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Policy & Politics

The exigency of data ombudsman in India

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Edward Snowden, ex-NSA agent, in 2013 revealed the cooperation between Big US tech Giants and the NSA (National Security Agency), U.S. intelligence agency, The Guardian and the Washington Post each published an article about the NSA program PRISM, which forces biggest US internet companies to hand over data on domestic users. though the news was cornered by claiming that the cooperation was under constitutional limits. But his claims and documents completely indicated the other side of the story. Even if we consider that to be half truth the situation gets alarming. As the projects and technology has increased many folds since 2013. The concern is not limited to the optimization of technology. The concern is that the accessibility of the technology has increased so much that now the effect of any mal practice can be so huge that people common people aren’t aware of.

Considering that incident and the ongoing debate on data many Indian thinkers commented that ‘Time is running out and India needs to take a strategic view on data colonization, privacy, and data dominance, it is more of a policy issue and not a technology issue that needs to be addressed soon’. When the term Data colonization was used by the thinkers it indicated the literal meaning of colonization. And the colonization always leads to a bigger problem when the colonizers start experiencing power. The dilemma is real when we say data can give you power in this era. In this article rather discussing how and why data is sensitive and important let us see what need to be done irrespective of the above debate. While we go through the maximum debates of data and related forums in India, very less talk about the instant applicable solutions either the forums are busy in drafting big futuristic solutions or only highlighting the problems. To resolve this issue we can take little steps towards adding the administration and related governance. This will help India to govern the upcoming bills and future laws in better ways as someone will already have an experience of data governance. Technical advancement and legislative upgrade are discussed enough in order to evolve India as a more legitimate market, But the discussion on the part of administrative law needs to be done, an administrative model is must and also a necessity to smoothly implement what the other advancement are proposed in the field of data as scholars have witnessed through times that one time layout is never effective in policy framing and literature must keep on adding the option to maintain the dynamic problems of any field. So here we suggest an existing practice as a model which is though not a complete solution to the data struggle but surely will act as a helping structure to maintain a balance between problems and solutions.

THE OMBUDSMAN MODEL OF ADMINISTRATIVE LAW

If we go through technical definition, the ombudsman is a part of the system of administrative law for scrutinizing the work of the executive. He is the appointee not of the executive but of the legislature. The ombudsman enjoys a large measure of independence and personal responsibility and is primarily a guardian of correct behaviour. His function is to safeguard the interests of citizens by ensuring administration according to law, discovering instances of maladministration, and eliminating defects in administration. Methods of enforcement include bringing pressure to bear on the responsible authority, publicizing a refusal to rectify injustice or a defective administrative practice, bringing the matter to the attention of the legislature, and instigating a criminal prosecution or disciplinary action. But in this situation when the ombudsman will be specifically for monitoring and acknowledging the data breach with the citizens of India the above definition will get modified accordingly.

Before we start building an exclusive administrative model which will be oriented towards sata and how to watch its colonization, we can start with the discussed model which is the ombudsman model but who will be ombudsman? An ombudsman or person is an official, usually appointed by the government, who investigates complaints (usually lodged by private citizens) against businesses, financial institutions, or government departments or other public entities, and attempts to resolve the conflicts or concerns. So a data ombudsman will a government official who will not only monitor the data extraction in different digital jurisdiction but will also address small complains in which user(Citizen of India) Feel that they are targeted by misuse of data but cannot go to court due to lack of intensity in matter or other legal issues. This will help Indian government in tracing the data breach across the country and further analysis will result in better drafting of laws. Also the ombudsman can be given certain powers of initiate inquiry in certain cases without complains this power can be given through check and balances to maintain harmony among administration.

If we see certain previous such models we can refer to the reserve banks model. In 1995 Reserve bank of India also came up with the banking ombudsman scheme. The Banking Ombudsman Scheme was an expeditious and inexpensive forum for bank customers for resolution of complaints relating to certain services rendered by banks. The Banking Ombudsman Scheme was introduced under Section 35 A of the Banking Regulation Act, 1949 by RBI with effect from 1995. Presently the Banking Ombudsman Scheme 2006 (As amended upto July 1, 2017) is in operation. The Banking Ombudsman is a senior official appointed by the Reserve Bank of India to redress customer complaints against deficiency in certain banking services covered under the grounds of complaint specified under Clause 8 of the Banking Ombudsman Scheme 2006 (As amended upto July 1, 2017).

Similarly we can bring a Data ombudsman in India. All small complains can be handled by the data ombudsman, this will act as an initiative to bridge a gap between discussion and practical solution. Once we start acknowledging the smaller complains we can develop better bills and policies as the ministries will have an idea of what actually is happening in Indian market.

