PROHIBITION THROUGH THE LENSES OF HISTORY AND THE CONSTITUTION - The Daily Guardian
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Policy & Politics

PROHIBITION THROUGH THE LENSES OF HISTORY AND THE CONSTITUTION

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LESSONS FROM HISTORY

When one tells you ‘no’, do you feel the urge to do what you’ve been told not to, even more? The answer is yes, and there is a reason behind it, It’s called psychological reactance. That is not to say that the mind rebels against any and all imposition of authority, but yes, it does happen. Psychological reactance may or may noy have played a role in making prohibition a failure in the USA, but many other things certainly did. Samuel Freeman, Professor of Philosophy and Law at UPenn called the law which gave rise to prohibition “a failed experiment.” It is no secret that it led to an increase in crime rates, corruption and much more. It did not eliminate drinking, but induced a change, saloons disappeared, drinking among women became more common, who had previously avoided it because of the rowdy environment at these establishments etc.

In Russia, in order to ensure that the soldiers are better prepared as opposed to their position in 1905, in the war against Japan, sale of vodka was banned in 1914, and is generally tallied as a total failure on the part of the government. A similar effort was made by Mikhail Gorbachev to combat the country’s Syria drinking problem. but for having reached similar ends as the prohibition in the USA, this attempt was abandoned in 1987.

On the economic front in the USA, the prohibition ground to a halt an entire industry. For example, 1300 breweries in 1916 became zero in 1926; 318 wineries in 1914 were reduced to a mere 27 by 1925 and so on. Tax Revenue went from $365m to a meagre $13m etc.

THE INDIAN EXPERIMENT

India as an amalgamation of cultures, has had no religious backing to alcohol prohibition, as have countries like Yemen, Afghanistan etc, which are fundamentally Islamic countries, and for them a direct prohibition is found in the Holy Quran. The only direct (which is actually indirect) mention of prohibition, is under Art.47 of the Directive Principles of State Policy.

The first state to ban alcohol was Gujarat, where it remains so to this day. The 1949 law, was challenged in the Supreme Court, where it was upheld. A number of states had such bans in place for nearly two decades post independence, which were subsequently revoked. A 2015 article, in light of discussions of sucha ban being brought in Bihar, by Nidheesh MK explains how other states had fared thus far with the experiment of prohibition. It has since been reintroduced in Mizoram.

There have been numerous reports about the alcohol ban conditions in Gujarat where a former IPS Officer turned lawyer has termed this ban as farcical, or another where the former CM, Shankersinh Vaghela called it a sham. In Bihar, the ban introduced in 2016 is facing a similar reality. A sitting Member of Parliament from Bihar termed this law a failure, and fittingly, a national level survey has found that Bihar as a state consumes more alcohol than Maharashtra, the latter having no such ban in place. Much like the USA and opposite to what the Bihar CM claimed while bringing this law, it has not led to a reduction in crime, and on the other hand has led to a stretched out judiciary, having to deal with an increased number of cases. Mr. Guru Prakash, Assistant Professor, University of Patna suggested, in an article for the Print that the ban should be lifted so as to use the revenue therefrom to compensate for low GST collection.

Kerala had also introduced a near complete ban on alcohol in 2014, but the same had to be revoked by June, 2017 because of the massive losses incurred, which was by some estimates close to 700 billion. A November 2018 CAG report stated that Bihar had suffered a loss of approx. 1400 Cr as a result of this prohibition.

THE RECENT CHALLENGE

Original petitions challenging the prohibition in Gujarat were filed in 2018, followed by five more in 2019. The following year 2 civil applications were filed in support of continued imposition of the ban. The challenge is based on two primary counts- violation of Articles 14 and 21, that is, the law being manifestly arbitrary by allowing temporary permits etc and second, that it violates the Right to Privacy, recognized as a facet of Art. 21 by the Supreme Court in the landmark K.S Puttaswamy judgement.

SCOPE OF THE RIGHT TO PRIVACY

The judgement in K.S Puttaswamy ‘covered expansive terrain’ as Siddharth Narrain put in in an article for The Wire, and it is argued before the Gujarat High Court that prohibition violates this right of privacy. It is not the intention to scrutinize the privacy argument being put before the court, but to suggest in light of the core holdings of the mammoth 540 page judgement, whether an individual’s right to consume alcohol would be covered within it.

Dr. Justice Chandrachud writing for himself, Khehar CJ, Agrawal and Abdul Nazeer JJ., found that there was a negative right against state interference.He wrote that privacy is the constitutional core of human dignity and it protects intimacies like the home, as well as a right to be left alone; Justice Nariman said that such a right must at least cover three aspects, one of them is personal choice. Vast scores of legal literature has been cited from the world over to substantiate this argument. It does therefore seem, that what a person does within their home is protected, may that be consumption of liquor or something else. There is no doubt a positive duty on the state to protect people, and the argument resorted to often, in support of such bans is that people are safer, but there is ample evidence to show that the intended results are not being translated into reality. Such a positive duty, cannot become the basis of denying each and every person within the state the right to do what they wish, within the confines of their home.

OTHER LAWS SUPPORTING THIS CONCLUSION

Prohibition on alcohol consumption in Gujarat and Bihar has not just infringed provisions of liberty and privacy enshrined in our constitution but also numerous international instruments, including but not restricted to, “The International Covenant of of Civil and Political Rights” and particularly its Article 17 which stipulates that an individual’s right to privacy shall not be infringed in a n unlawful manner. Moreover, the law restricting such rights should be backed by a reasonable justification which does not find a place in the aforementioned two states.

An irony behind the prohibition lies in the fact that India, despite having played a significant role in drafting of the Universal Declaration of Human Rights, has violated the very basic tenet of liberty and privacy enshrined in its Articles 3 (Liberty) & 17 (Privacy. The state has not only the responsibility to ensure compliance with the constitution but also ensure that the country is in line with international law.

CONCLUSION

Article 13 of our founding document imposes a twofold obligation on both the Legislature & Executive and the Judiciary to ensure that no law should be enacted and enforced which is in contravention of Fundamental Rights enshrined in Part III of the Indian Constitution. While Our homes are safe havens, away from the hustle and bustle of this fast paced world, and any attempt of the state to interfere with what goes on inside, cannot be accepted. State imposed morality, and especially one that takes such an intrusive stance cannot be held to be in consonance with the principles of democracy. It has been shown, by both history and the examples from within India, that prohibition as an idea doesn’t work- whether as a result of consequent economic loss, or otherwise, by a failure of state machinery, to impose, or control the burgeoning of an alternative, unregulated, illegal market.

We must learn from history as we look to the future.

