‘VAN GUJJARS’ FORCED TO SURVIVE IN CONDITIONS BELOW ANIMAL EXISTENCE: UTTARAKHAND HIGH COURT DIRECTS GOVT TO PROVIDE THEM WITH FOOD, HOUSE, MEDICINES - The Daily Guardian
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‘VAN GUJJARS’ FORCED TO SURVIVE IN CONDITIONS BELOW ANIMAL EXISTENCE: UTTARAKHAND HIGH COURT DIRECTS GOVT TO PROVIDE THEM WITH FOOD, HOUSE, MEDICINES

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While making a strong observation that Van Gujjars families are forced to live in open tents, in an open field, under the open sky, the Uttarakhand High Court just recently on May 25, 2021 in a brief, balanced, brilliant and bold judgment titled Think Act Rise Foundation Through Arjun Kasana vs State of Uttarakhand and others in Writ Petition (PIL) No. 140 of 2019 with WPPIL No. 6 of 2012, WPMS No. 2603 of 2019, WPPIL No. 79 of 2020 and WPPIL No. 203 of 2020 has prima facie ruled that the fundamental right to life under Article 21 of the Constitution of India of Van Gujjars families was being violated by the respondents. It would be pertinent to mention here that “Van Gujjars” are the largest forest-dwelling community in Uttarakhand. It must also be borne in mind that “Van Gujjars” have been residing in the forest areas for last more than hundred years.

While rightly, remarkably and rationally noting their lamentable condition, the Bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma had very aptly remarked that, “It is, indeed, trite to state that Article 21 of the Constitution of India forbids the State from reducing the lives of its people below the animal existence. Every citizen not only has a right to live, but also has a right to live with dignity.”

To start with, this latest, learned, laudable and landmark judgement authored by Chief Justice Raghvendra Singh Chauhan for himself and Justice Alok Kumar Verma sets the ball rolling by first and foremost observing in the opening para 1 that, “A supplementary affidavit has been filed by Mr. Arjun Kasana, the petitioner, party-in-person. According to Mr. Kasana, “Van Gujjars” are the largest forest dwelling community in Uttarakhand. “Van Gujjars” have been residing in the forest areas for last more than hundred years. During this part of the year, they come down to the lower areas. of the State. A few of the families of the “Van Gujjars” have migrated to Govind Pashu Vihar National Park, Uttarkashi. Since these families are valid permit holders of the Park, they should be permitted to enter the park to eke out their living in the forest itself. However. ever since they have reached the Park, they are not being permitted to enter the Park by the Deputy Director of the Park, Mr. Komal Singh. Therefore, these families are forced to live in open tents under the sky. Moreover, due to the Covid-19 pandemic and due to the lock-down, these families cannot sell their milk to the neighbouring villages. Thus, these families are reduced to hand to mouth existence. In fact, their lives have been reduced to “below animal existence”. For, they have neither any shelter to live in, nor any economic means to survive. Hence, the petitioner, party-in-person, prays that immediate arrangements should be made for these families by the District Magistrate, and by the Deputy Director of the Park.”

To say the least, the Bench then stipulates in para 2 that, “On the other hand, Mr. S.N. Babulkar, the learned Advocate General, informs this Court that migration of these persons may endanger the wildlife within the Park. For, Corona Virus may spread from human beings to animals. Hence, until and unless the families are declared to be negative in Corona Virus test, they cannot be permitted to enter the Park.”

Furthermore, the Bench then specifies in para 3 that, “In rejoinder, Mr. Kasana submits that it is the duty of the Government to test these persons, and if they are found to be negative, then they should be permitted to enter the Park. Till they are tested, a reasonable arrangement should be made to save their lives. According to Mr. Kasana, under Article 21 of the Constitution of India these persons have as much right to live as any other citizen. In order to buttress his plead, Mr. Kasana has submitted certain photographs along with the Supplementary Affidavit.”

More revealingly, the Bench then puts forth in para 5 after hearing both the sides that, “A bare perusal of the photographs submitted with the Supplementary Affidavit clearly reveal that families are forced to live in open tents, in open field, under the open sky. The photographs also show small children, and new born babies, being wrapped in blankets, and sleeping on the ground. The photographs also reveal that some cattle are tied next to the tent, and some cattle have died.”

Most remarkably, the Bench then minces no words to hold in para 6 that, “It is, indeed, trite to state that Article 21 of the Constitution of India forbids the State from reducing the lives of its people below the animal existence. Every citizen not only has a right to live, but also has a right to live with dignity. However, it seems that the callous attitude of the Deputy Director of the Park, and of the Civil Administration has forced these families to survive in conditions, which are below the animal existence.”

Be it noted, the Bench then minces no words to hold in para 7 that, “Therefore, prima facie, the fundamental right to life under Article 21 of the Constitution of India is being violated by the respondents. Therefore, this Court directs the Collector, District-Uttarkashi and the Deputy Director of the Park to ensure that these families are comfortably accommodated in “Pacca houses”. They shall be provided with food, water, and medicines. They shall also be provided with fodder for their cattle. It is further directed that all the families shall be tested for Covid-19. In case, they are found to be negative, and if they are valid permit holders, arrangements shall be made to permit them to enter the Park for the duration allowed by law.”

As it turned out, the Bench then directs in para 8 that, “The District Magistrate, District-Uttarkashi, and the Deputy Director of the Park are directed to submit their reports with regard to the substantial steps taken by them to implement the directions issued by this Court. The said reports shall be submitted on or before 15th June, 2021.”

As we see, the Bench then directs in para 9 that, “Let a certified copy of this order be furnished to the parties, on payment of the prescribed charges, today itself.” Finally. It is then held in the last para 10 that, “List this case on 16.06.2021.”

Of course, we have to keep our fingers crossed till the case reaches its logical conclusion and is finally decided. But one thing is for sure : The Division Bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma of Uttarakhand High Court have thus laid bare as to how the Van Gujjar families are compelled to survive in conditions below animal existence. It is a no- brainer that the Uttarakhand High Court has very rightly directed the government to provide them food, houses, medicines etc. It has also very rightly espoused that the lives of the people cannot be reduced below the animal existence and ever citizen not only has a right to live, but also has a right to live with dignity. Very rightly so!

