“All men feel hungry for sex. Prostitutes prevent women from good families from getting raped. If prostitutes were not there, women would not be able to walk on the road. Unmarried young men would attack any woman on the road. In fact in my opinion, prostitutes are social workers, next only to mothers and should be treated with respect.” —Khairati Ram Bhola
After years of being ostracised, humiliated, discriminated and exploited sex workers finally get the legal protection, something they have been fighting for centuries. Recently, in a socially and historically pathbreaking order the Supreme Court of India by invoking its power under Article 142 has recognised sex work as ‘profession’ and observed that its practitioners are entitled to have equal protection under law and dignity under Article 21 of the Constitution.
What Court Ruled?
Court issued the detailed directions ranged from prohibiting police actions against consenting sex workers, police and medico-legal protection being victim of sexual assault, holding media accountable for voyeurism (S.354C) on revealing identity of sex workers to directing UIDAI to issue Aadhar Card for them without insisting on address proof. This directions/guideline would remain in effective till government comes up with legislation.
Towards a better future: Treating all with Dignity
Prostitution has long been considered as some kind of dark mark on the society. Till date, there is a lot of unawareness and disinformation propagated around the area, the major one being that prostitution is illegal in India. However, pimping, owning and running a brothel is illegal.
In India, the legal position pertaining to prostitution and sex workers is entangled in convoluted conundrum. A progressive approach has been adopted by court along with clearing the air pertaining to position of sex work as profession in India. Prior to that, Apex Court in 2011 had constituted a special panel headed by Mr. Pradeep Ghosh, for making recommendation on three core issues and one of them was “the condition conducive for sex workers to live with dignity”. While issuing guidelines, court considered the recommendations made by the panel and commented on laxity of legislature to act upon it despite the fact that recommendations were made in 2016. Thus, court utilised its power under Article 142 and directed all State Governments/UTs to strictly comply with recommendations made by panel.
The Immoral Traffic (Prevention) Act, 1956 is lex Specilis that partially dealt with position of prostitution in India but from lens of human trafficking and not from victim centric aspect for practitioners of sex workers. Also, the provisions of the Penal Code (i.e., S.366A, S.370A S.372, S.373) criminalises some activities related to prostitution but prostitution is not illegal in broad sense.
The existing view of society discriminates sex worker and ostracised them from society, thus contravening fundamental human rights, gender justice, equality, and dignity of women. It clearly violates Articles 14, 15 and 21 of Indian Constitution and is against international human rights law. In National Legal Services Authority v. Union of India, the Supreme Court held that right to live with dignity under Article 21 enshrined the right to not be perceived as unequal or inferior to other individuals in society. In Joseph Shine v. UOI, the Supreme Court observed that a law that treats women differently based on gender stereotypes causes a direct affront to women’s dignity, violating Articles 14 and 21. Also, any law that reinforces discriminatory stereotypes against a class of person is arbitrary and violative of Articles 14 and 15 of the Indian Constitution. Recently, Bombay High Court observed that being adults everyone has right to choose their own vocation and held that prostitution is not criminal offence.
Additionally, India is a party to the CEDAW. The discriminatory and oppressive treatment to sex worker violates India’s obligations under Art.5(a) and 16(1)(a) of the CEDAW. Further, India is signatory to numerous human rights treaties. But, the treatment received by sex workers from the society included ‘abuse and brutality’ by police personnel’s during raid is clear violation of human rights vis-à-vis its commitment under such treaties.
Should we celebrate this decision of Apex Court: Let’s sum it up
Yes, we should, because it is a reform towards women empowerment, to protect human rights, to safeguard the right to equality and eradicate orthodoxia prejudiced mindset. However, while the reform on paper is an important step, it is equally important to ensure that it will be implemented in practice. Recognising sex work as work enhances the legal protection and ability of sex workers to exercise other fundamental rights, including access to justice and health care. Legal acknowledgement of sex workers and their profession enhances their safety, respect, and equality. This is an essential step towards de-stigmatizing sex work.
The existing view of society discriminates sex worker and ostracised them from society, thus contravening fundamental human rights, gender justice, equality, and dignity of women. It clearly violates Articles 14, 15 and 21 of Indian Constitution and is against international human rights law. In National Legal Services Authority v. Union of India, the Supreme Court held that right to live with dignity under Article 21 .
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THE EFFECT OF THE SOCIOLOGICAL SCHOOL ON THE CURRENT LEGAL SYSTEM
Law has consistently been taken a gander at as one of the significant instruments that could achieve social change. Numerous academicians have upheld the view that law appreciates and utilizes binding together capacity to contribute towards better social union, as a device for achieving homogeneity in the heterogeneous populace having socio-social assorted varieties. Despite the fact that there are a few gadgets to achieve a change and renewal in the public arena, however reconstruction through law is maybe one of the best and most secure strategies to accomplish this end. Indian society has transformed over the period of time from a society governed by Smrithi, Sruti, Dharma and other customary law, to western conceptions of law and authority during the colonial period. Further with the rights-based Constitution and dynamic law-production which incorporates the codification of strict laws and governmental policy regarding minorities in society during the post-pioneer period, the Indian culture has gone through change. The commitment of sociological statute to the social change in India, could be all around surveyed as perceived by seeing the law as a device of social designing. Significance allocated to sociological school of law, is because of the way that by glancing through the focal point of this specific way of thinking, the reaction of human conduct in a general public to law and how law has made and shaped itself to suit the manner in which the general public reacts to it could be perceived .There additionally could be cases we could watch, by which we could see even the general public now and again requests for laws. this interaction of law and society contributes and prompts advancement of one another. Looking from the sociological school of statute during the hour of pilgrim organization in India, social change had clearly occurred, yet the circumstance that existed in which the laws were forced by the provincial organization, gives an impression of a circumstance for the positivist law to exist. English organization can’t be said to have seen law as social building device for the Indian culture. Further, to a great extent there was no reference to the need of the individuals in the law-production during pilgrim times. The provincial arrangement of law-production can’t be outlined into agreement or strife model, as the individuals’ investment, keen or need was not of much worry for the law-production around then. Be that as it may, precluding all the law made during pilgrim organization out of ambit of sociological statute is likewise impractical. English organization was more keen on shaping laws that will help in framing a dish India level system for the administration of the nation. In any case, because of the general assessment likewise certain laws were established matters such as sati and child marriage abolishment legislations. This indicates that the need of people, reflected in the public opinion also had an impact on the legislations even during the colonial period . Post-Colonial Period Post-frontier period saw critical measure of law-production that affected quite a bit of social change in India. This began with the confining of Indian Constitution, a report which could be alluded to as socio-political and right-situated in approach. The Constitution has really planted the seeds of a moderate social upheaval that had set off numerous dynamic and purposive law-production. The Constitution by joining arrangements that gets governmental policy regarding minorities in society, advances multiculturalism and proportions of a commitment upon the States prompting a government assistance instrument is an exemplification of a law made inside the system of sociological statute. Despite the fact that the Constituent Assembly was not a chosen body, the perspectives and issues that were examined and further got reflected in the Constitution, had unquestionably the goals of the individuals and thought about the different parts of enthusiasm of the Indian culture. Further, we could infer that the Constitution of India that purposive law-production for driving India into a moderate social insurgency, and over the timeframe Constitution has formed its shape with the changing need of the country.
