage is when one person or both the persons are put under pressure to marry someone or to marry each other respectively against their will. The consent in such cases is obtained fraudulently or by undue influence or by coercion. Generally, the objective of forced marriage is either to take individual outside the country or to gain access in a country for some illegal purposes.

SENDING CHILDREN IN WARS

The one of the most vulnerable groups of human trafficking are children because it is easier to manipulate them. They do not have developed sense of danger and they can be easily recruited to the armed conflicts as soldiers. They may be used either for frontline combat by engaging them directly in the acts of violence or within auxiliary roles of informants. This type of practice is most prevalent in parts of Africa and Asia.

LABOUR EXPLOITATION

This refers to the situation where people are coerced to work, either voluntary or involuntary, in hazardous conditions. Due to lack of employment opportunities in their region, they tend to migrate from their inhabitant areas to the place of work. And, they are generally engaged in factories, mines, industries where they are not paid even minimum wages for their work. Moreover, they are not allowed to leave their workplace. This is one of the main reasons why illegal immigration is heading up. Debt Bondage and Child Labor form the parts of forced labor.

DRUG TRAFFICKING

Drug Trafficking refers to the cultivation, manufacturing, distribution and sale of the substances which are restricted by the Drug Prohibition Laws. Children are made soft targets to smuggle illegal drugs from one place to another.

SEX TRAFFICKING

Sex Trafficking is when an individual engages in a commercial sex act as a result of force, fraud or coercion. Sexual exploitation occurs in various settings including brothels for prostitution purposes, pimping, strip clubs, massage parlors, private homes, sex tourism, pornography, mail order brides or bride trafficking and many more. Women and Children are the most common victims of sex trafficking. LGBT identifying individuals, especially transgender, are increasingly found to be victim of sex trafficking.

SLAVERY

The word ‘slavery’ refers to the conditions where people are treated as the property of another person, household, company, corporation or government. This is the status of a person over whom ownership rights are exercised. Slaves are held against their will from the time of their capture, purchase, or birth, and are deprived of the right to leave, to refuse to work, or to receive compensation in return for their labor. Forced domestic servitude also forms the part of slavery where people are forced to work for long hours for little pay. They may also suffer physical and sexual abuse.

FORCED CRIMINALITY

This is when somebody is forced to carry out criminal activity through coercion or deception. It includes begging, pick-pocketing, bag snatching, ATM theft, selling of counterfeit goods and all. Mostly, children are exposed to the vulnerability of forced criminality.

These crimes are happening in every corner of the world and can include any person regardless of age, socio-economic background or location. Women, children and transgender are the most vulnerable groups exposed to human trafficking. As a result, each form can look very different. The statistics of these crimes are rising at an alarming level despite of having so many legislations, both at national and international levels, to combat this global issue.

HUMAN TRAFFICKING: CAUSES AND EFFECTS

To effectively understand the concept of human trafficking or modern slavery, we must first understand what causes it and how it affects those involved. The root cause of human trafficking is traffickers. But what attracts traffickers to do such type of crimes? The answer is simple. It is the vulnerability that creates opportunity for traffickers. Now, the major question arises that what are vulnerable conditions and actually who falls prey to such crimes?

The conditions are – poverty; unemployment; displacement due to wars, political instability, and natural disasters; lack of education and knowledge; poor and broken family conditions; social and cultural practices; inadequacy of proper legislations and law enforcement agencies. The vulnerable groups include women, children, and LGBTQ communities, undocumented migrant persons, poverty-stricken and downtrodden. It is easy to manipulate these people and traffickers are trained to identify vulnerability. That’s why; these people become the soft-targets of these heart-core traffickers.

The effects of human trafficking are too harsh to handle for the victims. It has the power to impact someone’s life forever. The consequences are not only limited to the extent of physical trauma but also comprise mental, psychological and sociological harms. The physical trauma includes sexually transmitted diseases, diabetes, cancer, injuries, infections, and other illnesses. A lack of proper medical care allows these conditions to spread and worsen often affecting an individual’s health permanently. It also has a severe impact on the mental health and social life of the victim, including, depression, stress, memory loss, anxiety, fear, guilt, shame, difficulty in relationships, isolation from the society and many more.

Not only victims, but the traffickers are too affected by the outcomes of human trafficking. The traffickers also experience trauma because of what they see and do to others, and many traffickers have been victimized themselves at some point in their lives.