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Policy & Politics

Disciplinary proceedings continuing ad infinitum would be destructive of the rule of law: Delhi High Court

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

While granting relief to CBIC officer named Anish Gupta, the Delhi High Court in an extremely learned, laudable, landmark and latest judgment titled Anish Gupta vs Union of India in J-1 W.P. (C) 2267/2022, CM APPL. 6521/2022 (for Ad-Interim Relief), CM APPL. 10543/2022 (for additional documents) & CM APPL. 10544/2022 (Exemption) and J-2 W.P. (C) 2590/2022, CM APPL. 7398/2022 (Stay), CM APPL. 7399/2022 (Exemption) & CM APPL. 7400/2022 (Exemption) that was reserved on June 3, 2022 and then finally pronounced on July 5, 2022 has minced absolutely no words to hold most forthrightly that allowing disciplinary proceedings to continue ad infinitum would not only be highly prejudicial to an individual but is also destructive of the rule of law. Of course, this begs the moot question: Why should the disciplinary proceedings be allowed to continue ad infinitum? Also, it must be asked: How can the individual right to get speedy justice be held to ransom in the most arbitrary and whimsical manner?

To start with, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Siddharth Mridul for a Bench of Delhi High Court comprising of himself and Hon’ble Mr Justice Anoop Kumar Mendiratta sets the ball rolling from para 1 itself wherein it is put forth that, “The present Writ Petitions are in the nature of cross-petitions against the common order dated 29.07.2021, passed by the Central Administrative Tribunal (hereinafter referred to as “CAT”). Writ Petition No. 2267/2022 has been preferred by one Shri Anish Gupta against the Union of India and Ors. (hereinafter referred to as the “Petitioner”). Writ Petition No. 2590/2022 has been preferred by Union of India against the Petitioner herein. Since the facts and issues are common, both these petitions were heard together and are being disposed off by way of this common order.

BRIEF FACTS

(i) The Petitioner was serving as Officer on Special Duty (Legal at the Central Board of Indirect Taxes and Customs), when he was suspended on 21.08.2013.

(ii) He was served with a Departmental Charge Sheet/ Memorandum of Charge dated 16.07.2015, pursuant to an incident of July, 2013.

(iii) Admittedly no criminal investigation or prosecution was ever initiated or contemplated against the Petitioner.

(iv) Since the Departmental Inquiry, as contemplated under the extant rules did not commence within the stipulated time, the Petitioner filed OA 1396/2016 before the CAT praying for quashing the aforesaid Charge Sheet.

(v) Vide Order dated 13.05.2016, CAT granted the Respondent-Union of India, 04 (four) months time to complete the Disciplinary Proceedings arising from the subject Charge Sheet.

(vi) Since, the Union of India did not comply with the aforesaid directions; the Petitioner was constrained to file OA 3426/2016 before the CAT, seeking a declaration of closure of the said Charge Sheet. The Union of India admittedly did not file any application for extension of time.

(vii) The aforesaid OA 3426/2016 remained pending for a period of about 04 (four) years before the CAT and the Petitioner herein simultaneously was subjected to Disciplinary Proceedings. Despite this, vide an order dated 22.12.2020, CAT granted further extension of 06 (six) months to the Union of India to complete the proceedings, while granting liberty to the Petitioner to approach the Tribunal if the same was not competed.

(viii) Despite the efflux of almost 05 (five) years from the issuance of the Charge Sheet and the aforesaid grant of two extensions by the CAT, the Departmental Inquiry was still not completed.

(ix) Hence, in terms of the liberty granted by the CAT, the Petitioner filed MA No. 1880/2021 before the CAT for closure of Disciplinary Proceedings.

(x) The Union of India also caused to be filed MA No. 1879/2021 for further extension of time, but admittedly after the expiry of time granted to it by the Tribunal, vide the said Order dated 22.12.2020.

(xi) Vide the impugned Order dated 29.07.2021, the CAT has allowed the Petitioner’s MA No. 1880/2021 (for closure of the Charge Sheet) and rejected the Union’s MA No. 1879/2021 (for extension of time). The CAT further directed that the sealed cover qua the Petitioner be opened forthwith, and he be granted promotions at par with his juniors.

(xii) Subsequently, MA No. 3647/2021 was filed by the Petitioner seeking clarification/ modification of certain inadvertent errors that had crept in the order dated 29.07.2021.

(xiii) During the pendency of MA No. 3647/2021 before CAT, the Union of India filed W.P.(C) No. 2590/2022 before this Court and also opposed the said MA No. 3647/2021 pending before the Tribunal inter alia on the ground of challenge pending before this Court. Given the pendency of the Writ before this Court, the Petitioner withdrew his MA No. 3647/2021 pending before Ld. Tribunal to approach this Court, and accordingly filed W.P.(C) No. 2267/2022 before this Court.”

ISSUE:-

As things stand, the Bench then observes in para 7 that, “Thus the primary issue that arises for our consideration in these proceedings, is whether the Union of India was entitled for further extension of time as prayed for by it before the CAT. If the answer to the above is in the negative; what then would be the consequences of such a rejection.”

ANALYSIS

To be sure, the Bench then lays bare in para 8 that, “We have given our thoughtful consideration to the submissions canvassed across the Bar as well as perused through the relevant documents placed on the record. We are of the considered opinion that the Petitioner’s Writ Petition must succeed for the reasons elaborated hereinbelow.”

While citing the relevant case law, the Bench then fortifies its stand by mentioning in para 9 that, “In Prem Nath Bali (supra), a case with facts analogous to the present Petition, the Hon’ble Supreme Court held that :-

“28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then effort should be made to conclude within the reasonably extended period depending upon the cause and the nature of the enquiry but not more than a year.” [Emphasis Supplied].”

As an aside, the Bench then states in para 10 that, “Immediately thereafter, the Central Vigilance Commission (CVC) issued a Circular dated 18.01.2016 containing instructions to comply with the said directions of the Hon’ble Supreme Court in all Disciplinary Proceedings including those involving CBI investigations, in Prem Nath Bali (supra).”

Quite rightly, the Bench then states in para 11 that, “In view of the foregoing, the Petitioner’s contention that the Respondent-Union of India has failed to abide by the dicta of the Hon’ble Supreme Court in Prem Nath Bali (supra) as well as the CVC Circular, ex-facie carries force.”

As we see, the Bench then discloses in para 12 that, “The Respondent-Union of India has sought to urge that the Petitioner’s reliance on Prem Nath Bali (supra) is misplaced as the said judgment is per incuriam and was rendered only in the peculiar facts of the case. It is urged that the ratio thereof is mere obiter. It was further submitted that the Circular dated 18.01.2016 issued for following the said precedent of the Hon’ble Supreme Court in Prem Nath Bali (supra) is also merely directory and compliance thereof is not mandatory.”