PIONEERS OF THE SOCIOLOGICAL SCHOOL
There are various pioneers of the this school namely Auguste Comte, Herbet Spencer, Dugit , Eugen Ehrlich , Ihering , Haurio and one the important pioneer is Roscue Pound . It is to be stated that howsoever divergent the views of various sociological jurists may appear, they have one common point that the law must be studied in relation to society This view has a great impact on modern legal thought.
THEORIES OF VARIOUS PIONEERS OF SOCIOLOGICAL SCHOOL AND THEIR IMPACT/CONTRIBUTION ON THE PRESENT LEGAL SYSTEM
1 . Duguit
Durkheim’s main point, on which Duguit built upon, was that he made a distinction between two kinds of needs of in society. Firstly, there are common needs of individuals which are satisfied by mutual assistance and secondly , there are diverse needs of individuals which are satisfied by exchange of services. Therefore , the division of labour is the most important fact of social cohesion. He named it ‘social solidarity’ . With development of free individual activities the ‘social solidarity’ develops . The ‘social solidarity’ is a fact and it is necessary for social life. His theory impacted in way which causes minimisation of state functions . The social solidarity is the touchstone of judging the activities of individuals and all organisations . State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals to govern . They too are under a duty to ensure ‘social solidarity’ . Therefore , the state stands in no special position of privilege and it can be justified only so long as it fulfils its duty . Duguit has a no faith in an all powerful illimitable authority ‘sovereign’ . He strongly pleads for the check on the state power . Thus in the present legal system three organs keep the check on eachother as there is no bias decision and nothing goes wrong and the work goes on smoothly thus a system of check and balances is established .According to him legislator does not create law but merely gives expression to judicial norm formed by the consciousness of the social group .
According to him, the development of law like its origin is neither spontaneous nor peaceful. “It is the result of constant struggle or conflict with a view to attain peace and order.” Ihering says, “Law is the guarantee of the conditions of life of society, assured by the state’s power of constraint. LAW IS TO SERVE SOCIAL PURPOSE- He takes law as a mean to an end. The end of the law is to serve purpose. This purpose is not individual but social purpose. When individual purpose comes in conflict with social purpose, the duty of the state is to protect and further social purposes and to suppress those individual purposes which clash with it. This end may be served either by regard or by coercion and it is the latter which is used by the state. Therefore, “law is coercion organised in a set form by the state’. As to its impact on the present legal system, he says that law is the only means to control the social mechanism, or it alone can protect and further all the social purposes. Law is the only one factor among many others. There are some conditions of social life, such as climate, etc. for which only part-intervention is made by law. Lastly, there are some conditions of social life which are secured exclusively by the law, such as raising of revenue. In short, according to Ihering, the purpose of law in the present legal system is to secure the conditions of social life by the state through coercion. Law always has a purpose. the purpose is to further and social interests.
Ehrlich Law is to be found in social facts- the central point in Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal sources of law. He says: “At present as well as at any other time, the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” ‘Living law’ is the fact that governs social life- the norms which, in fact, govern social life are only partly reflected in the formal law (i.e., statute of judge-made law) of that society. the essential body of legal rules is always based upon the social facts of law. The ‘fact of law’ which underlie all law are usage, domination, possession and declaration of will. These facts regulate the social relations and make the ‘living law of the people’, state-made law (statutes and decisions) is only a part of this great body of law. Generally, these legal norms lag behind the ‘living law’. In the present legal system, his point is used as the law is made according to the requirements of the society. His use of the term ‘sociological jurisprudence’ means that the law in
society should be made and administered with the utmost regard to its requirements. To achieve this end, a very close study of social conditions of the society, in which the law is to function is, indispensible. Also, as we see today, law is made considering the needs of the society and their interest is protected. Thus, what he wants in the legal system is social justice. by ‘justice’ he does not mean some absolute principle, but a relative justice changing with time and place. 4. Roscoe Pound For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a maximum of wants with a minimum of friction. The task of law is ‘social engineering’- Pound’s main thesis is that the task of the law is ‘ social engineering. He says- “For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants, the claims and the demands involved in the existence of civilised society- by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect to by an ordering of human conduct through politically organized society. For the present purpose I am content to see in legal history the record of a continually wider recognising and satisfying of human wants or claims or desires through social control; a more embracing and more complete and effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence- in short, a continually more efficacious social engineering”. The present legal system consists of the concept of social engineering laid down by Pound as social engineering consists of study of actual social effects of legal institutions and legal doctrines, study the means of making the legal rules effective, sociological study in preparation of law making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases. As social engineering consists of three heads under it: private, public and social interests, the present legal system safeguards the three interests as follows: The private interests to be protected by the law are: a) the individual’s interests of personality: These include his physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by the criminal law, law of tort, law of contracts and by limitation upon the power of government to interfere in the matter of belief and opinion, b) Individual’s interests in domestic relations: these include marriage, relations of husband and wife, parents and children, and claims to maintenance, c) Interests of substance: these include proprietary rights, inheritance and testamentary succession, and occupational freedom. the principal public interests are: a) interests in the preservation of the state as such, and b) interests of the state as the guardian of social interests. The social interests deserving legal protection are: a) interests in the preservation of peace and order and maintaining general security, b) interest in preserving social institutions like marriage and religious institutions, c) interest in preserving general morals by counteracting corruption, discouraging gambling and invalidating transactions repugnant to current morality, d) interests in conserving social resources, e) interest in general progress which is to be achieved by freedom of education, freedom of speech and expression, freedom of property, trade, and of commerce, and f) interest in the promotion of human personality.
THE RELEVANCE OF THE THEORIES OF THE SOCIOLOGICAL SCHOOL IN PRESENT LEGAL SYSTEM:
EFFECT OF LAW AND SOCIETY ON EACH OTHER
The above all else effect of the sociological school on present lawful framework is that law is made considering the requirements of the general public as all the pioneers of the school in their hypotheses have one or in the other manner said something very similar that there is no law without society as though the law is made without considering the general public or it doesn’t satisfy the necessities of the general public and can’t keep up the enthusiasm of the general public then it can’t be viewed as law . so both law and society are identified with one another.