INTERNATIONAL LEGAL FRAMEWORK

There are a number of laws and legislations that are adopted by international forums in order to combat the menace of human trafficking. Let us have a brief look about the major international legislations.

The United Nations Convention against Transnational Organized Crime (UNTOC), Adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. The Convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime. Countries must become parties to the Convention itself before they can become parties to any of the Protocols. The three Protocols are as follows:

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003), is the first global legally binding instrument with an agreed definition on trafficking in persons. Article 3(a) talks about the definition of trafficking in persons and Article 3(b) states that ‘consent’ becomes irrelevant when the child is below 18 years of age. Also, Article 5 tells us about the criminalization.

The Protocol against the Smuggling of Migrants by Land, Sea and Air (2004), deals with the growing problem of organized criminal groups to smuggle migrants, often at high risk to the migrants and at great profit for the offenders.

The Protocol against Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (2005), is the first legally binding instrument on small arms and its purpose is to promote, facilitate and strengthen cooperation among State Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.

The Universal Declaration of Human Rights of 1948, which declares in Article 4 that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”

The International Covenant on Civil and Political Rights of 1966, in Article 8 states that “(1) No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. (2) No one shall be held in servitude. (3) No one shall be required to perform forced or compulsory labour.”

The Convention to Suppress the Slave Trade and Slavery of 1926, which states in Article 2 that the parties agreed “to prevent and suppress the slave trade and to progressively bring about the complete elimination of slavery in all its forms.”

The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956, which states in Article 3(1) that “the act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offense under the laws of the States Parties to this Convention and persons convicted thereto shall be liable to very severe penalties.”

The Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others of 1949. The Preamble to this Convention provided that “Whereas prostitution and the accompanying evil of traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Article 17 thereof provides that States parties are required to “undertake, in connection with immigration and emigration, to adopt or maintain such measures ASE are required, in terms of their obligations under the present Convention, to check the traffic in persons of either sex for the purpose of prostitution.”

The Convention on the Elimination of All Forms of Discrimination against Women of 1979, which, in Article 6, calls upon States parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

The Declaration on the Elimination of Violence against Women of 1993, which defines “violence against women” to include “rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.”

The Convention on the Rights of the Child of 1989, which states that States parties must “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”

The Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution, Child Pornography of 2000.

The Optional Protocol Stipulates, in Article 10, that States parties must “take all necessary steps to strengthen international cooperation by multinational, regional and bilateral agreements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.”

The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000. The Optional Protocol requires States parties to ensure that “persons who have not attained the age of 18 years are not compulsory recruited into their armed forces.”

The ILO Convention No 182 on the Elimination of the Worst Forms of Child Labour of 1999, which provides in Article 3 “all forms of slavery or practices similar to slavery such as the sale and trafficking of children.”

The Convention on the Rights of All Migrant Workers and Members of their Families of 1990, which in Article 11 provides that “No migrant worker or member of his or her family shall be held in slavery or servitude or required to perform forced or compulsory labor.”

Despite of having numerous legislations at international level, the basic rights rather human rights are at abysmal. This should be the first priority, or we should say, this is the need of the hour to tackle the crisis of human trafficking.

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Policy & Politics

Cannot ask daughter-in-law to pay mother-in-law’s maintenance under Senior Citizens Act: Bombay High Court

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Bombay High Court

In a significant development with far reaching consequences, we saw how just recently on May 6, 2022, the Bombay High Court in a remarkable, rational, refreshing, and robust judgment titled Sheetal Devang Shah vs Presiding Officer in Writ Petition No. 3323 of 2019 observed without mincing any words that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman’s income. The Court observed that, “We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law).” It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines ‘children’ includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law. While observing thus, the Bench of Justice SS Shinde and Justice Revati Mohite Dere of Bombay High Court set aside the Maintenance and Welfare of Parents and Senior Citizens Tribunal’s order to the limited extent.

To start with, this learned, laudable and landmark judgment sets the ball rolling by first and foremost putting forth in para 1 that, “This Bench has been specially constituted to hear the petitioner’s aforesaid petition and other petitions, by the Hon’ble Chief Justice. Both the members of this Bench preside over their respective Benches and have to disturb their regular boards, to assemble only for these matters.

1.1. On 27th April 2022, we heard the learned counsel for the parties from 4:30 p.m. to 7:00 p.m. and closed the matter for orders.