What will major benefits of a sitting data ombudsman?

The small complains will start getting addressed, as no one move to courts for small data breaches due to the tiring process of courts.

Once we start getting small complains, it is easier to find out if there is some big conspiracy going on against the nation or an individual.

The hollow discussion going on hypothetical situations will start coming to an end, as a practical approach will be set up.

As without an experienced administrative setup no legislature or law can produce favorable results. Also this will increase the data related literacy in India. When the public will witness the seriousness of the issue by witnessing government engagements it will give a clear message that yes the Data matter, more precisely the crowd must feel that the Indian Data matters.

What must get taken care of is the grounds of complain can be decided to Accommodate the limited power of the ombudsman. This way we can start having an administrative body for data governance and it will help supporting in technical and legislative upgrades more democratically and in balanced manner.

CONCLUSION

The inclusive administration models in respect to data governance are must to sustain economic growth as the market thrives for trust and perhaps the biggest long-term consequence of a data breach is the loss of customer trust. Customers share their sensitive information with businesses like yours assuming that you’ll have the proper security measures in place to protect their data. A 2017 PwC study examined consumer sentiment around cyber security and privacy risk reported that 92% of consumers agree that companies must be proactive about data protection.

A good reputation is often a company’s most prized asset as a business must work constantly to build and maintain the integrity of its brand. However, one compromising episode like a data breach can tarnish even the best of reputations. And if data ombudsman is not bought in time, the companies having monopoly over data will be unwatched and the market will go in the hands of few who can advertise claims of data privacy and will start eliminating small providers in the name of privacy getting complete monopoly in their hands, which will start the real colonization.

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Policy & Politics

Magistrate not a post office to forward all complaints without application of mind: Kerala HC

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In a simple, straightforward, and stimulating judgment titled Jibin Joseph v. Union Territory of Lakshadweep & Anr in Crl.MC No. 2184 of 2021 against the order in Crl.MP 10/2021 of District & Sessions Court, Kavaratti and cited in 2022 LiveLaw (Ker) 329 which was pronounced as recently as on June 22, 2022, the Kerala High Court has minced absolutely no words to hold that a Magistrate Court is bound to apply its mind while exercising the powers conferred to it under Section 156(3) of the Code of Criminal Procedure (CrPC). The Single Judge Bench of Hon’ble Dr Justice Kauser Edappagath stated that while taking cognizance of offences or ordering an investigation into any cognizable case, courts should not merely forward all complaints they receive like a post office. As such, it was emphasized that the powers under Section 156(3) cannot be exercised casually or mechanically but are required to be exercised judiciously.

At the outset, this brief, brilliant, balanced and bold judgment authored by a Single Judge Bench comprising of Hon’ble Dr Justice Kauser Edappagath of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.M.C has been filed to quash Annexure V order dated 27/3/2021 passed by the Court of Sessions, Kozhikode (in-charge of District and Sessions Court, Kavaratti) (for short, the court below).”

Needless to say, the Bench then states in para 2 that, “The petitioner is working as Additional Public Prosecutor and Additional Government Pleader at the District and Sessions Court, Kavaratti, Lakshadweep. The 2nd respondent is a practising lawyer at Kavaratti, Lakshadweep.”

As things stand, the Bench then notes in para 3 that, “The 2nd respondent is representing the accused in SC No. 13/2019 on the file of the Special Court for Trial of POCSO cases, Kavaratti. The allegation in the said case is that the victim girl therein aged 16 years was kidnapped and sexually assaulted by the accused therein.”

Simply put, the Bench then discloses in para 4 that, “Several other crimes were also registered on the allegation that the very same girl was subjected to sexual assault by different persons.”