RELATIONS BETWEEN INDIVIDUAL, STATE AND SOCIETY HAVE BEEN CHANGING
Relations between individual, state and society have been continually changing and different hypotheses with respect to it have been given every now and then. In the first place, society was administered by customs which had just social authorization. At that point there came the matchless quality of ministers. A short time later the mainstream state developed groundbreaking and it ruled all foundations. As a response the significance of individual was stated by scholars and logicians. There were unrests and political changes. Presently, the need of adjusting the government assistance of the general public and the individual was figured it out. At that point there came an inclination of socialization and an engineered approach was given. The significance of individual for the general public and of the last for the previous was underlined.
IN THE MODERN TIMES TENDENCY OF SOCIALIZATION
At that point came the view that one ought to be considered in the light of the other. The methodologies produced using this perspective are called sociological methodologies. The reasons which achieved this sort of approach are many. The chronicled school, the philosophical development and the relative investigation of legitimate framework all in various manners contributed in achieving this new technique.
BACKGROUND OF THE NEW THOUGHT
The changed political way of thinking, new hypotheses of science, Industrial upset, new monetary idea and ground-breaking thoughts in other sociology in the nineteenth century had their impact on the legitimate idea. The French and German masterminds established the frameworks of the thoughts of socialism and communism which gave a new understanding on the reason for law. The hypothesis of natural advancement gave the possibility of natural improvement which was applied on law too. Along these lines, there occurred a progressive change in the idea of law . In the advanced occasions, social relations are developing increasingly mind boggling. The idea of state and its connection with people have gone through an extraordinary change. New understandings are being given to these progressions yet remembering the fundamental effect of sociological school that is connection among law and society.
On the basis of the development of social values and common rules of behavior we may distinguish three types in the sociological approach to law:
1) the classical sociological approach, which is characteristic of traditional society;
2) the modern sociological approach, which is characteristic of industrial society;
3) the post-modern sociological methodology, which depends on expanding singular government assistance. The sociological methodology is basically reasonable and communicates the connection between society a well as its people and gatherings with law. The traditional sociological way to deal with law rises as the legitimate request of the state is slowly supplanted by the lawful request dependent on customs.
The development of the modern sociological approach to law can be divided into two stages:
1) The phase of building up a majority rules system, where request is set up by methods for laws and progressive enactment. Citizenry are relied upon to willfully comply with the lawful request of the state. Along these lines enactment depends on expanding information about the truth of law. Information on “lawful authenticity” is a boost for the humanism of statute and the improvement of the social science of law.
2) The phase of utilizing present day law as an instrument of making the cutting-edge state. During the time spent advantageous interaction among popular government and present-day political idea law has made the thought of law as an instrument of social change. This idea has assembled two factors – the developing intensity of the cutting-edge state and social change. Current law is viewed as just an instrument of the state’s political force and its effectiveness is controlled by the grouping of political powers, autonomously from the help of different frameworks of social guideline. Investigating the sociological way to deal with law has lost its pertinence. This explains the negative consequences of society’s legal culture:
1) the unconditional endorsing of the instrumental approach to law;
2) the weakening of the link between society and law. The weakening of the link between society and law is particularly hazardous because individuals’ voluntary obedience to the rule of law gives basis for the existence of society as such.
It is to be expressed that howsoever unique the perspectives on different sociological legal scholars may show up, they have one basic point that the law must be concentrated according to society. This view greatly affects present day legitimate idea but it ought not be interpreted as meaning that different strategies have totally stopped to exist.
THOSE WHO ANNOUNCE BOUNTY MUST BE AWARDED STRICTEST PUNISHMENT
It is hitting the headlines all over that the Delhi Police Special Cell has arrested Bhim Sena chief Nawab Satpal Tanwar for allegedly announcing a bounty of Rs 1 crore on Nupur Sharma in a Facebook video and also made threatening remarks. The Delhi Police said that Tanwar had allegedly issued death threats and announced bounties earlier too. Within no time he gets bail as we see in similar other such cases!
It must be asked: How can Centre take all this just lying down so quietly? Why is it becoming so common to issue death threats and announcement of bounty on the head or throat of some one? Why is bail given so quickly and so easily to those who issue such dastardly threats?
Needless to say, our penal laws merit prompt correction in this regard and law makers who are reviewing penal laws must immediately deliberate, discuss and debate on this also so that the growing reprehensible tendency of issuing death threats or threats to maim some person is promptly reigned in!
Of course, we are not living in a Talibani India! We are a secular country and no one has the unfettered right to issue such death threats or threat to cut tongue or hands or legs! Why can’t Centre make such strict laws which mandates at least 14 years imprisonment to all those who dare to issue such death threats or threats to maim someone?
Who is Nupur Sharma? She is just about 37 years old who is a graduate in economics from Delhi University’s Hindu College and LLB from the Delhi University’s Faculty of Law. She also has a Master’s degree in law from the London School of Economics. She started her stint in politics as a student leader and, in 2008, went on to win the post of Delhi University Students’ Union president. It was a time when the Congress’s student wing, the National Students’ Union of India (NSUI), had a strong presence on campuses. So while Nupur managed to get the president’s post, all other posts were won by the NSUI. The most high-profile of her electoral contests, however, remains the 2015 Delhi Assembly election, when she decided to pick up the gauntlet and take on none other than the Aam Aadmi Party (AAP) convenor Arvind Kejriwal from the New Delhi seat. She however lost by 31,583 votes but gave tense moments to Kejriwal.
Many of us know very well that Nupur Sharma who has been a very familiar and prominent face of the party’s youth wing, the Bharatiya Janata Yuva Morcha, has also held several positions in the party such as national executive committee member of the youth wing and member of the Delhi state executive committee. In 2017, she was appointed Delhi BJP’s spokesperson when the then Delhi state unit chief Manoj Tiwari formed his team. In September 2020, when JP Nadda set up his team, Nupur Sharma was then picked as a national spokesperson.
It is said that Nupur Sharma made some controversial comments about Prophet Mohammad who is the founder of Islam. It merits no reiteration that no sane person can ever endorse anything wrong said about such a prominent personality whom Muslims hold in the highest esteem. She spoke about Prophet Mohammad marrying with a very small girl.
We don’t even get to read as to what exactly she said. She later apologized also humbly for the remarks which she made while speaking in a discussion in a news channel. Then why so much of brouhaha is made not just in India but all across the globe! We see so many times even Hindu Gods and Goddesses are not spared! But everything normally ends with an apology! This is what in this case I find most reprehensible and I am glad to see that many Muslim prominent faces too are condemning the issuing of death threats to Nupur Sharma and have voiced the controversy to be laid to rest as she has apologized.
It cannot be glossed over that a very eminent Muslim scholar named Maulana Salafi Engineer Mohammad Ali Mirza of Pakistan has fully, firmly and finally supported Nupur Sharma. He said that the Muslim panelist had first provoked Nupur Sharma by commenting and it was in response to this that she commented about the Prophet. Maulana Mirza said forthrightly that, “We have to see the whole atmosphere in this entire controversy. The real culprit is the Muslim guy who first mocked Hindu religion in the live TV show. BJP leader [Nupur Sharma] made remarks about the Prophet in rebuttal. Islam does not allow us to mock other religions.” He said that from the style and tone of Nupur Sharma’s statement, it will be known that she is retaliating. He said that the first criminal is a Muslim who talked about one’s religion in a live TV program but about whom none is speaking in India. This is what even I find really atrocious!