1.2. This Writ Petition under Article 226 of the Constitution of India is filed by the petitioner thereby taking an exception to the order dated 16.08.2019 passed by respondent No.1 – Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal (for short ‘Tribunal’).

1.3. The only substantive prayer in the petition reads as under:-

ii. That this Hon’ble Court be pleased to call for the records and proceedings from the Respondent No.1 and after perusing the legality and propriety of the impugned order dated 16.08.2019 passed by the Respondent No.1, this Hon’ble Court be pleased to issue a Writ of Certiorari and/or any other appropriate Writ, order or direction under Article 226 of the Constitution of India and quash and set aside the impugned order dated 16.08.2019 passed by the Respondent No.1 at Exhibit-A;.”

In hindsight, the Bench then recalls in para 2 that, “During the pendency of this petition, the Division Bench of this Court (Coram: S. C. Dharmadhikari and G. S. Patel, JJ.), by order dated 18.09.2019, directed thus,

“5.(c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.”

2.1. The aforesaid direction / interim order is in force till date.””

While elaborating on the background, the Bench then states in para 3 that, “Background facts leading to the filing of this petition are as under:-

3.1. Respondent No.1 / non-applicant has passed the order (impugned in the present petition) in the proceedings instituted by Smt. Nalini Mahendra Shah – respondent No.2 herein and her husband – Mahendra Shah. Since during the pendency of the present writ petition, husband of respondent No.2 died, with the permission of the Court, his name has been deleted from the array of the respondents. Respondent No.4 – Mr. Devang Shah is the husband of the petitioner as also the son of respondent No.2. Present petitioner – Ms. Sheetal Shah is the daughter-in-law of respondent No.2 and respondent No.3 (deleted).”

As an aside, the Bench then mentions in para 4 that, “For the sake of convenience, parties shall be referred to by their names and not by their status before the Tribunal or this Court.”

To put things in perspective, the Bench then envisages in para 5 that, “Nalini Shah and her husband Mahendra Shah filed the application No.SDO/SCNo.SDO/JNVMP/Desk-6/SR-38 of 2018 before the Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Briefly stated contentions of the applicants therein viz., Nalini Shah and Mahendra Shah, were as under:-

a. that, they are staying at Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056 (hereinafter referred to as the ‘residential premises’).

b. Devang Shah is the only son of Nalini Shah and Mahendra Shah and Sheetal Shah is their daughter-in-law. They all are residing in the aforesaid residential premises.

c. Nalini Shah is the housewife and her husband Mahendra Shah (deceased) was employed in the renowned business of diamond and diamond jewellery at Opera House. Mahendra Shah retired from the said business in the year 2016 and he had no other residential premises, save and except the residential premises at Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056.

d. Devang Shah is the employee of Supergems India Private Limited and Sheetal Shah is working as a fashion designer. Both of them are receiving handsome salary.

e. the aforesaid residential premises is in the name of Mahendra Shah and Nalini Shah.

f. It was alleged that Sheetal Shah and Devang Shah are unable to look after Nalini Shah and Mahendra Shah and from last one year, they are not looking after necessities of life of Nalini Shah and Mahendra Shah. From January – February 2017 till the filing of the application, they were harassed in the said residential premises though they are the owners of the said house. Sheetal Shah and Devang Shah, both, are torturing Nalini Shah and Mahendra Shah, physically as well as mentally.

g. Nalini Shah is suffering from asthma, vergio, back pain and leg pain.

5.1. In the aforesaid background, facts and circumstances, the said application was filed by Nalini Shah and her husband Mahendra Shah.”

To recapitulate, the Bench then recalls in para 25 that, “The Tribunal framed the following four issues of enquiry, which are as under:-

“1) Are the applicants capable of supporting themselves and meeting their basic needs ?

2) Is there any evidence that the respondent is not taking proper care of the applicant and is causing mental and physical harassment to the applicants?

3) Can the request made by the applicant be accepted?

4) What will be the orders?””