To put things in perspective, the Bench then envisages in para 5 that, “As per the direction of the Special Court for the trial of POCSO cases, Kavaratti, the victim was accommodated in a Working Women’s Hostel. The victim was found missing one day from the said hostel. The police intervened and took her back to the hostel. Thereafter, the 2nd respondent published a Facebook post alleging that the petitioner is constantly contacting the victim and had a role in the missing incident of the victim girl. As the contents of the said Facebook post revealed the identity of the victim girl, a case was registered against the 2nd respondent as Crime No.35/2020 by Androth police station u/s 23(4) r/w 23(1) & 23(2) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and u/s 228A of the Indian Penal Code, 1860. Annexure II is the FIR. Thereafter, the 2nd respondent filed a complaint to the Station House Officer as well as the Superintendent of Police, Lakshadweep on 1/12/2020 without mentioning any names of the persons who are frequently contacting the victim through phone and regarding the missing incident of the victim girl. Thereafter on 25/1/2021, the 2nd respondent filed another complaint to the Station House Officer, Kavaratti Police Station alleging that the petitioner is constantly contacting the victim and hence committed the offence punishable u/s 11(iv) of the POCSO Act and u/s 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘JJ Act’). However, the Station House Officer did not register the case. Annexure IV is the said complaint. Thereafter the 2nd respondent filed a private complaint at the Court of Sessions, Kavaratti raising the very same allegations. Since there was no sitting at the Court of Sessions, Kavaratti, the Court of Sessions, Kozhikode which was in charge of the Court of Sessions, Kavaratti forwarded the complaint to the Station House Officer, Kavaratti for investigation u/s 156 (3) of Cr. P.C as per the order dated 27/03/2021. Annexure V is the copy of the private complaint. The order forms part of Annexure V. The said order is under challenge in this Crl. M.C.”

As it turned out, the Bench then observes in para 9 that, “As stated already, the 2nd respondent represents the accused and the petitioner, in his capacity as Additional Public Prosecutor, represents the prosecution/victim in SC No.13/2019. A reading of Annexure V complaint would show that the 2nd respondent suppressed the fact that she is representing the accused in the above case. The allegation against the petitioner is that he frequently contacted the victim girl residing in the Working Women’s Hostel over the phone and that amounts to an offence punishable u/s 11(iv) of the POCSO Act. It is further alleged that the petitioner who is an officer of the court has the duty to ensure the safety of the victim, but by frequently contacting the child over the phone, he has committed the offence punishable u/s 75 of the JJ Act as well.”

As we see, the Bench then specifies in para 10 that, “It is clear from Section 11 of the POCSO Act that only when a person does any act mentioned in sub-clauses (i) to (vi) with sexual intent, the same will constitute an offence. Similarly, to attract the offence u/s 75 of the JJ Act, the accused must have actual control or charge over the child. Without ascertaining whether there is an allegation anywhere in the complaint that the petitioner had any sexual intent to attract S.11(iv) of the POCSO Act or whether the petitioner had actual control or charge over the child, the court below simply forwarded the complaint to the police without a speaking order. The impugned order reads as follows:

“Heard complainant. Complaint is referred to SHO, Kavaratti P.S., u/s 156(3) Cr. P.C to register and investigate the case and report to this court”.”

Most significantly, what forms the cornerstone of this brilliant judgment is then laid bare in para 11 wherein it is postulated that, “Section 156(3) of Cr.P.C. which operates at the pre-cognizance stage confers powers on the Magistrate/Court, who is empowered to take cognizance of the offence under S.190, to order investigation into any cognizable case. It is settled that the powers under S.156(3) of the Cr.PC cannot be exercised casually or mechanically but are required to be exercised judiciously. True, at that stage, the Magistrate/Court is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the allegations in the complaint. However, the Magistrate/Court should not adopt the easy way of forwarding the complaint unmindful of the consequences of forwarding such complaints. The Magistrate/Court is not merely functioning as a “post office” in forwarding anything and everything filed in the form of a complaint. The Magistrate/Judge should certainly scrutinize the allegations in the complaint to satisfy himself that it discloses the necessary ingredients of the offence for which investigation is intended to be ordered and to find out whether it is a matter to be forwarded to the police to collect materials for a successful prosecution against the accused. The Magistrate/Court should ensure that the complaint is supported by an affidavit duly sworn in by the complainant as held by the Apex Court in Priyanka Srivastava and Another v. State of U.P. and Others (2015 KHC 4242). The Magistrate/Court has a duty to protect the interest of the accused also since, at the time of conducting inquiry or forwarding of the complaint to the police under S.156(3) Cr.P.C, the accused does not get any right of hearing.”

While citing the relevant case laws, the Bench then mentions in para 12 that, “The scope of Section 156(3) of Cr.P.C came up for consideration before the Apex Court in several cases. In Maksud Saiyed (supra), the Apex Court examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr. P.C, the Magistrate is required to apply his mind. In Ramdev Food Products Pvt. Ltd. v. State of Gujarat (2015 KHC 4199) and in Priyanka Srivastava (supra), the Apex Court reiterated that power under S.156(3) warrants application of judicial mind. In Anil Kumar and Others v. M.K. Aiyappa and Others [(2013) 10 SCC 705], it was held that the application of mind by the Magistrate should be reflected in the order. It was further held that the mere statement that he has gone through the complaint, and documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under S.156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.”