Sanjeev Sirohi, Advocate

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Legally Speaking

SC shocked as bail plea not listed for a year

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While according due respect, prime importance and high priority to even the rights of the accused, the Supreme Court has as recently as on June 15, 2021 in a latest, learned, laudable and landmark judgement titled Chunni Lal Gaba vs Assistant Director, Directorate of Enforcement in Special Leave Petition (Criminal) Diary No. 11581/2021 (Arising out of impugned final judgement and order dated 29-04-2021 in CRMM No. 8112/2020 passed by the High Court of Punjab & Haryana at Chandigarh) (FOR ADMISSION and I.R. and IA No.66481/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.66482/2021-EXEMPTION FROM FILING AFFIDAVIT and IA No.66476/2021-PERMISSION TO FILE SLP WITHOUT CERTIFIED/PLAIN COPY OF IMPUGNED ORDER) minced just no words to hold that non-listing of bail application impinges on liberty of accused. While expressing shock over a bail application filed before the Punjab and Haryana High Court not being listed for hearing for more than one year, the Supreme Court did not take time in observing that under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress. Very rightly so!

Without mincing any words, the top court while taking up the cudgels to protect the rights of he accused also and observed aptly that, “Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.” We all know how Mohammad Aamir Khan kept fighting for years and was wrongly kept in jail for 14 years before he was granted bail. Similarly we also saw how in another case an Army Officer named Lt Col Prasad Shrikant Purohit was kept in jail for more than 9 years even though the charge-sheet was not filed against him and he is still a serving Army Officer and this can only be labelled as worst “judicial murder and police murder”!

To put it mildly: Why was evidence not produced in court for nine years if there was any evidence? Under no circumstances can this be ever justified. Had it not been a legal super giant named Harish Salve who is the highest paid lawyer of India and who is also former Solicitor General of India who represented India even in the high profile Kulbhushan Jadhav case in ICJ against Pakistan perhaps Ly Col Purohit would have been rotting in jail even after 14 years just like Mohammad Aamir Khan for which the whole Indian Army must feel terribly ashamed that an honest and upright serving Army Officer was falsely implicated by Mumbai ATS and even former Defence Minister Manohar Parikar had conceded that wrong had been done with Col Purohit and asked Army to hand over documents and copies of court of inquiry to him so that he could come to know what all was there in it. Army must feel terribly ashamed over it that it did not hold the hand of an honest and upright officer like Lt Col Purohit and instead cooperated fully with Mumbai ATS which cannot be justified under any circumstances!

, coming back to the present case, it must be mentioned here that the vacation Bench of Justice Hemant Gupta and Justice V Ramasubramanian of the Apex Court was considering a Special Leave Petition (SLP) against an April order of the Punjab and Haryana High Court whereby the request for hearing of an application for bail under Section 439 of the CrPC pending since February 28, 2020 was declined. It must also be mentioned here that Justice Hemant Gupta who was earlier a Judge of the Punjab and Haryana High Court told the senior advocate who was arguing the case that, “I am aware of the situation of the Punjab and Haryana High Court.”

While elaborating on the facts of the present case, it must be stated here that the SLP petitioner, Chunni Lal Gaba is a former President of a Municipal Council in Punjab and is also an accused in a multi-crore synthetic drug racket. In addition to being charge-sheeted under the NDPS Act, the ED has charge-sheeted Gaba and nine members of his family associated with his 11 firms in connection with the infamous ‘Bhola drug case’ for the alleged violation of the Prevention of Money Laundering Act. Gaba was granted interim bail on March 28, 2020 which was further extended till June 20, 2020 and finally till July 3, 2020.

Furthermore, the ED had moved the High Court contending that the Department was not heard of granting interim bail at the initial stage and thereafter. It must also be noted that on July 2, 2020, the High Court directed the Trial Court to afford full opportunity to the Department to oppose the extension of interim bail, taking into consideration the gravity of the offence.

Truth be told, it may be recalled that the Punjab and Haryana High Court had said that, “We also make it clear that while hearing the matter, learned trial court shall take into consideration the clarificatory order dated 13.04.2020 passed by the Hon’ble Supreme Court as well as Section 45 of the Prevention of Money Laundering Act, 2002. We also make it clear that bail in cases involving heinous crimes like the offences under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Protection of Children from Sexual Offences Act, 2012 and the Prevention of Money Laundering Act, 2002, may not be granted as a matter of right.” We saw subsequently how on July 4, 2020, the CBI court which is also a designated ED court had cancelled Gaba’s interim bail and sent him to judicial custody.

At the outset, the vacation Bench of Apex Court comprising of Justice Hemant Gupta and Justice V Ramasubramanian sets the ball rolling by observing in the introductory para that, “Permission to file SLP without certified/plain copy of impugned order granted.”

While laying the background and the purpose of the petition, the Bench then puts forth in the next para that, “The present special leave petition is directed against an order whereby the request for hearing of an application for bail under Section 439 of the Code of Criminal Procedure, 1973, pending since 28.02.2020, was declined.”

Most significantly, what forms the cornerstone of this extremely commendable judgment is then stated by observing that, “Normally, we do not interfere with an interim order passed by the High Court but we are constrained to pass the present order as we are shocked to see that the bail application under Section 439 CrPC is not being listed for hearing for more than one year. The accused has a right to hearing of his application for bail. In fact, the denial of hearing is an infringement of right and liberty assured to an accused.”

Adding more to it, the Bench then also sought to make it absolutely clear that, “Even during the pandemic, when all Courts are making attempts to hear and decide all matter, non-listing of such an application for bail defeats the administration of justice. Under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress. Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.”

While striking the right chord, the Bench then further adds in the next para that, “Therefore, we hope that the High Court will be able to take up the application for bail at an early date so that the right of the accused of hearing of application for bail is not taken away by not entertaining such application on the mentioning memo.”

In its concluding part, the Bench then finally observes that, “Let the Registrar General of the High Court bring this Order to the notice of the competent authority to take remedial steps at the earliest. The special leave petition stands disposed of accordingly. Pending applications stand disposed of.”