As it turned out, the Bench then observed in para 26 that, “The Tribunal, after adverting to the contentions raised by the parties and documents placed on record, observed that at the relevant time, applicant No.1 – Nalini Shah was 77 years old and applicant No.2 – Mahendra Shah was 79 years old. It is also observed that the said applicants are not in a position to work. The Tribunal observed that though it is contended by Sheetal Shah, that Nalini Shah is having share trading business and also Mahendra Shah has business of diamond and jewellery, Sheetal Shah has not submitted any evidence before the Tribunal to that effect. It is further observed, that even if the said contention of Sheetal Shah is accepted, in that case also, considering the age of Nalini Shah and Mahendra Shah, it cannot be said that they are capable of supporting themselves from their own earnings. It is also observed that the family members viz., Devang Shah and Sheetal Shah should treat Nalini Shah and Mahendra Shah with kindness, consideration and respect and that they should provide them basic necessities for a peaceful life. It is also observed that the kindness, consideration and respect cannot be bought with money. It is the responsibility of Devang Shah and Sheetal Shah being son and daughter-in-law of Nalini Shah and Mahendra Shah to pay attention to the daily needs of the applicants and to try their best to meet those needs. Nalini Shah and Mahendra Shah are dependent upon Devang Shah and Sheetal Shah for their daily necessities, mental support and care and accordingly, issue No.1 is answered in the affirmative.”

As we see, the Bench then mentions in para 27 that, “Upon perusal of the original record of the proceedings instituted by Nalini Shah, we are in respectful agreement with the said observations made by the Tribunal while answering issue No.1 except to the extent that, it holds Sheetal Shah, (daughter-in-law of Nalini Shah) alongwith Devang Shah, liable to pay maintenance.”

It cannot be glossed over that the Bench then notes in para 28 that, “We have carefully perused the observations made by the Tribunal while answering issue No.2 i.e., whether there is any evidence that Sheetal Shah is not taking proper care of Nalini Shah and Mahendra Shah and is causing mental and physical harassment to them. We have no doubt in our mind, that the observations made and the findings recorded by the Tribunal, that Sheetal Shah and Devang Shah are not taking proper care of the applicants and causing mental and physical harassment to Nalini Shah and Mahendra Shah, are in consonance with the documents on record. We have also carefully perused the various complaints filed by Nalini Shah and Sheetal Shah, and we find that there is no peace and harmony in the house. There is unrest and also there is a mental and physical harassment to the old aged parents of Devang Shah. While exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when we find that the observations/findings recorded by the Tribunal, while answering issue No.2, that Sheetal Shah and Devang Shah in the said application are causing mental and physical harassment to Nalini Shah and Mahendra Shah, are made keeping in view the material placed on record.”

Furthermore, the Bench then enunciates in para 29 that, “The Tribunal, while discussing issue No.3 i.e., “Can the request made by the applicant be accepted?”, has made reference to various documents placed on record by the parties and in particular documents in relation to the said residential premises wherein, the parties are residing, and has reached a conclusion, that the residential premises is in the name of Mahendra Shah, who has inherited the same, from his parents. The Tribunal has also considered the effect of giving such property as a gift by Mahendra Shah to Devang Shah and after adverting to the provisions of Section 23 of the said Act, which provides for protection of life and property of senior citizens and as such, has correctly reached the conclusion, that the applicants’ (Nalini and Mahendra Shah) request for exclusion of Devang Shah from the suit property can be granted. It would be relevant to reproduce hereinbelow the provisions of Section 23(1) of the said Act, which reads as under:-

“23. Transfer of property to be void in certain circumstances.-

(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.””

It deserves mentioning that the Bench then mentions in para 30 that, “The Tribunal, ultimately concluded, that Sheetal Shah and Devang Shah are not taking proper care of Nalini Shah and Mahendra Shah, but are causing mental and physical harassment to them. As already observed, the age of Nalini Shah and her husband Mahendra Shah was 77 and 79 years respectively, at the relevant time, when they preferred the application. It is brought on record by the parties, that during the pendency of the petition, Mahendra Shah died. At present, Nalini Shah, wife of Mahendra Shah, is aged about 82 years. On couple of dates of hearing before us, she attended Court proceedings sitting on a wheel chair, that itself shows that she is certainly dependent upon Sheetal Shah and Devang Shah for physical and mental support.”

What’s more, the Bench then discloses in para 31 that, “After answering the issues framed, the Tribunal accepted the case of Nalini Shah and Mahendra Shah and directed Devang Shah and Sheetal Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses, by depositing the said amount, in the bank accounts of Nalini Shah and Mahendra Shah.”

Most crucially, the Bench then minces no words to hold in para 32 that, “We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), ‘children’ include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in-law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs.25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable.”