Be it noted, the Bench then specifies in para 13 that, “We cannot commend ourselves to accept the aforesaid contentions. The Respondent- Union of India has not placed any material to show that the said judgment is per incuriam, as asseverated. A mere ipse dixit, or a bald assertion cannot a fortiori render a judgment of the Apex Court as per incuriam.”

Quite forthrightly, the Bench then holds in para 14 that, “Under Article 141 of the Constitution of India, the law laid down by the Apex Court is binding on all Courts throughout the territory of India. We too are bound by the judicial discipline of Article 141 of the Constitution of India and the principle of stare decisis. We cannot, in law and the facts attendant, declare the judgment of the Hon’ble Supreme Court as per incuriam. On the contrary, once it is discernible that the said judgment of the Supreme Court is applicable to the facts of this case, we are duty bound to de rigueur apply the same.”

No doubt, the Bench has a valid point when it observes in para 15 that, “Even if the CVC Circular is arguendo assumed to be directory and not mandatory- as sought to be canvassed by the Respondent — there must exist cogent, persuasive and compelling reasons for noncompliance or non-adherence of the same. The Respondent cannot merely decide not to comply with the CVC circular, without persuasive and tenable reasons, as such a course of action would not only be impermissibly capricious and arbitrary action on the part of the Respondent but also render the said CVC circular as nugatory rather than merely directory as contended.”

Needless to say, the Bench then states in para 16 that, “The facts of the present case also do not provide for any scope to grant any indulgence to the Respondent. It cannot be said that the Respondent did not receive ample opportunities to conclude their Departmental Proceedings. An authority must be strictly held to the standards by which it professes its conduct to be judged.”

While elaborating on the sequence of events, the Bench then enunciates in para 17 that, “The following dates shed light on the cavalier and casual manner in which the Respondent has sought to pursue the proceedings against the Petitioner herein :-

(i) 21.08.2013 : Petitioner was suspended, while contemplating Disciplinary Proceedings against him.

(ii) 12.02.2015 : The suspension was revoked on this day.

(iii) 16.07.2015 : The Departmental Charge Sheet was issued and served upon the Petitioner after a further 5 month delay.

(iv) 31.07.2015 : Reply was submitted promptly by the Petitioner.

(v) 04.03.2016 : For 08 months thereafter, no Inquiry Officer was appointed, when the time prescribed limit is only 15 days.

(vi) 18.04.2016 : The Petitioner challenged the Departmental Charge Sheet vide OA 1396 of 2016 before the CAT.

(vii) On 13.05.2016, the first CAT Order was passed, directing the Respondent to complete the inquiry within 04 (four) months.

(viii) On 03.10.2016, after expiry of the said period of 04 (four) months, an OA 3426/2016 was filed by the Petitioner seeking closure of the impugned proceedings, on the ground of the enquiry not being completed within the time stipulated by the CAT, vide order dated 13.05.2016.

(ix) Vide order dated 22.12.2020, the OA pending before the CAT for more than four years whilst the inquiry proceedings continued, but were not completed during this long further period of more than four years; the CAT disposed off the same and granted further time of 6 (six) months to the Respondent to complete the Disciplinary Proceedings.”

As anticipated, the Bench then maintained in para 18 that, “Thus, the CAT was extremely generous in granting two extensions to the Respondent-Union of India, vide Order dated 13.05.2016 for 04 (four) months, and another after more than four years, vide Order dated 21.12.2020 granting further extension for 06 (six) months. The Respondent has evidently received a time period of more than 05 years, which is many times more than the time period contemplated under the dicta of the Hon’ble Supreme Court in Prem Nath Bali (supra) and the CVC circular; for completion of the Departmental Proceedings; and yet failed to conclude the said proceedings.”

Most significantly, the Bench then minces absolutely no words to hold clearly in para 23 that, “There is no gainsaying the legal position that the Disciplinary Proceedings cannot continue ad infinitum. Allowing such proceedings to continue ad infinitum would not only be highly prejudicial to the Petitioner herein but destructive of the Rule of Law. The Respondent-Union of India, being a ‘State’ under Article 12 of the Constitution is bound to act in a fair non-discriminatory, reasonable and non-capricious manner. The conduct of the Respondent in the facts of the present over a long period of 05 years and not merely on one two dates of hearing, disentitles it for any discretionary relief of extension of time.”

No less significant is what is then stated aptly in para 24 that, “Once the application for extension of time to complete Disciplinary Proceedings filed by the Respondent was rejected, the Disciplinary Proceedings did not survive and all steps taken subsequent thereto by continuing the Disciplinary Proceedings were manifestly arbitrary, illegal and non-est in the eyes of law.”

It cannot be lightly dismissed that the Bench then maintains in para 25 that, “The contentions on behalf of Union of India regarding the Petitioner not cooperating in completion of Disciplinary Proceedings after the impugned Order dated 29.07.2021 are mere bald assertions averments and do not warrant acceptance by us.”

Quite frankly, the Bench then points out in para 26 that, “Had the extension to continue disciplinary proceedings been granted, there was no question of opening sealed cover in terms of K.V. Janakiraman (supra). However, axiomatically, the application for extension of time was categorically rejected. Hence, the direction to open sealed cover cannot be faulted with.”

For sake of clarity, the Bench then in its best wisdom seeks to clarify in para 27 that, “It is not in dispute that no other Disciplinary Proceedings were contemplated against the petitioner. The use of the words “the pendency of any disciplinary proceedings” in para 6, and observation in Para 7 of the order impugned before us, to the effect that benefits thereunder “shall be subject to the outcome of the disciplinary proceedings” appear to be wholly unwarranted and have created unnecessary anomaly, warranting interference therewith in the instant petition. The aforesaid limited and apparent error of CAT has caused unnecessary prejudice to the petitioner and resultantly in the interest of justice, the said unwarranted words are required to be eschewed from the said para 6 and 7 of the impugned common Order.”

CONCLUSION

Most forthrightly, the Bench then holds in para 28 that, “For the foregoing reasons, we hold:-

(i) That the CAT had rightly rejected the request of the Respondent for extension of time for completion of Departmental Proceedings. Consequent to such rejection, the Departmental Proceedings stood lapsed. As a further Consequence, the direction given by the CAT to open the sealed cover and to consider the Petitioner for promotion cannot be faulted with.

(ii) Accordingly, in the above peculiar facts and circumstances, the Writ Petition filed by the Union of India bearing W.P.(C) No. 2590/2022, assailing the rejection of their application for extension of time has no merit and it is hereby dismissed.