Before winding up, it has to be said in all fairness that this most commendable and noteworthy judgment which speaks out vociferously for the rights of the accused also and shows concern for their liberty too has to be applauded, emulated and implemented by all the courts, in all the states and in all the parts of the country without any exception whatsoever! To lock up a person in jail for years without giving him any opportunity to argue his/her case in court is the worst travesty of justice and is nothing but most horrible “judicial and police murder” for which both the judiciary and the police are culpable and cannot be exonerated under any circumstances! A law must be made in this effect that no person shall be kept in jail beyond few days without being produced before the court to face trial! This status quo of accused languishing in jail for years has to be wiped out and a new system where accused rights are taken care of also must be implemented now itself!

It goes without saying that if there is proof with the police, why it does not file chargesheet for nine years as we saw in Lt Col Shrikanth Purohit’s case and just keeps chanting “Swaha, Swaha, Swaha, Swaha” not for one year or two year or three years or five years or eight years but for full nine years and to rub to the wounds of the affected accused person, judiciary does virtually nothing but to inexplicably observe everything happening like a mute and most helpless spectator until some legal super giant like Harish Salve appears suddenly on the scene to speak up for the worst affected person for which judiciary has lots of explaining to do itself and it cannot be ever pardoned because judiciary has lots of power which it must exercise whenever and wherever it finds that the human rights of the accused person are being violated with impunity by the police in cahoots with an inactive judiciary failing which its own reputation will take the worst beating! It must be asked as to why in such cases should judiciary also not be held equally culpable just like police? All the courts, let me repeat, all the courts must always accord supreme importance to the personal liberty of the accused also because the accused also until proven guilty is innocent and has to be treated so!

Needless to say, the rampant misuse and abuse of draconian laws like UAPA, sedition, anti-dowry laws and several others has to be checked most strictly now itself as police too many times have been found to be on the extreme wrong side of law on grounds of extraneous considerations like money, personal enmity or political pressure and so on! We all know how recently three to four senior police officers were dismissed in Maharashtra for being on the wrong side of law!

Please read concluding on thedailyguardian.com

We also saw how senior IPS officers were making most serious corruption charges against top politicians and of demanding crores of rupees in extortion extorted from the people at large in Maharashtra and it is high time that police reforms too must be implemented and police freed from political control so that police can function independently without being adversely affected by politicians of any party no matter who it may be!

Last but not the least, no one is saying that stringent laws should be abolished but all that one is advocating is that an active judiciary must ensure that such stringent laws are not abused and promptly take action against the erring police or other men in uniform whenever they commit any such wrong which impinges on the personal liberty of the accused without any valid ground just like we see in this case which is why this most historic judgment even though is so short yet is being hailed all over most generously and which cannot be questioned also as there are valid reasons also for it! This can no longer be brushed aside now under carpet! It has to be addressed now itself and most effectively by holding police strictly accountable whenever they hold to ransom the personal liberty of the accused!

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Legally Speaking

Insolvency and Bankruptcy Code: Walking at snail’s pace with various speed humps

Stuti Tiwari

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While entering the fifth year of existence, before COVID-19 moratorium was imposed the Insolvency and Bankruptcy code was already walking at the snail pace with various speed humps but after the sudden blow of COVID-19 NCLT will be facing the bigger problem such as deluge of cases once the moratorium is lifted.

As IBC was brought into existence with aim “to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues ” but everything came to abrupt halt in the calendar year of 2020 .

Across the world, it has been observed that the corporate which was in the pink of financial conditions before the pandemic brought down the GDP reflecting sharp decline in the economy. Supply chains are still unstable, valuation of the stock decreased due to global fall and in total the valuation of business fell steeply.

Looking at such scenarios, through various viewpoints it was suggested that Insolvency and Bankruptcy Code (2016) also needs little bit of cushioning to keep up with the change.

Former RBI Governor, Mr. Raghuram Rajan quotes in one of his interviews that “ a key step India needs to take in the run of economic recovery is to clean up the financial sector of past stresses. He further says that NCLT should be working in overdrive to clear out previous cases and prepare for the deluge of new ones.”

Insolvency and Bankruptcy code being a new legislation has been facing the problem of winding up the case within stipulated time and lack of manpower in NCLT in comparison to the cases filed; with this storm of COVID-19 and reimposition of moratorium, the real challenge which India would be facing will be when there is lifting of suspension on filing of new cases under the Code and there will be deluge of cases pre and post COVID-19 on NCLT.

On January 5,2020 first NCLT President, former Chief Justice Shri M.M. Kumar retired and the IBC has been without a full-time president ever since. On December 9, the Supreme Court of India in an order stated that former Justice Shri BSV Prakash Kumar who was acting NCLT president since Justice Kumar retired would continue to function as an acting President until appointment of the regular one.  

Justice Shri. S.J. Mukhopadhaya who was the first chairperson of the NCLAT also completed his tenure in March. Justice Shri B.L.Bhat took over as an acting chairperson of NCLAT. Justice Shri AIS Cheema, Member (Judicial) has been designated as the officiating chairperson of National Company Law Appellate Tribunal with effect from 18th April’21.

The problem with manpower had hardly been resolved when a blow of COVID-19 shutdown happened in March in order to prevent the spread also led to shutdown of NCLT and NCLAT which affected the newly evolving legislation. However, other courts of law across the country eventually opted for online hearing of cases to lessen the burden of cases post lockdown, insolvency courts couldn’t do much with the same.

According to the report from official data, ‘63% of the more than 21,000 cases pending with NCLT benches as of end-January are IBC cases.’ Keeping in mind that IBC is an evolving legislation and with very limited NCLT benches, there is an urgent need to allow a simplified form of depot restructuring through different methods and look for alternate resolution for dispute settlement mechanisms under IBC rather than overburdening NCLT binding them with time and less manpower.

Another problem faced by NCLT is its infrastructure, since the establishment of the Code it has surpassed the capacity of the existing infrastructure and has resulted in an obstruction of cases even at the early stage of admission. A total of around 19,844 cases were pending before NCLT as of July 31, 2020 including 12,438 cases under IBC. During the FY 2020, almost 480 cases were admitted by the tribunal every quarter, if this existing pace continues it may take around six years to complete the backlog cases shaking the basic motive behind establishment of IBC i.e., resolution process in time bound manner.

