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Prosecution under UP Gangsters Act permissible even in case of a single FIR for anti-social activities: Supreme Court

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In a significant development, we saw how just as recently as on April 26, 2022, the Apex Court in a brief, brilliant, bold and balanced judgment titled Shraddha Gupta vs The State of Uttar Pradesh and Others in Criminal Appeal Nos. 569-570 of 2022 observed that there can be prosecution against a person under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act. We saw how in this case, the Allahabad High Court had refused to quash the proceedings against the accused under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The crux of this judgment can be stated thus as noted in judgment itself that, “Even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’ – There can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person. (Para 9-10).”

To start with, this extremely commendable, cogent, composed, courageous and creditworthy judgment authored by Justice MR Shah for a Bench of Apex Court comprising of himself and Justice BV Nagarathna sets the ball rolling by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned order dated 27.09.2019 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 21964 of 2019 and the subsequent order dated 10.11.2020 passed in Criminal Miscellaneous Review Application No. 2/2019, the original accused, Shraddha Gupta, against whom an FIR has been filed under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the ‘Gangsters Act, 1986’), has filed the present appeals.”

To put things in perspective, the Bench then envisages in para 2 while dwelling on facts that, “The facts leading to the present appeals in nutshell are as under:

That a written report was made by respondent no.4 herein (original informant) on 24.05.2016 to the effect that her sister and her family members had previous enmity with the accused persons, namely, (1) Shravan Kumar (husband of the appellant herein), (2) Guddu @ Sudhanshu, (3) Munna @ Brajendranth Sharma, (4) Kamal Sharma and (5) Bhure. That on 23.5.2016, her sister Kumari Sadhna Sharma, Incharge, DGC(Crl.) in the Court of the District Judge, Badaun, had gone to the Court on her scooty to pursue the cases on behalf of the Government. Bhure and others had a hearing date in the Court of District Judge, Badaun for appearance. At about 5:30 p.m. her sister was returning from Badaun to Ujhani, sitting on the rear seat of the scooty being driven by her servant Bihari. When the scooty reached near Balaji temple, they saw a car parked near the temple in which all the abovenamed accused were present. The car followed the scooty of her sister Sadhna and when she reached near Jiorlia village, the car of the accused rammed into her sister’s scooty with the result both Sadhna and Behari fell on the road. Then the accused drove their car towards her sister, stopped it near Behari and shouted, ‘kill this fellow also otherwise he may also give evidence’. The accused, however, ran away on the arrival of the people. The incident was witnessed by the passer-by and with their help Behari took her sister to Badaun hospital in a vehicle. Her sister Sadhna died in the hospital. The complainant further stated that she had come to the hospital at 11:00 on getting the information and lost her consciousness on seeing the dead body of her sister. The autopsy of the deceased was conducted in the night. When she regained her consciousness, Behari told her the entire incident. After making arrangements for the last rites of her sister, she came to the police station to lodge the report. The complainant alleged that she apprehends the association of the former BJP MLA Yogender Sagar in the entire conspiracy. On the basis of this report, a case under Section 147 , 304, 504, 323, 506, 120-B IPC was registered against the above named six accused persons at P.S. Ujhani, District Badaun, vide Case Crime No. 337/2016 dated 24.05.2016.

2.1 That subsequently on 27.05.2017, a case under Sections 2/3 of the Gangsters Act, 1986 was registered against eight accused persons vide Case Crime No. 268/2017. The charge sheet was filed against the said eight accused persons on 26.5.2018 and the cognizance of the same was taken by the learned Special Judge under the Gangsters Act, Badaun on 2.7.2018.

2.2 It appears that thereafter on further investigation and on the basis of the call recordings between the co-accused, handed over to the Investigating Officer by the complainant, the names of the appellant – Shraddha Gupta, her husband Sharvan Gupta and Kamlesh Sharma, came to light and accordingly they were arrayed as accused in Case Crime No. 337/2016.