It cannot be lightly dismissed that the Bench then clearly states in para 33 that, “The Tribunal has directed Devang Shah and Sheetal Shah to handover the possession of entire residential premises i.e., Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056 to Nalini Shah and Mahendra Shah (since deceased) in a peaceful manner. In our opinion, said direction given by the Tribunal is legally and factually sustainable, in as much as, when the application was decided by the Tribunal, the subject property stood in the name of husband of Nalini Shah, namely, Mahendra Shah. Relying upon the various documents placed on record including criminal complaints and other materials, the Tribunal has correctly reached a conclusion, that there is a continuous mental as well as physical harassment to Nalini Shah and Mahendra Shah (since deceased).”

Quite ostensibly, the Bench then holds in para 34 that, “In that view of the matter, we are of the opinion that the view taken by the Tribunal, after adverting to the material placed on record, is legally as well as factually sustainable. Therefore, we confirm the order passed by the Tribunal except the direction to Sheetal Shah to pay jointly with Devang Shah, maintenance of Rs.25,000/- to Nalini Shah and Mahendra Shah. Therefore, the direction to Sheetal Shah to that extent is quashed and set aside. However, as already observed, the son of Nalini Shah namely, Devang Shah is obliged to pay the said maintenance amount to Nalini Shah.”

Most remarkably, the Bench then holds in para 35 that, “The Tribunal in clause (3) of the operative order has observed that, within 15 days from the date of receipt of the order, Sheetal Shah and Devang Shah shall handover the entire possession of the residential premises in question, to Nalini Shah and Mahendra Shah (deceased) in a peaceful manner and at the same time, observed that Sheetal Shah and Devang Shah, should make separate arrangements for their own accommodation elsewhere. Keeping in view the said direction, we are of the opinion that Devang Shah, being the husband of Sheetal Shah is obliged to provide separate accommodation to Sheetal Shah and her sons elsewhere.”

In addition, the Bench then directs in para 36 that, “With the above observations, we dismiss the writ petition.”

Not stopping here, the Bench then holds in para 38 that, “Since the interim relief is operating till date, we deem it appropriate to grant further six weeks’ time to the petitioner, to act in compliance with the directions contained in clause (3) of the operative part of Tribunal’s order i.e. Sheetal Shah and Devang Shah should hand over the entire possession of the residential premises in question, to Nalini Shah in a peaceful manner. In the said clause (3), the Tribunal has also directed Sheetal Shah and Devang Shah to make separate arrangements for their own accommodation elsewhere. As already observed in para 35 hereinabove, Devang Shah (respondent No.4), being husband of Sheetal Shah and thus guardian of two sons is legally obliged to provide them accommodation befitting his status, income and assets.”

For sake of clarity, the Bench clarifies in para 39 that, “The observations made hereinabove, are restricted to adjudication of the present proceedings and will have no bearing on the proceedings pending between the parties and the orders passed therein, by the appropriate courts of competent jurisdiction or forum provided under the Statute.”

Finally, the Bench then concludes by holding in para 40 that, “All concerned parties to act upon ordinary copy of this order duly authenticate by court Sheristadar.”

In a nutshell, the Bombay High Court has made it unequivocally clear that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law under Senior Citizens Act. We have discussed the reasons in detail. All courts must abide by what the Bombay High Court has held. No denying it!

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Policy & Politics

SC SENTENCES NAVJOT SINGH SIDHU TO ONE YEAR’S RIGOROUS IMPRISONMENT IN 1988 ROAD RAGE CASE

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While sending a very loud, strong and clear message to one and all that no one can be above the law, the Apex Court most recently on May 19, 2022 in a latest, learned and landmark judgment titled Jaswinder Singh (Dead) Through Legal Representatives vs Navjot Singh Sidhu and others in Review Petition (Crl.) No.477 of 2018 in CRL.A. No.60 of 2007 with Review Petition (Crl.) No.478/2018 in CRL.A. No.58/2007 Review Petition (Crl.) No.479/2018 in CRL.A. No.59/2007 (Arising out of impugned final judgment and order dated 15-05-2018 in Crl.A. No. No. 60/2007 passed by the Supreme Court of India) and cited in 2022 LiveLaw (SC) 498 has enhanced the sentence of senior Congress leader and former Indian cricket team member Navjot Singh Sidhu to one year rigorous imprisonment in a 1988 spontaneous road rage accident in which a 65-year-old person named Gurnam Singh had died. The untoward incident actually occurred on December 27, 1988 at a traffic junction in Patiala when a dispute pertaining to the right way of vehicles led to altercation with Navjot Sidhu pulling out the deceased from his vehicle and assaulting him with fist blows in a fit of rage. Even Sidhu himself could not have believed that the person whom he beat would die as everything happened suddenly without any preparation or past enmity. This alone explains why the Bench of Justice Sanjay Kishan Kaul and Justice AM Khanwilkar rejected the plea for fastening culpable homicide not amounting to murder charge under Section 304A of the IPC. Very rightly so!