Maulana Ali further said that in the Nupur Sharma controversy, people of the Arab countries are provoking the atmosphere by sitting in ACs while in India people are protesting in the scorching heat and the policemen are answering them. He further puts across his point saying that, “This is basically an international politics. Arab countries are the slaves of those nations who are not the allies of Russia. These countries instigated Arab countries against India. Before this, there have been many big cases on which Arab countries did not react. Now Arab countries were instigated to put pressure on India regarding Russia.” No doubt, the reference is to countries like Canada, US, UK and other European countries!
We are a democratic country where every person has a right to put across his/her viewpoint. If Nupur Sharma has said something wrong the law is there to take her to task but what about the person named Tasleem Ahmed Rehmani who provoked first Nupur Sharma? Why no one is talking about him? Why he commented adversely about Lord Shiv and the Shivalinga found in the Gyanvapi Masjid well which is just not being discussed anywhere but which even a Maulana based in Pakistan is pointing out as I have just mentioned above! Nupur Sharma who herself is a lawyer has a legitimate point when she claims that her comments were a reaction to continuous insult and disrespect towards our Mahadev (Lord Shiva) by the other panelist named Tasleem Ahmed Rehmani who was also speaking on the TV debate and who happens to be a Muslim. Why no one is talking about him also? Why only Nupur Sharma is alone being selectively made a scapegoat? Why we don’t see anyone mentioning about that person also? This makes it indubitably clear that we practice discrimination in such a terrible manner which cannot be ever justified under any circumstances!
The million dollar question is: Why are we seeing growing intolerance in India? Why those who give death threats are very rarely punished and why at least for 14 years they are not thrown behind bars who issue death threats for any reason whatsoever? Why is Centre not making law on this at the earliest? Centre must act on this also so that no one ever dares to ever issue such bounty awards and death threats. If Centre fails to act on this at the earliest then that day is not far when we will openly see beheading and what not which will only signal the end of democracy in India!
It really pleases me to the hilt to see for myself that none other than the Jamaat Ulama-e-Hind president Suhaib Qasmi on Sunday himself is on record saying that the former Bharatiya Janata Party (BJP) leader Nupur Sharma, who allegedly made controversial remarks on Prophet Muhammad, should be forgiven as per Islam. He added that the organisation of Muslim scholars disagreed with the nationwide protests in wake of her remarks. He also pointed out that the matter should have been laid to rest after she publicly apologized for the remarks which she made. Qasmi said, “Islam says Nupur Sharma should be forgiven. We disagree with the protest that started across the country after Friday prayers against Nupur Sharma and her derogatory remarks.”
Apart from this, Jamaat Ulama-e-Hind also welcomed the decision of the Bharatiya Janata Party (BJP) to suspend Sharma. Qasmi said at the press conference that, “We are welcoming the decision of the law because India is the law of the land and we are not going to take the law into our hands. The law does not allow to come on the road and break the rule.” Jamaat Ulama-e-Hind has decided to issue a ‘fatwa’ through which it will urge people not to support any kind of violence in connection with Nupur Sharma and her remarks. “The fatwa will come against Asaduddin Owaisi and Mohammad Madani,” the Jamaat said. It is good to see that we have such Muslims who have downright condemned the use of physical force and violence against a woman named Nupur Sharma and no civilized country can ever support such death threats or any other kind of threat of causing any kind of harm and that too to a woman!
As if this was not enough, we see Mamata Banerjee passing resolution in West Bengal State Assembly condemning Nupur Sharma but not saying a word on Tasleem Ahmed Rehmani who first provoked Nupur by what he said! Not just this when we see Hindu Sadhus being burnt and beaten to death then no one condemns so strongly! This dubious double standard smacks of sheer hypocrisy which cannot be justified under any circumstances!
This alone explains why even Dutch lawmaker Geert Wilders said on Twitter that, “Don’t listen to the hypocrites. Islamic nations have no democracy, no rule of law, no freedom. They persecute minorities and disrespect human rights like no one else. They should be criticized whose ideology is offensive and abusive, not the heroic Nupur Sharma! Democracies like India and Netherlands have a rule of law. Courts will decide if one oversteps the mark and not mobs who threatens to kill anybody.”
Why these very Islamic countries who are reacting now so angrily on Nupur Sharma and protesting to Indian embassies maintain a shocking and deafening silence to Chinese ghastly assault on Islam by confiscating Qurans, not allowing Muslims to pray even in mosques unlike India where they pray even on roads and mercilessly persecute Uighur Muslims in Xinjiang province? Why these Islamic countries don’t utter a word when ancient Hindu temples are burnt down in Pakistan and Bangladesh and idols of Hindu Gods and Goddesses are also similarly mercilessly broken to pieces? Similarly, why when terrorists trained in Pakistan mercilessly kill Indians which includes even Muslims like a Sub-Inspector Farooq Ahmad Mir in Pulwama do we see no such protest by anyone?
This alone explains why my best friend Sageer Khan said way back in 1993 that, “Muslims enjoy maximum liberty in India all over the world. Muslims must accept that Hindus quietly accepted monogamy in 1955 even though earlier both Hindu men and women could marry as many as they wanted but no one dare abolish polygamy among Muslims because Muslims don’t accept quietly unlike Hindus who accept everything so quietly. If Ram temple and Shiv temple will not be built in Ayodhya or Kashi will it be built in Mecca or Medina? Not a single mosque should ever be built in Ayodhya, Kashi and Mathura! Hindus are so tolerant that inspite of nation getting partitioned on basis of religion still Hindus didn’t favour a theocratic state unlike Pakistan which became a theocratic and yet itself got partitioned in 1971 whereas India is still united and will always stay united because Hindus are so tolerant that they never prefer to fight! So all credit definitely goes to Hindus that India is still a secular country!”
It must be underscored that those who resort to stone pelting or burning of trains or burning of buses or any other kind of violence in a democratic country like India must be punished with the strictest punishment and should never be allowed to go scot free. We saw how in Kanpur among other cities, many protesters who were protesting against the statement of Nupur Sharma pelted stones and damaged vehicles and ransacked shops etc! Violence by anyone whether he/she is a Hindu or Muslim or Sikh or anyone else cannot be justified under any circumstances! If anyone tries to justify this then it will definitely become a most dangerous trend which will be justified on one pretext or the other which can never be in the long term national interest and cannot be ever justified under any circumstances!