(iii) The Writ Petition filed by the Petitioner herein bearing W.P. (C) No. 2267/2022 is allowed in the aforesaid terms. The proceedings arising from the Departmental Charge Sheet dated 16.07.2015 no longer survive and stand closed. All consequential proceedings will also terminate and be considered non-est ab initio. The Petitioner must therefore be given all consequential benefits, including the necessary promotions at par with his juniors, within 04 weeks of the receipt of this judgment.”

Finally, the Bench then concludes by holding in para 29 that, “All the pending applications stand disposed of. No order as to costs.”

In sum, we thus see that the Delhi High Court has made it indubitably clear that the disciplinary proceedings continuing ad infinitum would be destructive of the rule of law. So there can certainly be no justification for such proceedings to dilly dally on one pretext or the other. Also, there can be no gainsaying that they must be concluded at the earliest and not at the latest. We thus see that in this leading case the Delhi High Court very rightly grants relief to CBIC officer named Anish Gupta.

Most significantly, the Bench then minced absolutely no words to hold clearly in para 23 that, “There is no gainsaying the legal position that the Disciplinary Proceedings cannot continue ad infinitum. Allowing such proceedings to continue ad infinitum would not only be highly prejudicial to the Petitioner herein, but destructive of the Rule of Law. The Respondent-Union of India, being a ‘State’ under Article 12 of the Constitution is bound to act in a fair non-discriminatory, reasonable and non-capricious manner.”

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Policy & Politics

Evolution of the IAS

Anil Swarup

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Will it survive?

It was unprecedented but it happened. The Prime Minister chose to vent his ire on the Indian Administrative Service (IAS) and criticized the premier civil service in no uncertain terms. This was done in the Parliament. Only he can explain why he said what he said. Ironically the Prime Minister’s Office (PMO) is run primarily by the IAS. He even chose a non-economist IAS officer over a known non-IAS economist to head the Reserve Bank of India. So, can we conclude that the days of the IAS are over?

During the days of the “Raj”, the bureaucracy was used as a tool to perpetrate a regime that could enable the rulers to collect revenue and to maintain law and order to sub serve the economic interests of the crown. It was obvious that the top echelons of the Indian bureaucracy, namely the Indian Civil Service and Indian Police were created to fulfill these objectives. To begin with, the entry to these services was restricted to the British. When the doors were finally opened to the ‘locals’, the process of recruitment was such that not many Indians could afford to give it a try. However, with the dawn of independence, the recruitment system underwent a change, as did the eco-political environment. Thus, as the objective conditions went into a transitional phase, so did the subject, the bureaucrat. It was obvious that these important tools of socio-economic engineering could not remain insulated from the churning that was taking place around him. In fact, a great debate took place to ascertain whether these instruments were equipped and motivated to carry out the task of building a new India. Finally, thanks to the stirring defense by Sardar Patel, the two services survived and they were re-christened as the Indian Administrative Service and the Indian Police Service. It was felt that the tools were inherently competent to handle and build the newly born nation.

The objective conditions kept changing during the 70 years of Indian independence as democracy found roots in the periphery of Indian polity as well. The dominant role of the bureaucrat underwent a sea change. This transition has been slow and painful as the bureaucrat gradually condescended from the ivory tower into the reality of Indian democracy. There was now being sought a different type of ‘commitment’, which on occasions got degenerated into a demand for commitment to persons rather than policies. The steel frame came under tremendous pressure during the dark days of emergency and the chaos that followed. The bureaucracy had to live with stable autocracy and unstable political chaos.

The objective socio-political conditions too underwent a transformation. If ‘emergency’ was a watershed in terms of political history of independent India, the ‘Mandalisation’ of Indian society was the one in the socio-political dimension. The bureaucrat had to contend with these changes.

From the controlled economy and direct participation in the economic development of the country during the first three decades to a move towards abolition of ‘licence-permit raj’, the transition has not been a very easy one. The role itself is undergoing a change from a pure regulator to that of a facilitator. ‘Liberalization’ and ‘globalization’ became the key words during 1990s and bureaucracy had to redefine its role in this fast-changing economic environment.

Bureaucracy in general and the IAS in particular face different set of challenges now. The “war” between the Centre and the States being one of them. This “war” threatens the essence of All India Services as unusual demands are being made on the officers to side with one ‘faction’ or the other. The commitment being sought is of a different nature that threatens the entire edifice. What happened in the case of West Bengal Chief Secretary not being allowed by the Chief Minister to attend the meeting convened by the Prime Minister is one of the many examples that sets everyone thinking.

Some in the IAS are themselves responsible for making it difficult for the service. Increased awareness amongst the common man about their rights and the ability to highlight every misdemeanour in the social media makes it difficult for a civil servant to get away with such actions. It is not that such misdemeanours didn’t happen earlier as some Raos of the service would like the world to believe. The fact is that not all that happened earlier got to be known.

Another development relating to the number of civil servants, primarily the IAS and the IPS, is in the context of their joining politics immediately after retirement (some are seen to be doing so even while in service). This has seriously impacted the perception about the objectivity of these services. Pliability, instead of honesty and efficiency, is seen as the primary determinant for selecting officers for critical posts.

Almost seven decades have gone by and we now witness re-emergence of the debate on whether the Indian Administrative Service has served the purpose for which it was constituted and whether there is a need to continue with this elite service. The jury is still out. It will perhaps be debated for a few more years before the final verdict is announced. Perhaps the verdict will still not be announced. However, this time around there is no Sardar Patel. What will ultimately clinch the issue will be the performance of the individuals who constitute this group. It will depend on their capability to evolve as professionals in the process of development, on their resolve to resist petty temptations for temporary gains, on whether they are in demand on account of their competence and fair play. In a market-driven economy, they will survive if they add value. It will also depend on whether the IAS gets to be known by the likes of M N Buch, B K Chaturvedi, Yogendra Narain, J S Deepak, Asheesh Singh, or by those who despite being in minority are bringing a bad name to the service on account of their manipulative skills and high visibility. And, it will finally depend on whether the powers-that-be allow the former category of officers to thrive.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

Will Shiv Sena be able to stop Shinde’s arrow?

Political upheaval should not impede development; it is very important to pay special attention towards farmers.

Vijay Darda

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Last week, I aired my anguish over the turn of events in the politics of Maharashtra through this column. My distress was not about any particular political party at all. My approach has always been that the common people should get relief by way of development. It has been the feeling of the common man that in the last two and a half years, most of the development works, other than Covid management, have come to a standstill. The common man has nothing to do with politics. He needs development. Now that the political earthquake has settled down a bit, my only expectation from the ruling party and the opposition is that the development works should not stop.