We know that Sidhu was earlier let off with a fine of Rs 1000 and the court spared him a jail term. In 2018, the top court had convicted Sidhu for the offence of “voluntarily causing hurt” but had acquitted him in connection with the culpable homicide charges as Sidhu had no intention to murder. But now the maximum possible sentence under Section 323 of the IPC has been awarded to the former Punjab Congress President and former Indian cricketer Navjot Singh Sidhu as the victim’s family filed a review petition before the top court while pressing for enhancement of punishment. Sidhu will now be taken into custody by Punjab police to serve out the sentence.

The key points of this judgment are as follows:

1. When a 25 year old man, who was an international cricketer, assaults a man more than twice his age and inflicts, even with his bare hands, a severe blow on his (victim’s) head, the unintended consequence of harm would still be properly attributable to him as it was reasonably foreseeable – The indulgence was not required to be shown at the stage of sentence by only imposing a sentence of fine and letting him go without any imposition of sentence.

2. The hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same. This may be understood where a blow may be given either by a physically fit person or to a more aged person. (Para 24)

3. Even though any harm might not be directly intended, some aggravated culpability must be attached if the person suffers a grievous hurt or dies as a result thereof. (Para 32)

4. While a disproportionately severe sentence ought not to be passed, simultaneously it also does not clothe the law courts to award a sentence which would be manifestly inadequate, having due regard to the nature of the offence, since an inadequate sentence would fail to produce a deterrent effect on the society at large – A long period had lapsed by the time the appeal was decided cannot be a ground to award the punishment which was disproportionate and inadequate. (Para 25 -32)

BACKGROUND

To start with, this notable judgment authored by Justice Sanjay Kishan Kaul for a Bench of Apex Court comprising of himself and Justice AM Khanwilkar sets the ball rolling by first and foremost putting forth in para 1 that, “The original controversy emanates from an FIR dated 27.12.1988 under Section 304/34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) registered by the Sub-Inspector of P.S. Kotwali of Patiala District, Punjab on the basis of the information given by one Shri Jaswinder Singh (Informant) about an occurrence around 12:30 p.m. at the traffic light of Battian Wala Chowk. The Informant and one Avtar Singh (PW-3 and PW-4 respectively) were travelling with the deceased, Gurnam Singh in a Maruti Car driven by the deceased. Apparently, a dispute arose on the right of way between the accused and the deceased and respondent No.1 (the first accused) came out of his vehicle, pulled out the deceased from his vehicle and inflicted fist blows. As per the Informant his endeavour to intervene resulted even in the second accused (respondent No.2) (not mentioned in the FIR) getting out of the vehicle and giving fist blows to the Informant. It was alleged that the car keys of the deceased’s car were removed by the accused and they fled from the scene of occurrence. PW-3 and PW-4 took the deceased in a rickshaw to the hospital where the doctors announced that Gurnam Singh was dead.”

To put things in perspective, the Bench then envisages in para 2 that, “A post-mortem was conducted by Dr. Jatinder Kumar Sadana (PW-2), who recorded that the injuries were ante-mortem in nature and caused by a blunt weapon though he reserved his opinion on the cause of death as it could apparently be given only after receiving the report of the pathologist. The Pathologist’s report dated 09.01.1989 noticed a large number of abnormalities in the condition of the deceased’s heart and did not notice any pathology insofar as the brain is concerned. Even after the Pathologist’s report, PW-2 did not give a definite opinion regarding the cause of death of Gurnam Singh. Thereafter, PW-2 wrote to the Civil Surgeon, Patiala on 11.01.1989 requesting that the case be referred to Forensic Expert, Government Medical College, Patiala, as a result of which a Medical Board was constituted consisting of six members. Two of these members were examined as PW-1 and PW-2 but a very cryptic opinion was given by PW-1 with disinclination to give any further clarification when sought for by the prosecution.”