It is really most shocking to see that in a democratic country like India which believes in pluralism and tolerance and harmony, we see just one argument in a TV channel assuming such gargantuan proportions which cannot be justified. It is so shocking to see that some leaders and fundamentalists organizations are openly calling for action to be taken against Nupur Sharma and hanging her publicly which I find most reprehensible because we are a democratic country and not some hard core Islamic country like Afghanistan! This has only compelled many Hindu organizations like VHP, Bajrang Dal among others to come out openly in full support of Nupur Sharma and they have a legitimate point too that so much of brouhaha is being made over a debate discussion in a news channel in which the other panelist Tasleem Ahmed Rehmani also was seen making some sarcastic remarks about Lord Shiv which provoked Nupur Sharma also to reply in anger as was pointed out even by a very eminent Maulana of Pakistan as stated above.
All said and done, it is high time and now Centre must definitely step forward and take the much needed bold initiative in this regard of stipulating the strict punishment of at least 14 years if not 20 years in jail to all those who dare to ever announce bounty rewards to kill someone or maim someone or cut the throat of someone which is nowadays becoming a fashion in India and yet such rogues are rarely punished. Why should their property also not be seized? Why should they be let off so gently after just 2 or 3 years only as we see under our present laws?
Why should such criminals who announce bounty on head of someone get bail so easily? Why should such offence not be non-bailable and cognizable? Why should such criminals not be promptly arrested and put behind bars which is their right place also? It certainly merits no reiteration that this burning issue must be addressed by Centre now itself without any more further delay by promptly amending the law in this regard as it brooks no more delay now! It certainly merits no reiteration that this burning issue must be addressed by Centre now without any more further delay as it brooks no more delay now!
Sanjeev Sirohi, Advocate.
The million dollar question is: Why are we seeing growing intolerance in India? Why those who give death threats are very rarely punished and why at least for 14 years they are not thrown behind bars who issue death threats for any reason whatsoever? Why is the Centre not making law on this at the earliest? The Centre must act on this also so that no one ever dares to ever issue such bounty awards and death threats. If the Centre fails to act on this at the earliest, then that day is not far when we will openly see beheading and what not which will only signal the end of democracy in India!
Take everyone into confidence before taking any decision
Damaging government property while protesting against the Agnipath scheme should not be tolerated under any circumstances; clarity is necessary before announcing any scheme.
There is a storm-like situation in several parts of the country following violent protests against the proposed Agnipath scheme which promises to recruit youths between 17.5 years and 21 years of age in the Indian Army for a period of four years. The angry protestors have set several trains afire and damaged a large amount of government property. The storm isn’t over yet, though the age limit has been increased to 23 years now.
However, I wonder why such violent protests are taking place? Sadly, it is being opposed by those who have the passion to join the Army! How can such violent protests be expected from the youths who dream to serve the country through Army? The Army is known for its discipline and the whole nation looks up to it with respect. Whenever I meet any soldier during my journey, I bow down in respect for his service to the country, his dedication and his passion. There can be no scope for indiscipline in such an organisation.
The youths who consider Army as a medium of employment are fundamentally wrong. India’s first Chief of Defence Staff General Bipin Rawat had said very clearly that the Army is not an avenue for employment. I am quoting him here in a nutshell: “It has often been seen that people consider Indian Army as a means of employment. I would like to tell you that please remove this misconception from your mind. If you want to join the Indian Army, your spirit should be high. You should have the ability to find the way where there is no way out. Often many young people come to me saying, ‘Sir, I want a job in the Indian Army.’ I tell them clearly that Indian Army is not a means of employment. If you want to get a job, go to railways or somewhere else. There are many other ways of earning a livelihood like starting your own small business.”
I completely agree with General Bipin Rawat that the Army is a medium of service to the country. That’s why the Army gets so much respect. Many accidents happen in the country and people are killed but none of them get the respect that a martyred soldier gets. His body is brought by aircraft. The whole village comes together to pay the last respect and the Armed Forces offer ceremonial salute.
Everyone has the right to protest in a democracy, but who has given this right to resort to arson and violence. How can the protestors beat up the passengers on board the trains, burn buses and pelt stones! After all, with whose money was the train built? These services come into existence from the tax we pay to the government. Therefore, government property means the property of the common man whose money and skill have built it. History bears eloquent testimony to the fact that nothing can be achieved using violence. We are citizens of the country where Lord Mahavir and Gautam Buddha were born. They gave the message of peace and non-violence. Mahatma Gandhi exhibited to the world the power of non-violence. The twin weapons of non-violence and peaceful protest forced the mighty British Empire, over which the Sun never set, to leave India. The Mahatma not only liberated India by following the path of non-violence, but also helped liberate more than 40 countries in Africa and elsewhere. Barack Obama had said in the Central Hall of the Indian Parliament that if Gandhiji had not taken birth, he might never have become the President of America. Considering the Mahatma’s legacy of peace and non-violence, is there any need for using violence at all?
Only time will tell us how relevant the Agnipath scheme will prove to be or how the Army will benefit from Agniveers. Some experts are calling it a revolutionary plan. In Israel, Singapore and Britain, after the 12th standard, every boy or girl has to serve in the army for some time. In Britain, even the son of the King or Queen has to spend the prescribed time in the army. However, some experts are expressing apprehensions over the Agnipath scheme too. But one thing is quite clear that before announcing the scheme, the government should have prepared the ground well. A public opinion should have been created. Some people may ask: when the maximum age for this scheme was 21 years, why was it increased to 23 years after the protests? Why did the government offer an insurance cover of Rs 1 crore and all facilities like regular servicemen? In fact, lack of preparation creates problems. The scheme to make filing of Income Tax returns faceless is an example. Many cases are still unresolved and the controversy continues. It is natural that if people are convinced that any scheme is beneficial, there will be no opposition. Our Prime Minister Narendra Modi, home minister Amit Shah or defence minister Rajnath Singh must have taken such a major decision only with some positive thinking. Therefore, it is the responsibility of the officials concerned to properly convey to the people the government’s plan for the future. However, officials make mistakes and a wrong message is sent about the people’s representatives. I would also like to say that whenever the government takes such important decisions, it should also take the Opposition into confidence. In fact, this has been the convention in our country.
The most important thing is that no political party should either spark a violent protest about any scheme or take advantage of the fluid situation by fuelling unrest. I am aware that unemployment is the most pressing problem in the country and it is very easy to instigate or mislead the youths on this issue. Efforts should be made to generate so many means of livelihood that the youths do not see any government scheme as a loss of opportunity for themselves.
The government alone cannot provide jobs. Only industry can do this work with more efficiency. If the government promotes industries, the scenario can change. The Prime Minister has announced to provide 10 lakh job opportunities in the next one and a half years. If the officials concerned really succeed in realising this plan, it will instill a great amount of confidence among the youths. The officials though did not fulfil several earlier announcements, let’s hope for the better this time!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
Everyone has the right to protest in a democracy, but who has given this right to resort to arson and violence? How can the protesters beat up passengers on board the trains, burn buses and pelt stones! After all, with whose money was the train built? These services come into existence from the tax we pay to the government. Therefore, government property means the property of the common man whose money and skill have built it. History bears eloquent testimony to the fact that nothing can be achieved using violence. We are citizens of the country where Lord Mahavir and Gautam Buddha were born. They gave the message of peace and non-violence. Mahatma Gandhi exhibited to the world the power of non-violence.