Admission of cases under tribunal has been one of the major concerns in the current insolvency proceedings. It takes more than 14 days as envisaged in the code for the acceptance of the case. The performance of the tribunal has also differed from bench to bench with regard to resolution in a time bound manner. Places like Delhi and Mumbai with highest number of insolvency cases NCLT usually take for resolution more than 475 days in comparison to the national average of 440 days resolution process. On the other hand, places like Bangalore and Kolkata have better average of 352 and 339 days respectively.

History has been a great teacher. Those who ignore its lesson are ill fated. In order to meet the challenges in the ecosystem any implementation or legislation enactment needs to constantly evolve. Insolvency and Bankruptcy code is an evolving legislation and it was already struggling with the growing demand of the code.

Senior Adv. Mr. Ramji Srinivasan who has represented in major cases including IL&FS says “ The decision of the government keeping in mind the COVID-19 situation and providing a holiday against the defaults post lockdown and raising the threshold of the defaults will not only have positive but also negative impact.”

He further says that such rising of threshold will reflect a positive impact and will support and shield such businesses who are finding themselves in liquidity crises. On the other side, the negative impact will be on smaller businesses that owe smaller amounts by bigger businesses and are going through the difficulty of recovery of the amount.”

Another Senior Advocate Mr. Abhinav Vashisht said “There could be a tremendous rush post lockdown and the tribunal has to follow the process of prioritising the urgent matters for hearing given their present strength.”

Mr. Vashisht further adds “It’s important to take up urgent cases by the tribunal and some could be taken up later but until and unless there is no increase in the number all over the place, it would be extremely difficult to fill up the gap of more than an year of the non-filling and keeping in mind the current pandemic situation it would lead to further insolvencies”

When the case of Jet Airways Private limited knocked the door NCLT, the tribunal faced the requirement of actual, clear and elaborative provision on cross border insolvency not just two sections (Sections 234 and 235) which gives not a very clear idea as to how to deal with cross border insolvency. It is vital for the country to introduce the concept of cross border insolvency regime in the legal framework 

In order to reduce the deluge of cases NCLT requires new offices, before new cases it is important to wipe out the old one and prepare for an avalanche of new cases.

Restructuring the debts seems to be on top priority for many firms as access to finance moving forward is extremely important for few firms, there when the concept of cleaning up financial sector comes into picture keeping in mind that one can lend when that is required.

Another aspect which should be considered by IBC is if the basic motive behind establishment of the code is to provide time bond resolution, it would be difficult to achieve such motive if NCLT and NCLAT are the only bodies deluged with resolution cases. There can be ‘out of court’ settlement in the case of insolvency disputes , it was not only reduce the pressure over the tribunals but will also provide flexibility to creditors and companies as every time the default of the company doesn’t mark the death of the company,

As quoted by Former RBI Governor , Mr. Raghuram Rajan that when IBC has moved two steps forward and one step backward due to COVID-19 pandemic ,it is important to prepare for the next phase . It is important to revitalise our companies, and it is equally important to prepare a plan where companies not only come out from this and reopen and grow.”

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Legally Speaking

The raging Covid-19 pandemic: Environmental justice

Unlike popular notions and misconceptions, the Indian courts braved unimaginable odds to deliver speedy environmental justice during the pandemic when the entire country was battered with different Covid-19 waves. India’s ecological security has been superb with new priorities in the post-pandemic world. It has been rightly postulated by a scholar, ‘What is the use of a house if you haven’t got a tolerable planet to put it on?’

Sudhir Mishra Raghav Sethi and Simran Gupta

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The Prime Minister of India, in the 47th G7 summit held recently, clearly demarcated the national policy on climate change and gave the ‘One Earth, One Health’ mantra. The G7 summit is held annually among the group of seven wealthy nations that came together to discuss pressing climate issues; this year’s highlight being the ongoing battle with the global pandemic, while also deliberating on critical climate challenges. The UK, being the chair of the event, invited India too this time for G7 at Cornwall.

There is normally a growing criticism about India and China both not doing many international commitments and mandating carbon reductions. However, PM Modi clarified and assured the international community that India is doing a lot on carbon reductions, electric mobility, saving on electricity, promoting non-conventional energy sources on a very comprehensive level.

The reason is India has already created a move for carbon related technology and exemplary promotion of electric vehicles. India has marked ahead of other countries on the use of non-conventional energies. The country is making an ambitious push towards electric mobility to reduce smog. In March 2021, 25,640 electric vehicles were sold across the country, of which 90% were two and three-wheelers. The total 400,000 EVs registered in India in 2019 accounted for less than 0.2% of all vehicles. Committing to Net Zero India looks at emissions overall, allowing for the removal of any unavoidable emissions, such as those from aviation or manufacturing. Removing greenhouse gases could be via nature, as trees take carbon dioxide from the atmosphere, or through new technology or changing industrial processes.

While India was already crippling with many important environment issues, the COVID-19 pandemic came as a major jolt for the entire country. Where one could witness varied exotic species of animals on road in place of environment polluting vehicles, the courts judicial intervention did not cease to operate even during the harsh times of both waves of the COVID-19 pandemic of our nation.

Even though the COVID-19 pandemic shifted the focus from the environment to public health, the Indian judiciary has continued to play a significant role in addressing the environmental concerns that arose not only due to the pandemic but also the ones that have persisted since long and are somewhat man-made. The response of the PM in G7 was on behalf of a resilient resurgent India which has a renewed focus on its environmental and health commitments.

For example, it was evident that the Oxygen Bench of the Delhi High Court like many other High Courts of the country were persistent in administering with its judicial intervention catering emergency remedies for public health, the Supreme Court of India (“SC”) and even the Green Bench of the National Green Tribunal (“NGT”) were also steadfast in addressing the environmental concerns of the country at the same time.

It is imperative to analyse the steps taken by the judicial forums in the past year to understand the ways in which environmental concerns were addressed in the country and what lies ahead in preserving the essential elements of our ecological security.