There was speculation about the sudden earthquake in the politics of the state, but no one had any apprehension that the dice would turn like this. No one would have imagined that BJP would crown Eknath Shinde as the chief minister of Maharashtra and Devendra Fadnavis would return to power as the deputy chief minister! Actually, all this is part of the BJP’s far-reaching strategy. BJP has always raised the issue of dynastic politics and attacked such parties across the country where the show is being managed by one family. The attack on Shiv Sena can be called part of this strategy. However, the Shiv Sena of Uddhav Thackeray had crossed swords with Prime Minister Narendra Modi, BJP’s Chanakya and Union home minister Amit Shah and Devendra Fadnavis.

Suddenly, the rug was pulled from under Shiv Sena. When the strategy to trap Sena was being formulated, no one got any inkling about it. The MLAs who first reached Surat and then Guwahati with Eknath Shinde had no idea that the BJP would make Shinde the chief minister. Devendra Fadnavis announced that he will not be a part of the government with Shinde as the chief minister but subsequently joined it after the BJP announced its participation in the new government. This sudden turnaround took everyone by surprise because people were assuming that Fadnavis would be the chief minister and Shinde would be his deputy. After this, there was a consultation between Prime Minister Narendra Modi and Amit Shah, and Fadnavis was asked to join the government because by doing so he would be able to help Shinde more. Moreover, participation in government gives access to the entire machinery and files. In this way, the BJP released the arrow and hit the bull’s-eye. The BJP tread so cautiously only to ensure that it is not seen as power-hungry and at the same time Uddhav Thackeray does not get sympathy. By making a Maratha chief minister, the BJP has tried to break the ground of Sharad Pawar’s politics as well. Shinde is originally from Satara and Thane has been the hub of his politics. The western Maharashtra region he hails from is a stronghold of the Nationalist Congress Party. Eknath Shinde will certainly make a dent into the NCP vote base there and weaken it.

There should be no hesitation in saying that the Shiv Sena stands scattered as of now. The civic polls for Mumbai, Thane and Navi Mumbai are round the corner. After that, the Lok Sabha elections of 2024, then the Assembly elections are to be held. In such a situation, the path is not going to be easy for Thackeray’s Shiv Sena. The MLAs left with the splintered party are mostly from Mumbai. Now the fight is going on to establish who retains Shiv Sena? Who will claim the bow and arrow? Who will be the real successor of Balasaheb Thackeray? And the biggest question is who will finally prevail? Uddhav Thackeray has made a move. He has ousted Eknath Shinde from the party but it has to be kept in mind that Shinde is the chief minister of the state at present. He enjoys a mass base and is a generous personality. Uddhav Thackeray cannot afford to underestimate him.

While stepping down from the post of the chief minister, Uddhav Thackeray issued a number of GRs in the last few days. Governor Bhagat Singh Koshyari had even sought an explanation for that. On his way out, the Thackeray government changed the name of Aurangabad to Sambhaji Nagar, Osmanabad to Dharashiv and Navi Mumbai airport to DB Patil airport. The NCP and Congress did not even protest! Once the governor issues the order to prove the majority, the government ceases to have the right to make decisions. Therefore, these decisions are legally invalid. It is obvious that the Thackeray government did this to create a crisis for the BJP as the BJP has also been in favour of renaming Aurangabad and Osmanabad. However, even BJP had not taken any decision in this regard during its five-year tenure and the Thackeray government had also not taken a decision in its tenure of two and a half years. Thackeray made the move at the last moment.

However, this politics will continue. But the main issue is that the development works of people’s importance should not stop, irrespective of the nature of politics and the intensity of the resultant earthquakes. Right now, the farmers are a worried lot all over the state. The seeds sown have gone waste in the absence of rain. Manure has been wasted too. Banana, pomegranate, grape and orange orchards have suffered heavy damage. Under the circumstances, it is very important for the government to pay special attention towards the farmers. The farmers should get all kinds of help. The pace of development works which have been stalled should be accelerated. To improve the deteriorating economic situation after Covid, substantial efforts are needed. The government needs to pay serious attention towards these issues, keeping aside politics!

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

The nature of politics is such that it is never at peace. The one who is in power and the one who is out, both keep strategising. Who gives in to whom completely depends on the political manoeuvring and shrewdness. Right now, the million dollar question is will Shiv Sena be able to stop Shinde’s arrow? Nevertheless, the most important thing is that the development works should continue unhindered in the state.

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Policy & Politics

Cancellation of bail cannot be limited to the occurrence of supervening circumstances: SC

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It would be very pertinent to note that the Apex Court in a notable judgment titled Deepak Yadav vs State of UP in Criminal Appeal No. 861 of 2022 (Arising out of S.L.P (Crl.) No. 9655 of 2021) pronounced on 20 May, 2022 has minced just no words to hold unambiguously that, “Cancellation of bail cannot be limited to the occurrence of supervening circumstances.” We thus see that the Bench of Apex Court comprising of CJI NV Ramana, Justice Krishna Murari and Justice Hima Kohli observed so while it allowed the appeal against a judgment of the Allahabad High Court which granted bail to a murder accused. It merits mentioning that the Bench while setting aside the bail observed that the High Court has not taken into consideration the criminal history of the accused, nature of crime, material evidences available, involvement of the accused in the said crime and recovery of weapon from his possession. The Court rightly added that the cancellation of bail cannot be limited only to the occurrence of supervening possibilities.

At the outset, this brief, brilliant and balanced judgment authored by Justice Krishna Murari for a Bench of Apex Court comprising of CJI NV Ramana, himself and Justice Hima Kohli sets the pitch in motion by first and foremost putting forth in para 2 that, “The present appeal is directed against the judgment and order dated 22.10.2021 passed by the High Court of Judicature at Allahabad, Lucknow Bench (hereinafter referred to as “High Court”) in Bail No. 11848 of 2021 filed by Respondent No.2 – Accused with a prayer to release him on bail in Case Crime No. 16 of 2021 registered at PS Para, Lucknow under Sections 302 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) during pendency of trial. By the said judgment, the High Court granted bail to Respondent No.2/Accused on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the trial court subject to certain conditions.”