2.3 That in the course of investigation, it also revealed that the appellant – Shraddha Gupta, her husband – Sharvan Gupta and Kamlesh Sharma were also involved in the offence pertaining to the conspiracy of murder of deceased Sadhna Sharma. Therefore, supplementary charge sheet was also filed against the aforesaid three accused persons, namely, Shraddha Gupta, Sharvan Gupta and Kamlesh Sharma. That subsequently, it was brought to the notice of the Senior Superintendent of Police, Badaun, that the case under the Gangsters Act, 1986 has been registered only against eight accused persons and the charge sheet has been filed against eleven accused persons in Case Crime No. 337/2016.

2.4 Thereafter, a gang chart was prepared against the appellant and other two accused, which was sent to the Senior Superintendent of Police, District Badaun on 19.03.2019. That thereafter the Joint Director (Prosecution), Badaun granted approval on 1.4.2019 to register a case against the aforesaid three persons under Sections 2/3 of the Gangsters Act, 1986. SSP, Badaun, vide communication dated 2.4.2019 communicated to the Investigating Officer and accordingly FIR dated 27.05.2019 in Case Crime No. 268/2017 under Sections 2/3 of the Gangsters Act has been lodged/registered against the appellant and other two co-accused. Thus, the FIR for the offences under the Gangsters Act has been registered against eleven accused in all (eight accused charged earlier and the three accused including the appellant herein charge sheeted subsequently).

2.5 That the appellant herein filed the present Criminal Miscellaneous Writ Petition No. 21964/2019 before the High Court under Section 482 of the Criminal Procedure Code and prayed for the following reliefs:

i) Issue a writ, order or direction in the nature of certiorari to quash the orders dated 7.6.2019 and 2.4.2019 passed by the respondent no.3;

ii) Issue a writ, order or direction in the nature of certiorari to quash the impugned FIR dated 27.5.2017 as Case Crime No. 268/2017 under Section 2/3 Gangsters Act, P.S. Ujhani, Dist. Badaun, only to the extent of the petitioner;

iii) Issue a writ, order or direction in the nature of mandamus commanding respondents no. 2 and 3 not to arrest the petitioner in case Crime No. 268/2017 under Sections 2/3 Gangsters Act, P.S. Ujhani, District Badaun.

2.6 It was the case on behalf of the appellant that she has been falsely implicated in the case; she was not named in the FIR; in the FIR, no role has been assigned to her; her name has surfaced in further investigation under Section 173(8) Cr.P.C.; the Senior Superintendent of Police, Badaun maliciously submitted the supplementary gang chart against her approved by the District Magistrate, Badaun; that she is neither a gang leader nor a member of the gang being a household lady. It was also the case on behalf of the appellant-accused that solely on the basis of the single FIR/charge sheet, she cannot be charged for the offences under the provisions of the Gangsters Act.

2.7 That by the impugned order, the High Court has dismissed the said writ petition and has refused to quash the criminal proceedings under Sections 2/3 of the Gangsters Act. A review application was also filed which has also been dismissed.

2.8 Feeling aggrieved and dissatisfied with the impugned orders passed by the High Court dismissing the writ petition under Section 482 Cr.P.C. and dismissing the review application, the accused Shraddha Gupta has preferred the present appeals.”

Simply put, the Bench then enunciates in para 6 that, “The short question which is posed for the consideration of this Court is, whether, a person against whom a single FIR/charge sheet is filed for any of the anti-social activities mentioned in section 2(b) of the Gangsters Act, 1986 can be prosecuted under the Gangsters Act. In other words, whether a single crime committed by a ‘Gangster’ is sufficient to apply the Gangsters Act on such members of a ‘Gang’.”

It deserves mentioning that the Bench then observes in para 7 that, “While considering the aforesaid issues/questions, the relevant provisions of the Gangsters Act, 1986 are required to be referred to. The object and purpose of enactment of the Gangsters Act, 1986 is to make special provisions for the prevention of, for coping with, gangsters and anti-social activities and for matters connected therewith or incidental thereto. Section 2(b) defines ‘Gang’ and Section 2(c) defines ‘Gangster’. Sections 2(b) and 2(c) read as under:

“2(b) “Gang” means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities (Act no. 2 of 1974), namely—

(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code (Act no. 45 of 1860), or

(ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 ( U.P. Act no. 4 of 1910) or the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other law for the time being in force, or

(iii) occupying or talking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or (Act no. 61 of 1985)

(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or

(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Art, 1956, or

(vi) offences punishable under section 3 of the Public Gambling Act, 1867 ( Act no. 104 of 1956), or

(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking for any lease or right or supply of goods or work to be done, or

(viii) preventing or disturbing the smooth running by any person of his lawful business profession, trade or employment or any other lawful activity connected therewith, or

(ix) offences punishable under section 171-E of the Indian Penal Code, or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or

(x) inciting others to resort to violence to disturb communal harmony, or

(xi) creating panic, alarm or terror in public, or

(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or

(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or

(xiv) kidnapping or abducting any person with intent to extort ransom, or

(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;

(c) “gangster” means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities.”

7.1 Section 3 of the Gangsters Act, 1986 provides for punishment, which reads as under:

“3. (1) A gangster shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:

Provided that a gangster who commits an offence against the person of a public servant of the person of a member of the family of a public servant shall be punished Kith imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees,

(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the Commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine.”

7.2 Section 5 of the Gangsters Act provides for constitution of Special Courts for the speedy trial of the offences under the Act. Section 6 provides that a Special Court may, if it considers it expedient or desirable so to do, hold its sitting for any of its proceedings at any place, other than the ordinary place of its sitting or seat. Section 8 of the Act provides that when trying any offence punishable under the Gangsters Act, a Special Court may also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial. Under Section 9 of the Gangsters Act, the State Government shall appoint a person to be the Public Prosecutor for every Special Court. Section 10 provides that a Special Court may take cognizance of any offence triable by it, without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. Section 12 provides that the trial under the Gangsters Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other court ( not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance. Section 13 of the Gangsters Act provides that where, after taking cognizance of any offence, a Special Court is opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such an offence, transfer the case for trial of such offence to any other court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it has taken cognizance of the offence.”

It can be thus surmised from what is stated above as noted in para 8 that, “From the aforesaid, it can be seen that all provisions are to ensure that the offences under the Gangsters Act should be given preference and should be tried expeditiously and that too, by the Special Courts, to achieve the object and purpose of the enactment of the Gangsters Act.”

Most significantly, the Bench then minces no words to unequivocally state in para 9 that, “Now so far as the main submission on behalf of the accused that for a single offence/FIR/charge sheet with respect to any of the antisocial activities, such an accused cannot be prosecuted under the Gangsters Act, 1986 is concerned, on a fair reading of the definitions of ‘Gang’ and ‘Gangster’ under the Gangsters Act, 1986, it can be seen that a ‘Gang’ is a group of one or more persons who commit/s the crimes mentioned in the definition clause for the motive of earning undue advantage, whether pecuniary, material or otherwise. Even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.

A group of persons may act collectively or anyone of the members of the group may also act singly, with the object of disturbing public order indulging in anti-social activities mentioned in Section 2(b) of the Gangsters Act, who can be termed as ‘Gangster’. A member of a ‘Gang’ acting either singly or collectively may be termed as a member of the ‘Gang’ and comes within the definition of ‘Gang’, provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.”

No less significant is what is then stated in para 10 that, “On a fair reading of the definitions of ‘Gang’ contained in Section 2(b) and ‘Gangster’ contained in Section 2(c) of the Gangsters Act, a ‘Gangster’ means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act. There is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Therefore, considering the provisions under the Gangsters Act, 1986 as they are, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ‘Gang’ and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person and he/she can be termed as ‘Gangster’ within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act. Therefore, so far as the Gangsters Act, 1986 is concerned, there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person.”

As we see, the Bench then points out in para 11 that, “In the present case, it is alleged that the main accused P.C. Sharma was a gang leader and who was the mastermind and he hatched the criminal conspiracy along with other co-accused including the appellant herein to commit the murder of the deceased Sadhna Sharma for a pecuniary benefit as there was a property dispute going on since long between the family members. It is also to be noted that the other co-accused were already charge sheeted/prosecuted for the offence under the Gangsters Act and therefore the appellant and the other two co-accused being members of the ‘Gang’ were also required to be prosecuted for the offences under the Gangsters Act also like other co-accused. Therefore, in the facts and circumstances of the case, it cannot be said that no prosecution could have been initiated against the appellant-accused for the offences under Sections 2/3 of the Gangsters Act, 1986.”