Few examples of great judicial interventions in the past one year for the cause of environment:

For the purposes of protection of the Great Indian Bustard and the Lesser Florican which are both at the verge of extinction, a public interest writ bearing Writ Petition (Civil) No. 838 of 2019 in the case of M.K. Ranjitsinh v. UOI on 19.04.2021, the SC inter-alia stroke a balance between the protection of the endangered birds as well as the importance of efficient transmission of power. The Court had set up a committee to assess whether an underground powerline is feasible or not in difficult cases and further directed to install diverters pending consideration of the conversion of the overhead cables into underground powerlines in regions with an excess of these birds and to install underground power cables wherever feasible. 

For the purposes of construction of a Road Over Bridge (ROB), it was contended by the Government of West Bengal that there was a need to cut down trees which were more than 150 years old. It was claimed that these are “historical trees” which have irreplaceable value, due to the reason of their non-transferability and that they cannot be transplanted elsewhere. The SC of India on 25.03.2021 took a stern view in the case of Association for Protection of Democratic Rights v. State of West Bengal in Special Leave Petition (Civil) No. 25047 of 2018; and inter-alia constituted a Committee of Experts in order to develop a set of scientific and policy guidelines that shall govern decision making with respect to cutting of trees for such developmental projects.

The Apex Court on 09.12.2020, in the case of Titty v. Range Forest Officer, (2021) 1 SCC 812 inter-alia clarified on the question as to when an offence of capture or possession of wildlife species under the Wildlife (Protection) Act, 1972, can be said to be made out. The Apex Court held that the capture or possession of species belonging to the same genus or otherwise related The issue pertaining to solid waste management on railway stations was highlighted in the case of Saloni Singh & Anr. v. Union of India & Ors., Original Application No. 141/2014; wherein the Principal Bench of NGT, also known as the ‘Green Bench’, on 18.08.2020 inter-alia looked into the matter of non-compliance with the Plastics Waste and Solid Waste Management Rules, as well as the prevention of effluent discharge, water management at railway stations, compartments, and tracks, and the elimination of encroachments that degrade the environment. It specifically instructed the CPCB to consider the process of implementing Railway Action Plans for all-important stations to species specified in the Schedules to the Wildlife Act is not sufficient to constitute an offence under the Wildlife Act. To constitute an offence under the Wildlife Act, it is necessary that the animal in possession or captivity must be the exact genus and species as specified in the Schedules to the Wildlife Act.

The issue pertaining to solid waste management on railway stations was highlighted in the case of Saloni Singh & Anr. v. Union of India & Ors., Original Application No. 141/2014; wherein the Principal Bench of NGT, also known as the ‘Green Bench’, on 18.08.2020 inter-alia looked into the matter of non-compliance with the Plastics Waste and Solid Waste Management Rules, as well as the prevention of effluent discharge, water management at railway stations, compartments, and tracks, and the elimination of encroachments that degrade the environment. It specifically instructed the CPCB to consider the process of implementing Railway Action Plans for all-important stations.

In the case of Shailesh Singh v. Hotel Holiday Regency, Moradabad & Ors., Original Application No. 176/ 2015; the NGT addressed the concern of illegal extraction and contamination of groundwater on 20.07.2020, especially, in regions designated by the Central Ground Water Authority (CGWA) as overexploited, critically exploited, or semi-critically exploited. The Tribunal formed an Expert Committee to look into the procedures that need to be taken to prevent groundwater depletion and to ensure that groundwater is not removed in an unauthorized and exploitative manner. The Tribunal ordered the Ministry of Jal Shakti and the State Government to ensure that the CGWA has the necessary manpower and is operating efficiently in order to ensure long-term groundwater management.

An environmental issue arising out of household use of RO released water was also brought to the fore in the case of Friends through its General Secretary v. Ministry of Water Resources, Original Application. No. 314/2015. The Tribunal aimed to place onus of being responsible on both the government and its citizens including the industrialists. The NGT on 13.07.2020 inter-alia addressed the issue of potable water conservation by preventing waste due to the improper usage of reverse osmosis by RO equipment. It directed the MoEFCC to produce an appropriate notification which must include a mechanism for raising public awareness about the negative effects of RO released water, as well as effective enforcement, such as requiring concerned local bodies to display water quality at regular intervals. ‘Extended Producer Responsibility’ was also imposed on manufacturers for the disposal of cartridges and membranes, requiring them to provide correct labelling on the purifier.

The NGT in the case of Rajiv Narayan & Anr. v. Union of India & Ors., Original Application no. 804/2017, on 01.07.2020 inter-alia dealt with the issue of Hazardous Waste Management. The Tribunal ordered various governmental and administrative bodies to follow the Expert Committees recommendations, which was established in one of its earlier rulings in the case. The Tribunal also directed to make sure that the hazardous waste inventory was updated and double- checked to ensure that it was accurate. In furtherance to this order, the Green Bench had passed a detailed order in the present case on 29.01.2021 by placing its reliance on the judgment passed by the SC in Research Foundation for Science Technology and Natural Resources Policy vs. Union of India (UOI) and Ors., (2005) 10 SCC 510, which inter-alia dealt with the same issue of the alarming situation created by generation and unscientific dumping of hazardous waste resulting in serious and irreversible damage to the environment and public health.

In Re: Scientific Disposal of Bio-Medical Waste arising out of COVID–19 treatment, the NGT on 23.04.2020 addressed the threat posed by COVID–19 waste disposal, and showed its concerns regarding the same for not being dealt with in a scientific manner. It directed the Chief Secretaries of States/ UTs, to monitor the treatment of COVID-19 waste by coordinating with multiple state departments. Further, a National Level Task Force was created, with representatives from multiple ministries, to ensure that the waste treatment is being done in accordance with the rules. The Tribunal had managed to keep a check on the functioning of every state and district level machinery even during the times of Covid.