To put things in perspective, the Bench then envisages in para 3 that, “Briefly, the facts relevant for the purpose of this appeal are that the Appellant/Informant Deepak Yadav lodged an FIR being Crime Case No. 16 /2021 on 09.01.2021 at PS Para, Lucknow under Section 307 IPC against Respondent No. 2/Accused Harjeet Yadav, co-accused Sushil Kumar Yadav and two unknown persons. The allegations against the said accused persons were that on the night of 08.01.2021, at around 8.30 PM, Appellant’s father Mr. Virendera Yadav (deceased) was on way to his home from the lawn located near Jaipuria School and at the same time, the accused persons took position on Kulhad Katta Bridge and fired at him with the common intention to kill the deceased. The bullet shot hit his right cheek and made its exit through the other side leaving him severely injured. In view of his serious condition, the people present on the spot informed the local police station and admitted him at the Trauma Centre, Medical College, Lucknow. The Appellant/Informant, on receiving the information about his injured father rushed to the Trauma Centre with his mother Smt. Sunita Yadav and elder sister Ms. Jyoti Yadav. The Appellant’s mother asked her husband about the incident to which he replied that he was shot by Respondent No.2/Accused Harjeet Yadav and one, Sushil Yadav and that they were accompanied by two other persons as well. The statement given by the deceased was noted down by Sri Mahesh Kumar Chaurasia, DSP/ACP Chowk, Lucknow and Sri. Ashok Kumar Singh, SI/First Investigating Officer.”

While narrating further on the chain of events, the Bench then mentions in para 4 that, “Respondent No. 2/Accused was arrested by the police on 13.01.2021 and one country made pistol with two live cartages were recovered from him. The Appellant/Informant’s father passed away on 14.01.2021 on account of which the case was converted to one under Section 302 IPC. The co-accused, Sushil Kumar Yadav surrendered before the Judicial Magistrate, Lucknow on 16.01.2021.”

Still more, the Bench then states in para 5 that, “After completion of investigation and upon finding sufficient evidence, charge sheet was filed before the trial Court on 06.04.2021 against Respondent No.2/Accused and co-accused Sushil Kumar Yadav under Sections 302 and 34 IPC. Furthermore, investigation against two unknown accused persons is pending.”

As we see, the Bench then discloses in para 6 that, “Respondent No.2/Accused filed Bail Application No. 3340/2021 before the Sessions Judge, Lucknow and the same was rejected vide order dated 28.06.2021 on the ground that he has been named on the basis of the information provided by the deceased himself and that the same has been clarified after the perusal of the documents/forms that the bullet was shot by Respondent No. 2/Accused himself.”

As things stand, the Bench then reveals in para 7 that, “Respondent No. 2/Accused then moved the High Court for grant of regular bail vide Bail No. 11848/2021 wherein Counsel for the Respondent No.2/Accused contended that the co-accused, Sushil Kumar Yadav has been granted bail by the High Court on 18.10.2021 in Bail No. 8501 of 2021 and that the case of the Respondent No. 2 stands on identical footing making him entitled for bail on the ground of parity. The said bail application was allowed vide impugned judgment/order dated 22.10.2021. The operative portion of the judgment reads as under : –

“Keeping in view the nature of the offence, arguments advanced on behalf of the parties, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Anr (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial;

2. The applicant shall cooperate in the trial sincerely without seeking any adjournment;

3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail;

4. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant;

6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law;

7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad;

8. The concerned court/authority/official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.””

Be it noted, the Bench then enunciates in para 26 that, “The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.”

Quite significantly, the Bench then observes in para 30 that, “This Court has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two-Judge Bench of this Court in Dolat Ram And Others Vs. State of Haryana (1995) 1 SCC 349 laid down the grounds for cancellation of bail which are :-

(i) interference or attempt to interfere with the due course of administration of Justice

(ii) evasion or attempt to evade the due course of justice

(iii) abuse of the concession granted to the accused in any manner

(iv) Possibility of accused absconding

(v) Likelihood of/actual misuse of bail

(vi) Likelihood of the accused tampering with the evidence or threatening witnesses.”

Most significantly, the Bench then minces no words to hold in para 31 that, “It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-

a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.

b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.

c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.

d) Where bail has been granted on untenable grounds.

e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.

f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.

g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.”

It cannot be glossed over that the Bench then points out in para 35 that, “Coming to the present case at hand, the Respondent No.2/Accused was arrested on 13.01.2021 subsequent to which, he had applied for regular bail before the Sessions Court which was rejected on the ground that he is named in the FIR on the basis of the information provided by the deceased himself and that the same has been clarified after perusal of the documents/forms that the bullet was shot by the Respondent No. 2/Accused himself. Being aggrieved by the same, Respondent No.2/Accused filed an application under Section 439 Cr.P.C before the High Court seeking regular bail. The High Court vide its impugned order granted bail to the Respondent No.2/Accused without considering the relevant facts and circumstances.”

Most remarkably, the Bench then lays bare in para 36 that, “A bare perusal of the impugned order reveals that the High Court has failed to take into consideration the following:-

· espondent No.2/Accused has been named in the FIR bearing Crime Case No. 16/2021 lodged under Sections 302 and 34 IPC and was the main assailant who had a weapon in his hand.

· The main role of Respondent No.2/Accused was that he opened fire at the deceased due to which the bullet hit his right cheek and made its exit through the other side.

· The deceased succumbed to his injuries on 14.01.2021.

· Respondent No.2/Accused had the intention to murder the deceased as there was previous enmity between him and the deceased with regard to some land which Respondent No.2 threatened to grab.

· On being asked about the incident by the Appellant/Informant’s mother, the deceased replied “Ratipal ka dusra number ka ladka aur ram asre ka putra Sushil Yadav ne pull par gaadi rukwakar goli maar di hai or unke sath 2 ladke aur the”. On re-clarifying, the deceased replied “Ratipal ka dusra number ka ladka matlab Harjeet Yadav”.

· Respondent No.2/accused has clearly been named by the deceased and he was actively involved in opening fire which caused the death of the deceased.

· Respondent No. 2/Accused’s statement was recorded by the then IO under Section 161 Cr.P.C in which he admitted to having committed the offence.

· Respondent No. 2 has a criminal history and several criminal matters have been lodged against him:

(1) Case Crime no. 016/2021 u/s 302/34 IPC

(2) Case Crime no. 020/2021 u/s 25 of the Arms Act

(3) Proceedings of 110G on 05.11.2021

(4) Beat Information (G.D No. 33) dated 18.12.2021

(5) Beat Information (G.D. No. 44) dated 19.12.2021.”

Most forthrightly, the Bench then mandates in para 37 that, “There is certainly no straight jacket formula which exists for courts to assess an application for grant or rejection of bail but the determination of whether a case is fit for the grant of bail involves balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. This Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with basic principles laid down in a catena of judgments by this Court.”

It must be noted that the Bench then in the same vein adds in para 38 that, “However having said that, in the case at hand, it is manifestly incorrect on the part of the High Court to have granted bail to the Respondent No.2/Accused without taking into consideration the relevant facts and circumstances and appropriate evidence which proves that the Respondent No.2/Accused has been charged with a serious offence.”