Finally, the Bench then concludes by holding in para 12 that, “In view of the above discussion and for the reasons stated above, the High Court has rightly refused to quash the criminal proceedings against the appellant-accused under Sections 2/3 of the Gangsters Act, 1986, in exercise of powers under Section 482 Cr.P.C. We are in complete agreement with the view taken by the High Court. Under the circumstances, the present appeals fail and the same deserve to be dismissed and are accordingly dismissed.”

In conclusion, the Apex Court has made it indubitably clear that the prosecution under the UP Gangsters Act is permissible even in case of single FIR/charge sheet for anti-social activities. It thus merits no reiteration that the Apex Court has very rightly refused to quash the criminal proceedings against the accused under the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986. There can be just no denying or disputing it!

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Policy & Politics

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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Policy & Politics

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

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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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But for gold, India would have become Sri Lanka

India had also faced a Sri Lanka-like crisis three decades back, but the leadership saved the country.

Vijay Darda

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Introduction

During the rule of demon king Ravana, his palace in Sri Lanka was made of gold. But today there is not an ounce of gold in Sri Lanka’s treasury to save it from bankruptcy! But quite amazingly, when India was on the verge of bankruptcy some three decades back, we saved ourselves by selling 20 tonnes of gold, and subsequent rapid economic recovery helped bolster the economy. Very few people of the present generation of the country would be aware of this story. Before examining the situation in Sri Lanka and its causes, it is pertinent to briefly learn about the then situation!

The Gulf War broke out in 1990 and the price of petroleum products skyrocketed in the international market. India’s petroleum imports suddenly increased from $2 billion to $5.7 billion in 1990-91. During this period, political instability was at its peak. In 1989, Rajiv Gandhi kept the Congress away from forming a coalition government.

Vishwanath Pratap Singh became the PM but he too had to resign in 1990. Rajiv Gandhi was assassinated in May 1991. The situation turned so bad that the NRIs started withdrawing their money. India’s foreign exchange reserves went down to less than one billion dollars. There was so little money that only essential imports could be paid for and that too only for 20 days. There was no money to do business with the world! The foreign debt on India had shot up to $72 billion. There were only two countries in the world above India in terms of debt – Brazil and Mexico.

India would have gone bankrupt had it not paid the debt. Chandrashekhar was the Prime Minister at that time. He got India out of a balance of payment crisis by selling 20 tonnes of gold, regardless of domestic politics and criticism. Meanwhile, the IMF gave a loan of $1.27 billion, but improving the situation was a big challenge. However, in June 1991 P V Narasimha Rao became the Prime Minister and he brought about a lot of changes in India’s economy through the then finance minister Manmohan Singh. Imports were curtailed, government spending was drastically cut, and the rupee was devalued by up to 20 per cent. Banks increased interest rates. This is how India survived!

Had India’s political leadership and administrative machinery not shown alertness, our story would not have been any different from Sri Lanka. The political leadership is largely to blame for the condition of Sri Lanka today. Until last month, the all-powerful Rajapaksa family dominated the island nation. The unbridled nepotism ensured the presidency for Gotabaya Rajapaksa. Mahinda Rajapaksa was the Prime Minister, Chamal Rajapaksa was the minister for irrigation, Basil Rajapaksa was the finance minister and Namal Rajapaksa was the sports minister. Thus, 75 per cent of the budget of Sri Lanka was grabbed by the Rajapaksa family. The Rajapaksa family ran Sri Lanka as their own private company. The children of the Rajapaksa family were roaming around in the world’s most expensive and customised luxurious cars. They behaved as if the country’s money was their own money. The Rajapaksa family ran the country according to their whims and fancy. It is not known why the use of fertilizers in farming was banned, leading to a sharp decline in yields. The export of tea and rice, which were prime sources of foreign exchange for Sri Lanka, declined drastically.