It was emphatically emphasised by the SC in one its ruling that if the EC was to be ultimately refused, irreparable harm would have already been caused to the environment. Thus, the SC on 01.04.2020, in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., 2020 (5) SCJ 531, upheld the principles of environmental protection and held that an ex post facto environmental clearance or EC is adversative to key doctrines of environmental law such as the ‘Precautionary Principle’ and ‘Sustainable Development’. Emphasising on the relevance of such doctrines, it was observed that the power given to the Government by Section 3(1) of the Environment Protection Act 1986 to undertake measures it deems necessary or expedient must necessarily be only “for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” EC necessitates cautious application of the mind and a comprehensive study into the consequences to be suffered by the environment.

The SC made some positive measures in the case of M.C. Mehta (Stubble Burning & Air Quality) v. UOI, (2020) 7 SCC 530, concerning intense air pollution due to stubble burning in the Delhi-NCR region. The Court on 13.01.2020 noted that not being able to breathe good quality air is an affront to the right to life guaranteed by Article 21 of the Indian Constitution, 1950. It noted that the inadequacy of the state machinery to check air pollution, and inability to sufficiently lift garbage and waste has also majorly contributed to the pollution. It directed the Governments of NCT of Delhi-NCR, Haryana and UP to prepare a scheme to alleviate the need for stubble burning amongst small farmers, and if need be, to provide the necessary farming equipment to them free of cost or on a nominal rental basis. It also directed inter alia that smog towers and anti-smog guns be installed in the Delhi-NCR region and the same shall be updated by filing relevant status reports.

A noteworthy case titled “Sudhir Mishra vs. Ministry of Health and Family Welfare & Ors. in W.P. (C) 2115 of 2015” which has been filed by the Author, being an environmental activist and lawyer is being relentlessly litigated since 2015. During the peak of the first wave of the COVID-19 pandemic, the High Court of Delhi had taken cognizance on the same issue of stubble burning by farmers around Delhi-NCR region and had passed appropriate directions in the said case.  

While the Oxygen Bench was busy in procuring oxygen for its citizens, the Green Bench was busy in saving the environment through which we get the oxygen. India is a country endowed with rich environmental diversity and ecological resources. Even at the international level, India has led the efforts to develop the framework of international environmental law since the earlier times. In various judgments over the course of the last year, India has upheld principles of sustainable development balanced with the needs of a developing country’s economy.

Unlike common notions and misconceptions of varied nature, the Indian courts braved unimaginable odds to deliver speedy environmental justice during the pandemic when the entire country was battered with different covid waves. India’s ecological security has been superb with new priorities in post pandemic world. Trees, water, and disposal of plastics is a major priority for the Modi government and with pain of pandemic’s second wave easing the environmental safeguards will be on top of our national agenda all over again. We can always take pride that as a nation our forest cover has increased many folds since Independence. We have saved our flora and fauna. Our tigers and elephants remain highly protected and the remaining challenges of river pollution, plastics, and increased plantation will be the remaining priorities. It has been rightly postulated by a scholar, “What is the use of a house if you haven’t got a tolerable planet to put it on?” 

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IBC and the development of credit market in India

Financial instruments are in-principle designed to mitigate the risks pertaining to repayment of debt. By mitigating such risks, the regime aims to furnish more assurance among the investors and expanding resources for the beneficiary of borrowers.

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Economic development of a country is channelized by reforms brought in the legal and financial sector. Time and again deliberate reforms are brought in the country with an aim to bring higher economic growth in the country. Major factor contributing to the growth of India’s Index of Economic Freedom since 1990s is attributed to the supportive governmental policies and institution. These policy decisions range from lowering key policy rates, increasing, or decreasing the rate of interests on different types of loans and cash transfers and, various types of fiscal stimulus measures. Annual Financial Statement, 2021-22 considered persistent problems of the banking and financial sector. For instilling confidence in Corporate Bond Market in India and improve secondary market liquidity, an announcement was made regarding the creation of a permanent institutional framework to invest in investment-grade securities.

There is a strong causal relationship between the development of credit market and economic growth. An established credit market effectively relocates the resources aiming higher economic growth and fuels the growth of credit market. Time bound successful resolution of the stressed assets will reinstate the trust of investor, which is paramount in credit market. The present article seeks to discuss the nexus between IBC and development of Credit Market. The article will also draw a comparative analysis between the Pre-IBC and IBC Regime and how the latter has been better fostering the credit market in the Country.

Historically, the laws relating to corporate insolvency and creditor protection proved to be a significant obstacle to the growth of the credit markets in India. The Sick Industrial Companies (Special Provisions) Act, 1985 (‘SICA’), enacted to rescue sick companies, turned out to be inefficient due to delays and other systemic problems leading to its failure. Several committees appointed by the government critiqued and sought to introduce new legislation. The Bankruptcy Law Reform Committee, which issued its report in 2015, that resulted in a concrete change in the form of the Insolvency and Bankruptcy Code, 2016 (the ‘Code’).

The Code signifies a paradigm shift in Indian corporate insolvency law. It involves an approach where creditors lead a time-bound process that is intended to revive and rehabilitate companies and stands in stark contrast to the experience with SICA where most companies were wound up. By taking the process of corporate resolution out of the hands of the company’s board and management, the Code seeks to avoid problems of moral hazard. In terms of the institutional set up, the Code assigns the oversight responsibility to the NCLT (and the NCLAT).

IBC AND CREDIT MARKET

Credit Culture provides a unique blend that keeps the credit method united and forms the crucial foundation of Credit discipline. A county’s credit culture wields a strong influence on the bank’s lending and credit risk management system. Credit culture of a bank is defined by the policies set out by the bank which influences practices and management attitude of the bank. The impugned polices further categorically set out the lending environment and determines the lending behaviour of the bank. The ultimate goal of credit culture is to build a risk management system that in a way foster a good banking system and build right foundation for fostering the economy as well. Considering the complex and extensive banking regime, credit culture plays an indispensable role in the lending institution. IBC fosters an environment where credits can be generated from the domestic market and investments can be drawn from the international market.