It is worth noting that the Bench then observes in para 39 that, “Grant of bail to the Respondent No.2/Accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of the Respondent No.2/Accused, nature of crime, material evidences available, involvement of Respondent No.2/Accused in the said crime and recovery of weapon from his possession.”

Furthermore, the Bench then directs in para 40 that, “Having considered the aforesaid facts of the present case in juxtaposition with the judgments referred to above, we are of the opinion that the impugned order passed by the High Court is not liable to be sustained and is hereby set aside. The bail bonds of Respondent No.2/Accused stand cancelled and he is hereby directed to surrender within one week from the date of passing of this order, failing which, the concerned police authorities shall take him into custody.”

For sake of clarity, the Bench then clarifies in para 41 stating that, “It is however clarified that observations made hereinabove are limited to our consideration of the issue of cancellation of bail, as raised by the appellant. They shall not come in the way of final adjudication before the trial Court. At the cost of repetition, it is stated that the trial Court is to consider the matter pending before it, uninfluenced by any of the observations made, strictly on the basis of evidence that shall be brought on record. This order shall also not preclude the Respondent No. 2/Accused from applying afresh for bail at a later stage, if any, new circumstances are brought to light.”

Finally, the Bench then concludes by holding in para 42 that, “As a result, appeal stands allowed.”

In conclusion, the Apex Court has made it indubitably clear that the cancellation of bail cannot be limited to the occurrence of supervening circumstances. It thus merits no reiteration that the bail thus granted by the Allahabad High Court to the murder accused was cancelled by the top court. Very rightly so!

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Policy & Politics

CREATING A LEGAL FRAMEWORK FOR THE INDIAN OFFSHORE WIND SECTOR

Manushi Desai

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The global boom in the offshore wind market is yet to pick up pace in India. India has plans to achieve 5GW Offshore Wind energy by 2022 and 30GW by 2030. Despite such ambitious goals, India has yet to kick-off any offshore wind farms and has been largely in the assessment phase since 2013. While it has achieved 103.05GW of renewable energy so far, it has come mainly through onshore projects, where lack of available land has now become a major constraint. Given India’s commitment at COP26 for achieving 500GW energy from non-fossil fuels by 2030, the importance of the Indian offshore wind sector (“OWS”)— considering it’s 7600 km coastline, cannot be overstated.

The slow progress in the OWS can be attributed to lack of suitable policy and legal framework. The Indian Offshore Wind Policy, issued in 2016, lays out primary steps such as facilitation by the Indian Wind Agency in obtaining permissions; and assured acquisition of power produced from such projects by the government. However, this policy does not address various supervening and foreseeable investor concerns, such as obtaining multiple permissions by the developer— culminating in longer lead times, revocation of incentives due to changing governments, lack of clarity on transferability of operating licences as well as the lack of financial subsidies. Most importantly, the policy is not backed by necessary legal provisions. For example, as per the Policy, a nodal agency would authorise development of offshore wind facilities in the Indian exclusive economic zone (“EEZ”). But, India’s EEZ Act requires that the government specifically make legal provisions for exploitation of wind energy in the EEZ. No such provision currently exists, essentially rendering void any law and nodal agency regulating offshore wind projects in the EEZ.

While introducing legal provisions to govern the OWS by amending existing law would be a quick-fix; I submit that the OWS needs a separate legal framework addressing the full length of issues in constructing, operating and decommissioning offshore projects— that facilitates investment. India’s comprehensive framework developed for oil and mineral exploration in the EEZ can be used as a model. Global forerunners such as the Netherlands, Germany, and Japan have similarly introduced precedent setting laws, catalysing the sector.

Firstly, the framework should address the concerns of investors regarding long lead times in obtaining multiple permissions. This can be solved by extending the powers of the Wind Agency from merely facilitating with other ministries to obtain permissions; to being a ‘one-stop shop’ for issuing all consent requirements, which can reduce construction time and costs of such projects.

In addition, the Wind Agency should be responsible for obtaining nominal permissions— to minimise the number of consents required by the developer. For example, the approval for connecting onshore electric substations to the offshore project, should be obtained by the Wind Agency to help developers. In order to gain such a benefit, an increased coordination between Federal and state governments would be required— as they both concurrently regulate Electricity.

Secondly, the framework should enable the transferability of operating licenses in the event of financial default. Unlike onshore wind installations, offshore installations cannot be easily moved since they are generally fixed to the seabed and taller than the Statue of Liberty! Hence, in case of default by the developer, it is easier to transfer the operating licence instead of moving such assets. This flexibility to transfer licences would reduce the reticence of lenders to finance the OWS, especially in the nascent stage. A stringent government vetting process can be established, in order to address concerns regarding the technical and financial capabilities of the successor, post such transfer.

Thirdly, the framework should ensure protection of investment by turning government incentives into codified law. For example, very recently, a binding national law had to be introduced in India after developers complained that various state governments were terminating assured renewable energy procurement agreements— causing major losses to the developers. This was despite the Federal government’s strict directives to states to adhere to their commitments and ensure uninterrupted energy procurement under power purchase agreements.

In conclusion, implementing the OWS framework will be a challenging task— especially given the current discord between major Indian political parties, which may result in the draft OWS bill not achieving the majority votes to become law; or any such law being repealed by the succeeding government. While I have highlighted the primary challenges to be addressed, several other important bottlenecks remain to be resolved. The government needs to undertake an in-depth study of the best practices in the sector to generate an erudite and well-balanced legal framework which addresses potential risks and reflects the sophistication of the international offshore wind sector, in hopes of presenting it to the Indian parliament. This will help companies such as Tata Power and RWE who are hoping to invest in India’s OWS subject to there being a proper regulatory framework.

The slow progress in the OWS can be attributed to lack of suitable policy and legal framework. The Indian Offshore Wind Policy, issued in 2016, lays out primary steps such as facilitation by the Indian Wind Agency in obtaining permissions; and assured acquisition of power produced from such projects by the government.

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Policy & Politics

THE GUARDIAN OF THE CONSTITUTION

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With the announcement of candidates for the office of the President of India, the battle for Raisina Hill has begun. The BJP has declared Mrs. Draupadi Murmu, a tribal leader and former Governor of Jharkhand, its presidential candidate while the opposition parties have fielded Yashwant Sinha, a former Union Minister and a retired Babu, for the highest constitutional office in the country. Sinha is a well-known critic of the Modi government who was compelled to leave the party a few years ago. It is widely believed that Mr Sinha is bound to lose given the numbers in the electoral college. So, the BJP candidate is most likely to occupy the Rashtrapati Bhavan in the last week of July this year. If elected, Mrs. Murmu will be the second woman and the first tribal President of the country. After the election, her main task will be to defend the Constitution and the laws at a time when several political parties, organizations, and individuals have complained about the misuse of central law-enforcement agencies and institutions and the President will have to face such challenges. Undoubtedly, the Constitution empowers the President to stop the violations of the Constitution.