Tourism accounts for about 20 per cent of Sri Lanka’s revenue. Sri Lanka’s finances were already in the doldrums in the aftermath of the years of the civil war resulting from the LTTE insurgency. The outbreak of the coronavirus pandemic further worsened the situation. In the meantime, Sri Lanka went on seeking loans left, right and centre. When China dangled the carrot of Hambantota Port, the experts had cautioned that Sri Lanka does not need it but eventually Sri Lanka walked into China’s debt trap. Now the rumour mills are churning out the stories of how the Chinese financiers benefitted the Rajapaksa family for this. I don’t know how much substance these stories hold, but one thing is clear that Sri Lanka unnecessarily took a loan of billions of dollars from China. What is the condition today? China has got Hambantota Port on a lease for 99 years. Actually, the rulers of countries like Sri Lanka and Pakistan run the country like a private limited company. They use the public money to feather their own nests but we are proud that neither any party nor any prime minister has ever done this in our country. For us, our country is supreme.

The burden of foreign debt on Sri Lanka has now exceeded $50 billion. The Sri Lankan government has clearly admitted that it is not in a position to pay even the interest on the loans. It simply means that Sri Lanka has gone bankrupt. The value of one dollar has crossed 360 Sri Lankan rupees. Traditionally, it is believed that any country should have at least 7 months’ worth of foreign exchange reserves to import, but Sri Lanka’s foreign exchange reserves are not enough to pay for imports even for a few days. The situation is so bad that there is a complete power outage throughout the island nation. Petrol and gas are being supplied under the protection of the army. Essential goods are missing from the market and the poor have nothing to eat. There is no money for paper and hence newspapers have stopped publishing. Sri Lanka is burning in the fire of discontent. Meanwhile, the post of prime minister has been taken over by Ranil Wickremesinghe. He is considered very close to India. India has helped Sri Lanka a lot even during Rajapaksa’s reign, but how much can any other country help? The health of Sri Lanka will have to be restored by its own political leadership. Let us all pray for Sri Lanka!

The woeful plight of Sri Lanka is an eye-opener for the world that it is very risky to fall into the debt trap. An old saying in our Indian families says, stretch your legs no bigger than the coverlet. And there is another saying that there must be some money in hand for rainy days. This is the proverbial lesson for every family and also for the political setup and government! No one can say for sure when and where any calamity will strike!

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

The crisis which the island nation of Sri Lanka is facing can be described as an extremely dreadful time for any country. Three decades back, India was on the verge of facing a similar situation, but our leaders took a bold and visionary decision to save the country by selling gold. It is the Sri Lankan leadership which has pushed the people on the brink of starvation.

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Policy & Politics

Domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there: SC

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While upholding the right of a woman to reside in a ‘shared household’ even if she has not actually lived there, the Supreme Court as recently as on May 12, 2022 in a learned, laudable, landmark and latest judgment titled Prabha Tyagi vs Kamlesh Devi in Criminal Appeal No. 511 of 2022 in exercise of its criminal appellate jurisdiction held that a victim of domestic violence can enforce her right to reside in a shared household, irrespective of whether she actually lived in the shared household. The Bench of Apex Court comprising of Justice MR Shah and Justice BV Nagarathna held in no uncertain terms that, “Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the DV Act. Very rightly so!

To start with, this learned judgment authored by Justice BV Nagarathna for a Bench of Apex Court comprising of Justice MR Shah and herself sets the ball rolling by first and foremost putting forth in para 1 that, “The aggrieved person, being the appellant herein, who had filed Miscellaneous Case No. 78 of 2007 on the file of the Court of Special Judicial Magistrate- I, Dehradun, has assailed judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand at Nainital, in Criminal Revision No. 186 of 2014, by which the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011 setting aside the order passed by the Special Judicial Magistrate-I, was sustained.”