Enactment of the Code aimed at enforcing discipline in the country’s credit culture. There is a well planted notion in the defaulter’s mind that in case there is a financial default, Corporate debtor will not be provided with an “automatic-rescue package”. There is a notion of security in the mind of creditors that in case of a default in payment, the dispute does not ends by dragging the debtors to court for the repayment of loan and get struck in the shackles of litigation with unimaginable set of issues. The Resolution proceedings in IBC were designed by bypassing the cumbersome, inefficient, subjective and debtor-friendly model. IBC has ushered a simple and creditor friendly model which has certainty and ensures value maximization of the assets for the benefit of stakeholders in Time bound manner. The present framework ensures that the lenders are paid on time, imbibing a credit culture in the mind of investors. This in turn is a contributing factor in the rise of India’s ranking in Ease of Doing Business Index from lowly 42 in 2014 to 63 in 2019. Thus, making India a favourable destination for Foreign Investment. IBC makes efforts to bring best out of a situation of a financial default with a creditor friendly approach.

INCLUSION OF PERSONAL GUARANTORS AND CORPORATE GUARANTORS

Jurisprudence of any legislation evolves over a period of time and IBC was no exception. Since the inception of the code, it has been exposed to prolific legislative and judicial reforms. The latest and perhaps the most significant development was driven by the Notification dated 15th November 2019, wherein the Central Government enacted part III of the Insolvency and Bankruptcy Code. Thus, bringing Personal Guarantors to Corporate Debtors, Insolvency and Bankruptcy proceedings of Individuals within the sweep of IBC. The notification explicitly mentions that the provisions of part-III of the Code have been enforced as far as they are applicable to the Guarantors. The validity of this notification was upheld by the apex court in the case of Lalit Kumar Jain v. Union of India.

Financial instruments are in-principle designed to mitigate the risks pertaining to repayment of debt. By mitigating such risks, the regime aims to furnish more assurance among the investors and expanding resources for the beneficiary of borrowers. The customary practices involved in such credit enhancement scheme is by providing sureties against the risk to qualifying borrowers. This not only schematize introduction of large-scale lending operations but also introduces new borrowers to the market. Further ensuring a steady flow of liquidity in the market.

As a pre-requisite for banks to provide loans it requires guarantees to be given by the Guarantors. Historically, India is the economy where a large part of Companies (listed/unlisted) are run by the Owners/Promoters. Generally, Banks ensure the guarantee of the Promoters to ensure their skin in the game. In absence of any efficacious forum to enforce personal guarantees which comes like a shadow with insolvency of the corporate debtor for which the guarantee has been given. It was a prolific step to enable rehabilitation and bankruptcy proceedings against personal guarantors. This will allow the creditors to run recovery proceedings against creditors and guarantors simultaneously before the same Adjudicating Authority of the NCLT having territorial jurisdiction.

IBC: SATISFACTORY EXIT ROUTE FOR BUSINESS

Any entity in the market requires freedom at three instances namely, a hassle-free entry, free competition ensuring a level playing field for all the players, and a smooth exit. Entities must have freedom to indulge in the business till they remain resourceful. On accounting several losses, they can vacate the field for newer and more efficient entities. Thus, ensuring the proper allocation and redirection of resources. For proper allocation of resources, it is crucial for a mechanism to exist wherein the defunct firms can leave the space and relocate the idle resources in orderly manner for newer players. At the same time, India being an Economy supporting Start-ups it brings a sense of security within the newly established entities that their withdrawal from the business will not leave them with tons of obligations taking a lifetime to repay. Such a mechanism is envisaged in the form of Insolvency and Bankruptcy Code, 2016. The pre-IBC regime neither had an efficient rescue mechanism nor a satisfactory exit route for business.

CREDITOR-FRIENDLY NATURE

The present insolvency framework has experienced a move from a “Debtor-in-possession” model to “Creditor in Control” model. At the time of admission of insolvency petition, juncture at which the control and management of the defaulting company is transferred to the Committee of Creditors depicts the model of “Creditor in Control”.

Supreme Court in the case of Innovative Industries Ltd. v. ICICI Bank rejected a challenge to the insolvency proceedings mounted by the corporate debtor (Innovative Industries Ltd) and ruled in favour of the Financial Creditor (ICICI Bank), emphasizing the creditor friendly nature of the Code. By rejecting the time barred claim of the debtor, Court not only endorsed the creditor centric approach of the court, but also the time bound structure of the Code. The slant of the court ruling clearly demonstrates the need for a stringent corporate insolvency framework in India, which was answered by enactment of the Code.

The BLRC Report recognized that it is not a company’s ‘divine right’ to control the affairs of the firm. In case of any default in payment of debt, the control of the company must shift from the debtor to creditors. The erstwhile Code promoted a debtor-friendly regime, allowing defaulting debtors to secure a moratorium order and force write-downs on debt repayment. At the same time keeping the management of the defaulting company in the hands of the debtor, frustrating the efforts of the creditors including banks to realize their payment of dues by indulging in serial litigation.

Before the enactment of the Code, the non-adjudicatory forms of dispute resolution suffered high rates of failure. Which in turn resulted into continuing defaults committed by the borrowing entities. The management of the company continued to stay in the hands of the defaulting debtors which in turn became another reason for defaulters to continue to thwart the system. The Code was enacted focusing on finding a resolution and recognition of distressed financial assets which would otherwise face liquidation. This behavioural change has instilled a significantly increased sense of fiscal and credit discipline to better preserve economic value.

INCLUSION OF BANKS

IBC regime brings within its sweep not only guarantors and promoters but also keep a check on the Banks. It acts as an instrument which drives bank to refer specific cases of default against large borrowers for resolution.

With the legislation coming into force, an immediate step was taken by the government for the execution of the same. Subsequently, the Banking Regulation (Amendment) Ordinance, 2017 was promulgated, now passed by Parliament, which introduced new clauses into the Banking Regulation Act, 1949 permitting the RBI to initiate action requiring banks to launch proceedings to resolve bad assets with specifically identified clients. In an attempt to resolve the crisis due to the ballooning Non-Performing Assets of Indian Banks, the Reserve Bank of India directed the concerned banks to initiate insolvency proceedings against such NPAs under the Code. The 12 selected stressed companies constituting 25% of the total NPAs, effectively constituted the test cases for implementation of the Code.