Under the Indian constitutional scheme, practice, and several judicial pronouncements, the President of India is a constitutional head of the Union Government who is generally bound to act on the aid and advice of the Council of Ministers in the exercise of his/her constitutional powers and functions, vested in him/her by Article 53 of the Constitution, save in a few areas where he/she can act at his discretion. The Council of Ministers headed by the Prime Minister is collectively responsible to the Lok Sabha, the popular chamber of Parliament, and not to the President. The President is also an organ of Parliament. No Bill passed by Parliament can become a law unless the President gives his/her assent to that Bill. The President appoints the Prime Minister from a political party that secures the support of the majority in the Lok Sabha. In the case of a hung Lok Sabha, the President has some discretion in the government’s formation. On the advice of the Prime Minister, the President appoints other ministers and allocates them portfolios on the recommendation of the Prime Minister. If someone is ineligible to become a minister, the President can point that out to the Prime Minister who can drop such a name from the list of ministers. The ministers hold their office during the pleasure of the Prime Minister who can eject any minister at any time and the President is bound to go with the Prime Minister’s choice. The Prime Minister is the head of the Council of Ministers which can remain in office until it ceases to secure the support of the majority in the Lok Sabha. The moment the Lok Sabha expresses its lack of trust in the Council of Ministers, the President can ask the Prime Minister to resign and may invite another political party to form the government. Thus, the Lok Sabha is the lifeline of the elected government. The Council of Ministers is the supreme policy-making body in the Union. It makes all decisions and takes initiatives to bring legislative proposals. There is no need to get the prior approval of the President before making decisions. However, the Prime Minister informs the President as a courtesy to fulfil the mandate of Article 78 of the Constitution. Under this provision, the President can also seek any information about the affairs of the Union from the Prime Minister who is duty-bound to furnish him with such information. The President can also ask the Prime Minister to present the decision of any minister before the Cabinet for its approval. This provision is helpful to ensure the smooth compliance of the doctrine of collective responsibility of the government in a parliamentary democracy.

I am unable to accept the view of some constitutional pundits who opine that the President of India is a rubber stamp or merely a figurehead who acts like a robot. The President of India is not a rubber stamp at all. The Constitution allows him/her to play a significant role and he/she can certainly contribute a lot to the constitutional governance in the country. Under Article 74 of the Constitution, the President can ask the Council of Ministers to reconsider its advice once but thereafter, if the Council of Ministers reiterates its advice, the President is bound to accept the same and act accordingly. The constitutional and political pundits call it President’s Referral power. This power is exercised by the President at his discretion. This option was given to the President by the 44th Constitutional Amendment, 1978. During his tenure, then-President K. R. Narayanan exercised this option two times and saved two State Governments from Article 356 of the Constitution. Also, the President can persuade the Prime Minister to run the administration according to the constitutional provisions as the President is duty-bound to preserve, protect, and defend the Constitution and the laws as per the mandate of his/her oath of office under Article 60 of the Constitution. Article 61 of the Constitution provides a sanction for the fulfillment of the oath because, under Article 61, the President can be impeached “for violation of the Constitution”. Thus, the President cannot accept the illegal and unconstitutional advice of the Council of Ministers blindly. The President needs to apply his/her mind before approving the Cabinet’s decisions or proposals even if Article 361 of the Constitution provides immunity to the President against judicial proceedings. Article 361 cannot stop Parliament from impeaching the President.

Admittedly, the President of India needs to exercise his/her constitutional powers and functions on the advice of the Council of Ministers which remains in existence even after the dissolution of the Lok Sabha. But the President has some personal responsibility also. He/she cannot shift all responsibilities to the Council of Ministers. Renowned constitutional jurist H M Seervai rightly states that the Council of Ministers cannot compel the President to act against the provisions of the Constitution. In his famous book on the Constitution of India, Mr. Seervai gives some examples to prove this thesis. As Article 85 of the Constitution provides that: “The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session”. If the Prime Minister advises the President to call the next session after a year, by which time the government hoped to overcome its political crisis, it is the duty of the President to disregard such advice and to call for a session of the two Houses of Parliament as required by Article 85(1) of the Constitution. For he if acted otherwise, he would be violating a mandatory provision of the Constitution, for which he is liable to be impeached by Parliament. In another example, Mr. Seervai states that the President cannot ignore the opinion of the Election Commission while deciding any matter relating to the disqualification of a Member of Parliament under Article 103 of the Constitution and cannot go with the Cabinet’s advice in such matters. Thus, the President cannot violate the mandatory provisions of the Constitution while exercising his/her powers on the advice of the elected government headed by the Prime Minister.

After the three Judges’ appointment cases, the President is bound to appoint the judges of the Supreme Court and High Courts on the recommendation of the Supreme Court Collegium headed by the Chief Justice of India. If the Prime Minister advises him/her to override the collegium’s recommendation, the President can disregard the Prime Minister’s advice and has to act according to the collegium’s recommendation. This arrangement has been made by the judiciary to protect its independence from the executive. However, in many cases, the judiciary has also misused this freedom and appointed people who should never have been appointed judges. Several constitutional pundits have said on different occasions that the collegium system has promoted nepotism, elitism, and casteism in the judiciary. Unfortunately, a few privileged families of judges and lawyers, some castes, and communities have dominated the higher judiciary badly. This is not good for the health of the legal profession. The time has come when the government should take steps to examine the functioning of the collegium system and enact a law to scrap this judge-made body which has no constitutional foundation.

Given the above discussion, it is submitted that the President of India has a specific role in our constitutional system and he/she must play that role to protect the Constitution and the laws effectively remaining within the constitutional boundaries. The President is not a master of the elected government but he/she is certainly a guardian of the Constitution, a friend of the Prime Minister, and above all, a vigilant citizen who is duty-bound to protect the collective interests of the nation. He/she can guide the government and can persuade the government to act according to the provisions of the Constitution. The President may use his/her activism as and when needed to save democracy, rule of law, human rights, and dignity. The people have lots of expectations from the new tenant of the Rashtrapati Bhavan which is a very powerful building in the land of Professor Upendra Baxi, a great constitutional jurist and defender of human rights and dignity.(For more information about the constitutional powers, functions, and position of the President of India, please read Lokendra Malik, The Power of Raisina Hill, LexisNexis 2015) Let me conclude with these insightful words of Justice Krishna Iyer observed in the Samsher Singh’s case: “The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encouraged. Indeed, Article 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors i.e., the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role”.

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