While dealing with the factual background, the Bench then lays bare in para 3 that, “According to the aggrieved person, her marriage with Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on 18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and rituals and in connection with the marriage, the family members of the aggrieved person had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. For the period immediately following the wedding, the aggrieved person was residing at the ancestral home of the respondents along with her mother-in-law-respondent no.1, two brothers-in-law, wife of her husband’s elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husband and the respondents in village Jhabreda. That Kuldeep Tyagi, husband of the aggrieved person died on 15th July, 2005 in a car accident and after the Terhanvi ceremony of her husband, the aggrieved person was constrained to reside initially at Delhi, at her father’s house. That immediately prior to the death of her husband, the aggrieved person had conceived a child.”

While continuing in the same vein, the Bench then states in para 4 that, “That on 30th March, 2006 the aggrieved person gave birth to a daughter and owing to the misbehavior and torture meted out to her by her matrimonial family after her husband’s death, she moved to Dehradun, Uttarakhand with her daughter, where she began working as a teacher to support herself and her child. That the Stridhana given to her at the time of her wedding was never allowed to be enjoyed by her and even following her exit from her matrimonial home, the Stridhana was being used by her in-laws, respondent nos. 1 to 6. That the aggrieved person had sent a legal notice dated 22nd November, 2006, requesting them to return the articles of Stridhana, however, there was no response to the same.”

Furthermore, the Bench then discloses in para 5 that, “That the father of the aggrieved person had gifted her a Maruti (Alto) car, at the time of her wedding and the same was registered in the name of her deceased husband. Owing to the accident that her husband had met with, resulting in his death, the said car had also been damaged. That the aggrieved person’s mother-in-law had submitted an application before the insurance company, National Insurance Company which was processing the claim for damage caused to the car, stating therein that she was the mother of the deceased and was the only legal heir of the deceased and therefore any compensation may be made in her favour.”

Truth be told, the Bench then mentions in para 6 that, “That there exists a land in village Jhabreda to which the deceased husband of the aggrieved person had right and title. That respondent no. 1- mother-in-law, on being instigated by the other respondents objected to the recording of the aggrieved persons’ name in the revenue records of the said property. Respondent no. 1 objected by stating that the child borne by aggrieved person was not Kuldeep Tyagi’s daughter. Owing to such objection, the Court of Tehsildar passed an order of status quo with respect to the said property.”

It cannot be lost sight of that the Bench then observes in para 7 that, “That the respondents, on several occasions threatened the aggrieved person that she would face dire consequences if she ever attempted to claim any right over her husband’s property. That the respondents, having no sympathy towards the aggrieved person who had, while pregnant, lost her husband in a fatal accident, tortured her mentally by denying that her child was the daughter of Kuldeep Tyagi.”

As it turned out, the Bench then points out in para 8 that, “With the aforesaid averments, the aggrieved person approached the Court of the Special Judicial Magistrate under Section 12 and sought protection orders, residence orders and compensation orders to be passed under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers were also made for monetary reliefs under Section 22 of the D.V. Act.”

Briefly stated, the Bench then states in para 14 that, “Aggrieved by the judgment of the First Appellate Court, the aggrieved person preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained. The aggrieved appellant has approached this Court challenging the judgments of the First Appellate Court and the High Court.”

Notably, the Bench then observes in para 51 that, “In the instant case, when the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. Hence, in our view, the judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not lay down the correct law and are hereby overruled while we affirm all other judgments referred to supra which are in consonance with the line of interpretation made above.”

Most significantly, the Bench then while clearing the air on the questions raised holds in para 52 that, “In view of the above discussion, the three questions raised in this appeal are answered as under:

i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”

It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?”

It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”

It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.”

Most remarkably, the Bench then directs in para 53 that, “Consequently, the judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand in Criminal Revision No. 186 of 2014 as well as the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are set aside and the order passed by the Special Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007, Dehradun is affirmed.”

On a concluding note, the Bench then remarks in the final para 56 that, “Before parting with this case, we express our appreciation to the valuable services rendered by Shri Gaurav Agarwal, learned amicus curiae, who has painstakingly researched all the relevant judgments on the questions raised in this case arising from various High Courts and has made his submission schematically with particular reference to the facts of the case and all relevant provisions of the D.V. Act.”

In sum, the Apex Court has made the whole picture crystal clear in this notable judgment by the Apex Court. So it is now crystal clear that a domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there. No denying!

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