Be it noted, the Bench then minces no words to state unequivocally in para 13 that, “A reading of Annexure V order would show that it was passed mechanically without examining the facts of the case, nature of allegations and without ascertaining whether the information revealed any cognizable offence or not. The order does not reflect the reason to order investigation u/s 156(3) of Cr.P.C. As stated already, the offences alleged against the petitioner are u/s 11(iv) of the POCSO Act and S.75 of the JJ Act. The allegation is that the petitioner who was the Additional Prosecutor in charge of the conduct of the case of the victim frequently contacted the victim girl residing in the Working Women’s Hostel over phone. As per S.11 of the POCSO Act, the alleged act should be committed with sexual intent. There is absolutely no allegation in Annexure IV complaint addressed to the police that the petitioner had any sexual intent. In Annexure V private complaint filed at the court below also, there are no materials to show that the said act was done by the petitioner with sexual intent. To attract S.75 of the JJ Act, the accused must have actual control over the victim child. There is no such allegation either in Annexure IV or in Annexure V complaints. Law is well settled that before directing the police to investigate under sub-section (3) of S.156 of Cr.P.C., the Magistrate/court should form an opinion that the complaint discloses a cognizable offence. When the allegation made in the complaint does not disclose a cognizable offence, the Magistrate/Court has no jurisdiction to order police investigation under sub-section (3) of S.156 of Cr.P.C. As stated already, the allegations made in the complaint and the documents produced in support thereof do not prima facie disclose the ingredients of S.11(iv) of the POCSO Act and S.75 of the JJ Act.”

Finally, the Bench then concludes by holding in para 14 that, “The Station House Officer, Kavaratti conducted a thorough enquiry on the complaint preferred by the 2nd respondent and submitted a report at the court below. Annexure III is the said report. The report discloses that the allegation in the complaint of the 2nd respondent that the petitioner had been contacting the victim over the phone continuously was factually verified by taking the call detail report of the mobile phone number used by the victim as well as the petitioner. It was found that there was absolutely no phone call contact between the victim girl and the petitioner. It is further reported that the statement of the victim, warden of Working Women’s Hostel, Kavaratti and roommates of the victim girl were recorded and none of them stated that the petitioner made any attempt to contact the victim. The victim girl clearly stated that she was never contacted by the petitioner. The report further state that the security lapse at Working Women’s Hostel, Kavaratti is the main reason for the missing of the victim child. The learned standing counsel for the Union Territory of Lakshadweep has submitted before me that the complaint preferred by the 2nd respondent against the petitioner is false, frivolous ill-motivated and there is no substance in it. For the reasons stated above, I am of the view that proceeding further with Annexure V order would be a sheer abuse of the process of law. Hence, Annexure V order and all further proceedings thereto stand hereby quashed. Crl. M.C. is allowed.”

All told, the Kerala High Court has made it indubitably clear that the Magistrate/Court is not merely functioning as a “post office” in forwarding anything and everything filed in the form of a complaint without application of mind. This we have discussed in detail in para 11 as stated hereinabove. Of course, all the Courts must adhere to what the Kerala High Court has held so very commendably in this leading case.

Most significantly, what forms the cornerstone of this brilliant judgment is then laid bare in para 11 wherein it is postulated that, “Section 156(3) of Cr.P.C. which operates at the pre-cognizance stage confers powers on the Magistrate/Court, who is empowered to take cognizance of the offence under S.190, to order investigation into any cognizable case. It is settled that the powers under S.156(3) of the Cr.PC cannot be exercised casually or mechanically but are required to be exercised judiciously. True, at that stage, the Magistrate/Court is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the allegations in the complaint.”

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

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

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

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

BRIEF FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE:-

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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Policy & Politics

Evolution of the IAS

Anil Swarup

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Will it survive?

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

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

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

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

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

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

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

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

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

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

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Policy & Politics

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

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

Vijay Darda

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

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

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

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

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

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

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

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

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Policy & Politics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(iv) Possibility of accused absconding

(v) Likelihood of/actual misuse of bail

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

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

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

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

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

d) Where bail has been granted on untenable grounds.

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

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

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

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

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

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

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

· The deceased succumbed to his injuries on 14.01.2021.

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

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

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

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

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

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

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

(3) Proceedings of 110G on 05.11.2021

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

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

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

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

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

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

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

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

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

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Policy & Politics

CREATING A LEGAL FRAMEWORK FOR THE INDIAN OFFSHORE WIND SECTOR

Manushi Desai

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

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

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

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

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

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

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

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

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

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