As it turned out, the Bench then enunciates in para 3 that, “A chargesheet dated 06.03.1989 was filed on 14.07.1989 under Section 304 of the IPC against respondent No.2, exonerating respondent No.1. During the course of trial, the Sessions Court exercised its powers under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) and after recording the statement of the Informant summoned respondent No.1 to stand trial. The Informant also filed a private complaint against both the accused for commission of offences under Sections 302/324/323 read with Section 34 of the IPC. Both the cases were consolidated and on 20.08.1994 charges under Section 304 Part I were framed against both the accused arising from the FIR. While in the complaint, charges were framed under Section 302 of the IPC against respondent No.1 and under Section 302/34 of the IPC against respondent No.2. Charges under Section 323/34 of the IPC were framed against both the accused for causing hurt to the Informant.”

As we see, the Bench then states in para 4 that, “The trial court post trial acquitted both the accused vide judgment dated 22.09.1999. In terms of the judgment of the trial court, the death was not caused by subdural haemorrhage and the deceased suffered sudden cardiac arrest under stress because of which he fell and received two abrasions leading to subdural haemorrhage. The death was caused due to violence but it was not certain as to when precisely Gurnam Singh had died.”

Furthermore, the Bench then mentions in para 5 that, “The State and the complainant both moved the High Court vide separate appeals. The High Court in terms of the judgment dated 01.12.2006 opined that the cases of the two accused were to be considered separately. The High Court convicted respondent No.1 under Section 304 Part II of the IPC based on the testimony of the doctors, PW-1 and PW-2. As per their testimony, the cause of death was cardiac failure and all that they had stated was that the cardiac condition of the deceased was very weak. On the opening of the skull, subdural haemorrhage was present over the left parietal region and brain. It was the haemorrhage which caused the death of the deceased and not the cardiac arrest. Insofar as respondent No.2 is concerned, he was held guilty under Section 304 Part II read with Section 34 of the IPC as well as Section 323 of the IPC.”

Simply put, the Bench then states in para 6 that, “Three criminal appeals were filed before this Court by the two accused and the Informant.”

To be sure, the Bench then postulates in para 7 that, “The High Court judgment was analyzed by this Court, wherein it was opined that the testimony of the witnesses was trustworthy. Merely because there was a relationship between the Informant, Avatar Singh and the deceased, and more witnesses were not examined, could not have led to a conclusion that the case had not been proved beyond reasonable doubt.”

Adding more to it, the Bench then mentions in para 8 that, “The post-mortem report was examined closely which indicated only two external injuries – one on the temporal region and another on the left knee of the deceased, and both were abrasions. The doctors had opined that the second injury could be the result of the fall and, thus, it is most unlikely that a person would simultaneously aim at the head and also the knees of the victim while giving fist blows. Respondent No.1 possibly delivered more than one fist blows while only one of them landed on the head of the deceased and others missed the target. This Court did not agree with the observations of the High Court that the death was caused by subdural haemorrhage and not cardiac arrest. There was stated to be uncertainty regarding the cause of death of Gurnam Singh and no weapon had been used, nor was there any past enmity between the parties, and what happened was the result of an instant brawl.”

Still adding more, the Bench then notes in para 9 that, “The case against respondent No.2 was held not to have been proved and mere presence of respondent No.2 with respondent No.1 was not sufficient to result in a conviction based on common intention. Even for the offence under Section 323 of the IPC, respondent No.2 was held not guilty.”

In hindsight, the Bench then recalls in para 10 that, “The Court recognized that there were lapses in investigation but then people are not convicted on the basis of doubts. Respondent No.1 was held not guilty of causing the death of Gurnam Singh, and the only conclusion which was found acceptable was of the respondent No.1 causing voluntary hurt to Gurnam Singh which is punishable under Section 323 of the IPC. It was noticed that respondent No.1 was an international cricketer and a celebrity at the time of the incident and at times there was an endeavour to turn a blind eye to the violations of law committed by celebrities. On the question of sentence, a fine of Rs.1,000/- alone was imposed vide order dated 06.12.2006, since the incident was 30 years old at the time, there was no enmity between the parties and no weapon was used.”