No more a civil servant
I superannuated as a civil servant on 30 June 2018. I had enjoyed every moment of my life as a Civil Servant (I wrote in Not Just a Civil Servant that if I were to be reborn, I would like to be an IAS officer) but what happened thereafter was even better. I am now a master of my own time. I was outspoken while in service. However, the Code of Conduct prevented me from expressing my views in public. Many outsiders who don’t have any idea about the civil services or the Code of Conduct wonder why some civil servants start expressing their views after retirement. They are also perhaps unaware that a number of civil servants do express their opinions freely and frankly on files and during discussions though these don’t get to be known in public for good reason. Thankfully, there are no such restrictions now. I love this freedom. Even during my stint as a civil servant, I did not encourage hangers on, but now, in any case, only true friends are around to engage with. Fortunately, there is not much of a change in the number. However, the biggest revelation was discovering my true worth, financially and otherwise. I was soon to discover that the government was shortchanging me big time.
The best part of post-retirement life is spending time with my family. Due to my professional engagements, my family members often felt ignored, though they never expressed it. I had a genuine desire to make up. However, as both my daughter, Aditi, and son, Apurv, had grown up and settled into their respective professions, I could not still spend as much time with them as I would have wanted to. It was a pity that when they wanted my time from me, I did not have it, and now, when I had all the time, they perhaps did not need me as much. There was a huge lesson here. However, I am making it up now with my twin granddaughters, Dviti and Srisha and my grandson, Avyay. They are bundles of joy as I see them grow. I love behaving just like them. I am a kid all over again. I did for them what I had never done for my own children. Sang them lullabies to put them to sleep. This is indeed the best time of my life. I would have probably missed out even on this one had I taken up a government assignment post-retirement.
I was clear in my mind that I would not apply for any official assignment because I considered it below the dignity of a Secretary, Government of India to ‘apply’. However, I did agree to work in the state of Jharkhand at the behest of the Chief Minister of the State, but it lasted for only a few months as there was a lot to be done in Delhi. Some Ministries kept approaching me for a few tasks, and I did not mind assisting them so long as it was purely honorary in nature and did not impact the newly-acquired freedom that I was enjoying. I accordingly chaired the Committee to reform the National Cadet Corps (NCC) at the behest of the Ministry of Defence. I also agreed to be on the Committee for Corporate Social Responsibility (CSR) constituted by the Ministry of Corporate Affairs. I even headed a committee constituted by the same Ministry to provide suggestions for the portal set up for CSR. The Ministry of Minority Affairs sought my guidance on mainstreaming children studying in minority schools. I duly provide that. Such assignments keep coming and I don’t mind contributing whatever little I can. Will continue to do so but without any obligation from the government.
My initial pre-occupation post-retirement was centred around the publication of my first book, Not Just a Civil Servant. I had been working on the book for quite some time. It could not have been published while I was in service because I was critical of certain aspects of governance. The book was launched on February 23, 2019, within a year of my superannuation. It became an instant bestseller. I did not have to spend a single penny promoting the book in various parts of the country. It was gratifying to see that organisations like the Indian Chamber of Commerce, Federation of Indian Exporters Organization (FIEO), organised events where I had to go and speak. Immediately after that, I started working on my second book, Ethical Dilemmas of a Civil Servant. When it was time to launch the book in 2020, COVID hit the country. Hence, a virtual launch was organised on July 5 2020. This book, too, was received very well by the readers.
I thoroughly enjoyed all the reading and writing that was not merely restricted to books. Soon I was penning down regular columns for three publications: The Daily Guardian, CNBC TV18 and The Millennium Post. The articles in ‘The Guardian’ centred around officers who made it happen despite an adverse set of circumstances. Some of these articles appear in the third segment of my recently released book, “No More a Civil Servant”. The Millennium Post articles highlighted the incredible work done by Civil Society Organisations. Some such articles find a place in the second segment of this book. Large part of this book comprises articles that were published in The Daily Guardian and The Millenium Post. Articles in CNBC TV18 were around current topics. These were apart from the columns that I wrote for other publications intermittently.
My primary pre-occupation post-retirement, however, was with Nexus of Good. To begin with, a Twitter handle @nexusofgood was created wherein positive stories were tweeted. This was followed by organising seminars where good and replicable work could be road-showed. A web portal, www.nexusofgood.org.in was set up and evolved over a while to house hundreds of stories. Soon, Nexus of Good Foundation was brought into existence by setting up a Trust that manages the entire movement. Due to the COVID pandemic, physical seminars could not be held, so webinars substituted them. Thousands of people got associated with this movement. A poet wrote: “Bliss was it in that dawn to be alive,
But to be young was very heaven!”
I am not young now, but I still feel the excitement of youth at the promise of the future! Superannuated life has been highly fulfilling.
(With excerpts from “No More a Civil Servant”)
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
Bail: Procedural fight for restoration of liberty
Sections 440-448 state the conditions of bail bonds. Section 440(1) of the Code of Criminal Procedure states that the amount of the bail bond shall be fixed with due regard to the circumstances of the case and shall not be unreasonable. However, if the amount so levied is heavy, then an application under Section 440(2) has to be filed before the High Court or the Sessions Court for reduction of the levied amount. Now, even after the proper legal representation, the application process may take two to three days without the guarantee of an affirmative order.
When a person is arrested, his liberty is curtailed by the State as a form of punishment in accordance with law; for restoration of liberty, the said person has to apply for bail in the court of law. Pendency of bail applications has been a major issue from a long time. The issue of pendency of bail applications before various High Courts for example – the cognizance of the pendency of bail applications before the Allahabad High Court was raised in many cases by the Supreme Court. Supreme Court in the judgment of Saudan Singh vs. State of UP has directed to release the persons under prison for 10 or more than 10 years to be enlarged on bail. Therefore, now various High Courts in the light of Saudan Singh v. State of UP are releasing the prisoners who undergone the imprisonment for 10 years.
However, even when the person is released there are many procedural delays which he becomes victim of and hence, there is rampant increase in the number of cases where even after the person is released on bail, he has to wait owing to the procedural delays. In this article the authors will elaborate on the several factors that lead to the delay in release of the person enlarged on the bail by the court.
CAUSES OF DELAY
There is no data on record to show the number of prisoners whose release from jail, after the acceptance of bail application, is delayed. However, there are many noteworthy instances which made it evident that in India it’s the procedure which makes a person suffer the most. Last year, Aryan Khan, son of actor Shahrukh Khan was arrested and got bail however, he could not be released on bail owing to certain regulations in the Mumbai Central Prison at Arthur Road, therefore, he spent one more night in prison. Now, this issue was highlighted the most at that time since, the victim of this delayed process was celebrity’s son. Although there is absence of data on how many people face the same problem yet the authors being the practicing advocates encounter these issues on a regular basis. The other day we had to file the bail bonds of a person who got bail in criminal appeal pending before the Allahabad High Court, Lucknow Bench now the person was convicted by the sessions court in 2009 and the particular division which convicted the appellant was demolished due to some structural changes in 2017 now in the absence of notice that where the matters of that particular court were transferred we were unable to find the in charge court before which the bail bonds were to be filed this whole procedure took one day. This incident is a clear example that there is a dire need to bring reforms in criminal justice system. This incident might happen once in hundred cases.
Sections 440-448 state about the conditions of bail bonds. Section 440(1) of the Code of Criminal Procedure states that the amount of the bail bond shall be fixed with due regard to the circumstances of the case and shall not be unreasonable. However, if the amount so levied is heavy then an application under section 440(2) has to be filed before the High Court or the Sessions Court for reduction of the levied amount. Now even after the proper legal representation the application process may take two to three days without the guarantee of the affirmative order.
However, there are other causes as well, when a bail order is passed the counsel of the bail applicant has to first apply for the certified copy of the bail order passed by the court of law. Sometimes, it also happens that the bail order does not get uploaded on time which also causes the unnecessary delay in the release of the person. Then the person has to apply for the certified copy of the bail order, now this may take one day. After this the bail order is verified and if no amount is fixed for filing the bail bonds, then the counsel has to draft application for amount fixing before the court concerned along with a short-affidavit then the concerned Judge fixes the amount and then the particulars of the sureties are sent for verification by the court.
The court concerned before which the bail bonds are filed sometimes fixes the hefty amount upon the person enlarged on bail because of which it sometimes becomes difficult for the person so released to arrange the sureties. The problem does not end only here, the courts while granting bail, impose a condition of furnishing a bail bond. The prisoner through a local surety, relative or a friend, has to arrange the amount either in the form of property documents, RC of vehicle or through a fixed deposit receipt. This is a challenging process for prisoners who belong to indigent backgrounds or are migrants from different states, having no local contact or money in the state where they are lodged, not only this but the other challenge arises when the bail bonds are sent for verification to the tehsil or police station where the sureties reside this process sometimes takes one month depending on the locality of the residence of the sureties arranged by the person released on bail.
Last year the issue of delayed communication of the bail orders to the jail authorities was addressed by Supreme Court bench comprising of L. Nageswara Rao, J.; B.R. Gavai, J.; S. Ravindra Bhat, J. “In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials” Mr. Sidharth Luthra who was Amicus Curiae in the matter told the bench that “When bail orders are passed, it becomes a peculiar situation because the orders don’t reach the jail, the jail authorities don’t know if the person is granted bail or not. The intimation only goes when the bail order goes to the court and then the court looks at the personal bond and based on that the person is released…The man is in custody when the lawyer is arguing in court. Also, it may be an amicus or the legal aid lawyer arguing. Families often do not reach the court. This frustrates the rights of a lot of people. I understand the problem in incorporating it as a rule but it may also come as a direction in the final order. It may come as a part of your lordships’ order because once the order is passed, it only needs a communication from the court concerned to the jail authorities”
In the light of the facts stated above the authors are of the view that a strict timeline should be set by courts for the address verification, because in this whole process sometimes we witness that the court officials or the police officers get the opportunity to get the unjust enrichment from the prisoners’ family for expeditiously releasing the person from jail. Although the bail bonds are the written promises between a criminal defendant to appear for trial or pay a sum of money set by the court, but when a person is arrested, he/she loses the liberty and for restoration of that liberty the person gets enlarged on bail by the court of law. Therefore, it is of utmost importance that the liberty gets restored expeditiously by releasing the person as soon as possible by curtailing the unnecessary procedural formalities or setting a strict timeline for the whole procedure.
There is no data on record to show the number of prisoners whose release from jail, after the acceptance of bail application, is delayed. However, there are many noteworthy instances which made it evident that in India, it’s the procedure which makes a person suffer the most. Last year, Aryan Khan, son of actor Shahrukh Khan, was arrested and got bail; however, he could not be released on bail owing to certain regulations in the Mumbai Central Prison at Arthur Road. Therefore, he spent one more night in prison. Now, this issue was highlighted the most at that time since the victim of this delayed process was a celebrity’s son. Although there is absence of data on how many people face the same problem, the authors being practicing advocates, encounter these issues on a regular basis. The other day, we had to file the bail bonds of a person who got bail in criminal appeal pending before the Allahabad High Court, Lucknow Bench. The person was convicted by the sessions court in 2009 and the particular division which convicted the appellant was demolished due to some structural changes in 2017. Now in the absence of notice that where the matters of that particular court were transferred, we were unable to find the in-charge court before which the bail bonds were to be filed; this whole procedure took one day. This incident is a clear example that there is a dire need to bring reforms in the criminal justice system. This incident might happen once in hundred cases.
No previlege to works contract under the ambit of MSMED Act
Chapter IV of the Act provides for the measures for promotion, development and enhancement of competitiveness of Micro, Small and Medium Enterprises. Chapter V deals with the mechanism of adjudicating the delayed payment disputes of Micro and Small Enterprises through Facilitation Councils by adopting the Alternative Dispute Resolution processes. Any supplier who had supplied the goods or rendered any service to a buyer is entitled to receive the payment on time and in case of non-payment or delayed payment, the suppliers can approach the Facilitation Council of their respective State.
The Micro, Small and Medium Enterprises (MSMEs) is a highly vibrant and dynamic sector of the Indian economy with over 6 crores units, providing employment to 11 crores + people which is just next to Agriculture in our Country. The MSMEs are estimated to contribute nearly 30% of the nation’s GDP. Like other sectors, MSME sector has also been adversely affected in terms of productivity during COVID-19. The Government of India has taken several steps as a follow up on recommendations and impact of COVID-19. The Government has a systematic institutional arrangement to promote MSMEs which covers a legislative and regulatory framework. Due to these efforts, once again, MSMEs are widening their domain across sectors to meet demands of domestic as well as global markets.
The legislature, with an objective of facilitating the promotion & development and enhancing the competitiveness of MSMEs enacted the Micro, Small and Medium Enterprises Development Act (MSMED Act) on 16th June, 2006. The Act provides for several privileges/ benefits for the micro, small and medium enterprises who file the memorandum and register itself with the government. Chapter IV of the Act provides for the measures for promotion, development and enhancement of competitiveness of Micro, Small and Medium Enterprises. Chapter V deals with the mechanism of adjudicating the delayed payment disputes of Micro and Small Enterprises through Facilitation Councils by adopting the Alternative Dispute Resolution processes. Any supplier who had supplied the goods or rendered any service to a buyer is entitled to receive the payment on time and in case of non-payment or delayed payment, the suppliers can approach the Facilitation Council of their respective State. However, the MSMEs who had entered into a work contract require vigilance and legal awareness before entering into such contracts as generally they are not rendered the benefits of the MSMED Act. Hence, works contract is an exception. This write-up is focused on Works Contract, its characteristics, exclusion from the ambit of Act and way ahead.