It deserves mentioning that the Bench after hearing both sides then observes in para 24 that, “We have given our thought to the matter. In our view, some material aspects which were required to be taken note of appear to have been somehow missed out at the stage of sentencing, such as the physical fitness of respondent No.1 as he was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. The blow was not inflicted on a person identically physically placed but a 65 year old person, more than double his age. Respondent No.1 cannot say that he did not know the effect of the blow or plead ignorance on this aspect. It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne. In fact, this Court to some extent had been indulgent in ultimately holding respondent No.1 guilty of an offence of simple hurt under Section 323 of the IPC. The question is whether even on sentence, mere passage of time can result in a fine of Rs.1,000/- being an adequate sentence where a person has lost his life by reason of the severity of blow inflicted by respondent No.1 with his hands. The hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same. This may be understood where a blow may be given either by a physically fit person or to a more aged person. Insofar as the injury caused is concerned, this Court has accepted the plea of a single blow by hand being given on the head of the deceased. In our view, it is this significance which is an error apparent on the face of the record needing some remedial action.”

While mentioning relevant US Apex Court judgments, the Bench then states in para 34 that, “The US Supreme Court has also moved in the same direction in Payne v. Tennessee 501 US 808 (1991) while examining the aspect of the “victim impact statement” in a case of capital offence at the time of sentencing. The court considered the aspect from the dissenting judgment in the case of Booth v. Maryland 482 U.S. 496 (1987) which emphasized on “reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” The words of Justice Benjamin Cardozo in Snyder v. Massachusetts 291 US 97 (1934) bring out that “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.””

To put it differently, the Bench then observes quite forthrightly in para 35 that, “Thus, a disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings. Indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system. (Shri P. Babulu Reddy Foundation Lecture, Victims of Crime – The Unseen Side by Dr. Justice A.S. Anand, Judge, Supreme Court of India (as he then was) (1998) 1 SCC (Jour) 3. Delivered at Hyderabad on 28th September 1997.).”

For clarity, the Bench then stipulates in para 36 that, “We noticed the aforesaid judgments to repel the contention of learned senior counsel for the respondent that the victim should have no say in the matter of enhancement of sentence.”

It is worth noting that the Bench then clearly states in para 38 that, “We are not setting forth much about how the investigation proceeded initially, how the court had to intervene to see that the relevant people are charged, the manner of leading of evidence, the hesitancy of doctors all of which weighed in this Court opining that a case beyond reasonable doubt could be only of one under Section 323 of the IPC. We do believe that the indulgence was not required to be shown at the stage of sentence by only imposing a sentence of fine and letting the respondent go without any imposition of sentence.”

Quite significantly, the Bench then holds in para 39 that, “The present case is not one where two views are possible such that review should not be exercised. It is a case where some germane facts for sentencing appear to have been lost sight of while imposing only a fine on respondent No.1 and, therefore, no question of choosing between two possible views arises.”

CONCLUSION

Finally and far most significantly, the Bench then concludes by directing in para 40 that, “The result of the aforesaid is that the review applications/petitions are allowed to the aforesaid extent and in addition to the fine imposed we consider it appropriate to impose a sentence of imprisonment for a period of one year rigorous imprisonment to be undergone by respondent No.1. The parties are left to bear their own costs.”

In essence, the Apex Court has made it indubitably clear that there is merit in the review petition of victim’s family. We thus see that the punishment for Sidhu is enhanced from just Rs 1000 fine to one year rigorous imprisonment in jail. It is really a fine gesture on the part of Navjot Singh Sidhu to humbly accept the Supreme Court verdict without any ifs and buts and he tweeted saying clearly that, “Will submit to the majesty of law…” No denying it!

“The High Court judgment was analyzed by this Court, wherein it was opined that the testimony of the witnesses was trustworthy. Merely because there was a relationship between the Informant, Avatar Singh and the deceased, and more witnesses were not examined, could not have led to a conclusion that the case had not been proved beyond reasonable doubt.”

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COVID VACCINE: POLICY AND LAW

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Vaccine

INTRODUCTION

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

REASONING OF THE COURT

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

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

PRUDENT MENTION OF FOREIGN JURISDICTIONS

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

CONCLUSION

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

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Sedition law: How to interpret the recent developments

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

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

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

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

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

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

TARA SINGH GOPI CHAND V. STATE 

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

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

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

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

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

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

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

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

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Policy & Politics

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

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

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

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

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

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

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

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

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

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

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

Answer to Question No.1: –

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

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

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

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

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

Answer to question No.2: –

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

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

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

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

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

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

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

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

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Policy & Politics

My brush with the PMO: Part I

Anil Swarup

Published

on

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

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

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

***

The initial forays at the PMO weren’t very smooth

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

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

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

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

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

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

***

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

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

{Excerpts from “No More a Civil Servant”}

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