“WORKS CONTRACT” AND ITS CHARACTERISTICS:
Work Contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law. Simply put, a works contract is essentially a contract of service which may also involve supply of goods in the execution of the contract. In a general sense, a contract of works, may relate to both immovable and immovable property. Example- if a sub-contractor, undertakes a sub-contract for the building work, it would be a works contract in relation to immovable property. Similarly, if a composite supply in relation to movable property such as fabrication/painting/annual maintenance contracts etc. is undertaken, the same would come within the ambit of the broad definition of a works contract. Even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract. The additional obligations in the contract would not alter the nature of contract so long as the contract provides for a contract for works and satisfies the primary description of works contract. The term “works contract” cannot be confined to a contract to provide labour and services but is a contract for undertaking or bringing into existence some “works”.
The Constitutional Bench of the Hon’ble Supreme Court (SC), over-ruling the earlier decision of three-member Bench re State of A.P. v. Kone Elevators (India) Ltd., has held that the activity of manufacture, erection, installation and commissioning of lift is indeed a ‘works contract’ and not a ‘contract for sale of goods’. The basic characteristics of works contract that clearly emerge out of the various decision of Apex Court are –
(a) the works contract is an indivisible contract but, by legal fiction, is divided into two parts, one for sale of goods, and the other for supply of labour and services;
(b) the concept of “dominant nature test” or, for that matter, the “degree of intention test” or “overwhelming component test” for treating a contract as a works contract is not applicable;
(c) the term “works contract” as used in Clause (29A) of Article 366 of the Constitution takes in its sweep all genre of works contract and is not to be narrowly construed to cover one species of contract to provide for labour and service alone;
The Larger Bench of the SC in the case of M/s Kone Elevators India Pvt Ltd v. State of Tamil Nadu held that a contract for supply and installation of lift is a composite contract for supply of goods as well as provision of service and that the service element is obvious is such a contract. Thus, the activity of supply and installation of lift would constitute to be a works contract. The Larger Bench, thus, reversed its earlier decision based on the logic that the major component was the lift and that the skill and labour employed was only incidental to the supply of lift and that this is a contract for sale of goods.
EXCLUSION OF WORKS CONTRACT FROM THE AMBIT OF MSMED ACT:
The benefits of the MSMED Act and Public Procurement Policy could not be extended to the MSEs registered under the MSMED Act. Works contract are excluded from the ambit of MSMED Act and there are various judicial pronouncements by several High Courts regarding the same. The Bombay High Court in case of Sterling Wilson Pvt Limited v. Union of India & Ors. held that the contract under tender is a composite contract for supply of goods as well as installation of fire water spray system, which is a permanent fixture. The goods supplied under the contract are eventually assembled and installed at site and become part of the permanent fixture. The said contract satisfies fundamental characteristics of work contract and hence cannot be considered as a contract simplicitor for sale of goods and services. As stated earlier, the MSMED Act and the Public Procurement Policy is applicable only to procurement of goods and services. The contract under tender not being a contract for sale of goods and predominantly a work contract, the benefits of the Act and the Policy could not be extended to the MSEs registered under the Act.
In another case of PL Adke v. Wardha Municipal Council, Bombay High Court held that the MSMED Act contemplates supply of goods, purchase of goods, and rendering an acceptance of services. In the present case, having coming to the conclusion that it is a works contract and being indivisible and absent the need to deconstruct the contract into its components of sale supply and performance of labour related work it is evident that the MSMED Act cannot be made applicable.
The Allahabad High Court in M/s Rahul Singh v. Union of India & Ors. also reiterated this view. It further held that no provision of the 2006 Act bids us to deconstruct a works contract into elements relating to supply of goods and provision of service. Neither section 11 nor the Public Procurement Policy, 2012 appears to envisage a composite and distinct category.
The Andhra Pradesh High Court very recently in case of Rashtriyalspat Nigam Limited v. The Union Of India discussed that it can be very clearly seen from the figures submitted by the respondent-contractor himself that a very very large percentage of the work or the predominant part of the work is civil and structural work only. Supply element is a small part. The High Court lastly held that the Act 27, 2006 would not apply to the works contracts which were awarded by the Visakhapatnam Steel Plant in these cases by a process of tender. Some element of supply is involved in these works and that by itself is not enough for this Court to hold that the stand of the respondents is correct.
These all pronouncement makes it clear that the works contract are kept outside the ambit of MSMED Act, 2006 as the same are composite and indivisible. However, the judgement passed by Bombay High Court in case of PL Adke (Supra) has been challenged before the Supreme Court vide Special Leave Petition bearing SLP (C) No.4970 of 2021 and the same is pending. Arguments completed on 15.02.2022 in the said Special Leave Petition and judgment is reserved since February, 2022.
It is very difficult to offer the benefits of MSMED Act to works contract, since a works contract is composite, continuous and indivisible, and ascertaining the appointed date or a date of acceptance is next to impossible. Although the other financial benefits vide schemes, subsidy etc can very well availed by the enterprises. Most MSMEs are not wary of this distinction and sign contracts without due diligence. Although the issue is now pending before the Supreme Court, amid this, the Calcutta High Court has passed an interesting order just few days back. The Calcutta High Court in case of NBCC (India) Ltd. v. The State of West Bengal and Ors., has held that objections regarding the non-applicability of the MSMED Act to works contract can be decided in arbitration by MSME Council. The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj upheld the order of the Single Bench whereby the petitioner was referred to arbitration before the MSME Council with a direction that his objection regarding the non-applicability of the MSMED Act as the contract was a works contract would be decided by the Arbitral Tribunal.
Although the Suppliers can take help of this ruling of Calcutta High Court at time of filing of reference before the Facilitation Council and can explore the possibilities of conciliation, yet, it is advised that the MSMEs while entering such works contract must incorporate the provisions of dispute resolution mechanism. Further, the MSMED Act also needs a clarification on the same. The construction activities mostly fall under works contract, yet, the contractors register themselves under MSMED Act under Section F, Division 41 to 43 of the NIC code. But it would not serve its real purpose if they cannot avail the benefit of Procurement Policy or recovery mechanism under the Act as it is a beneficial legislation. The Government while making any decision or giving any clarification cannot ignore the aspect that MSME-registered service enterprises, in specific works contracts are the second largest employers in India. Therefore, it will be interesting to see whether the works contractors can also earn the benefits of MSMED Act in near future.
(The Author is Legal Consultant based in Chandigarh and views are personal.)
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