Thereinafter, creditors and on several other occasions corporate debtors had initiated proceedings for the resolution of the corporate debts though the procedure envisaged under the Code. Unpaid loans are only the tip of the iceberg of an ailing banking sector which pose a risk to the nation’s economic growth. The Code was effectively considered a panacea for the NPA problem that had distressed India’s banking sector.

Statistically, the economic survey report, 2020-2021 has reiterated the same view. Data reported by Reserve Bank of India has indicated a hike of 45.4% in the recovery of percentage of claims for scheduled commercial banks through IBC for the financial year 2019-20. This recovery number is the highest as compared to recovery through any other means and under any other legislations. The report further mentions the amount recovered by the scheduled commercial banks in IBC regime was 1.73 Lakh Crore. The amount being more than all the amounts recovered by all the other possible alternative mechanism available for the year 2019-20.

It is noteworthy to mention that inclusion of the Non-Banking Finance Institution is credit positive for India’s banks that are NBFI’s largest lenders. Until the enforcement of the IBC Regime, the only resolution framework for NBFIs was through liquidation.

ADJUDICATION VERSUS RESOLUTION

Within the IBC Regime, both creditors and debtors are empowered to initiate insolvency proceedings. The characteristic attribute of IBC lies to confirm the commercial feasibility of insolvency resolution. The Code also demarcates the commercial aspect from the judicial aspect. In turn it narrows down the role of adjudicating authority to facilitate the process envisaged under the Code rather than adjudicating on merits of the resolution.

The significant changes brought by the Code in the equation of Creditors and Debtors has redefined the fashion in which the credit market functions. The fear of the slipping away of control and management of the firm from the existing promoters and Corporate Debtor to the Committee of Creditors acts as a deterrence in the minds of the corporate debtor. This inevitable consequence of an Insolvency proceedings acts as deterrence mechanism and refrain the firm from operating below the optimum level of efficiency. Additionally, in case of defaults, it encourages the corporate debtor(s) to settle the dispute expeditiously with the creditor at the earliest, preferably outside the court.

There has been catena of instances wherein the corporate debtors have resolved their dispute and repaid the debts immediately on the filing of the application before the concerned National Company Law Tribunal and sometimes even before the application is admitted for further proceedings.

Regarding the withdrawal of application, statistically since the inception of the Code 18,892 applications have been filed before the concerned NCLT. As many as 14,884 cases involving defaults of 5.15 lakh crore were withdrawn by September 2020 before these applications were admitted by the Adjudicating Authority and 897 processes were closed mid-way by December 2020. These statistics were reported by the Economic Survey Report, 2020-2021. It indicates that almost 83% of the cases of financial default by the Corporate Debtor are resolved even before the lis enters the very first stage of CIRP. This accounts for the behavioural shift among the defaulting parties. It is been four years since the inception of the Code, only 7% of the defaults have undergone the entire procedure envisaged under the Code resulting into Liquidation or Resolution.

In account of these statistics a likely option in future for resolving stressed assets is a pre-packaged insolvency resolution process. A proposal regarding the same is floated by the Ministry of Corporate Affairs for the public views. The proposed regime enables the stressed companies to enter into negotiation of restructuring plans with creditors prior to the formal institution of insolvency proceedings. ‘Pre-Packs’ are existing mechanism in U.S. and U.K. jurisdiction ad recently notified in India. Such negotiations result in completion of resolution process quickly and discreetly. Enforcement of a statutory pre-pack regime will go a long way in resolution of stressed assets of the creditors.

WATERFALL MECHANISM WITHIN THE CODE

The conundrum of distribution prescribed within the Code follows a waterfall mechanism which essentially delineates the order in which the liquidation proceeds will be distributed within the different categories of shareholders. As per the principles for effective insolvency and Creditor/Debtor regime by World Bank, Insolvency regime of a country must provide for an equitable treatment of similarly situated creditors.

In a pool of creditors, secured creditors are given the preference in resolving their dues. Secured Credit is an essential part of the credit system, it drives economy and encourage entrepreneurship. Preferring Secured Creditor’s right and their claims and taxation dues promotes secured lending. IBC regime protects the Secured Creditor’s right in liquidation by permitting it to enforce its security (Security against which the credit is extended) by staying out in the liquidation process. Vide section 52 of the Code, the Secured Creditor need not to give up its security to the liquidation estate and can reinforce the same on its own for the realization of its dues. For realization of the credit owed to the Secured Creditors, they have two options provided upon the commencement of the liquidation proceedings. Firstly, either to relinquish the security interest and receive their share after the sale of the assets. Secondly, to stay outside the liquidation proceedings, and to recover the due credit by the exercising the right owed to the Secured Creditor in section 52 of the Code.

CONCLUSION

Taking an insight in the credit industry, India’s insolvency regime continues to achieve and surpass its objectives, assist in strengthening India’s credit environment, and further entrepreneurship in the country.

The Pre-IBC regime discouraged the lenders from lending their assets due to the inefficient resolution system. The lenders were also unsure of their recovery of debt which in a way reduced finance availability. There was a need of legislation which stops the practice of not-paying back the loan and getting away without penalty.

In the case of Binani cement, the NCLAT observed “Resolution of stressed assets” to be the first and foremost objective of the Code. The second being the “Maximization of the value of the assets of the Corporate Debtor”. The third objective being “promoting entrepreneurship, availability of credit and balancing interests”. This order of objective is sacrosanct. The code was enacted to foster the credit regime of the country.

The factors such as, passing the management of the debtor company in the hands of the company has always fostered the credit culture in the country. The Economic Survey Report, 2020-2021 has reiterated these factors as indispensable for bringing confidence within the investors.

IBC envisages certain provisions which ensures protection of the creditors, but not at the cost of causing damage to the debtors. In addition to the creditor centric approach of the Code, it can also be seen to protect debtors against the wilful frivolous petition brought by the Creditors just for the sake of pushing the debtor company in insolvency proceedings. Suspension of IBC for the stipulated duration once in a century crisis is one such move. Additionally, in the light of recently promulgated IBC Amendment Ordinance which came in force on 28th December, 2019 a corporate insolvency resolution plan (CIRP) application can only be filed jointly by 100 allottees under the same real estate project or 10 per cent of the total number of allottees under the same real estate project, whichever is less. The said move was brought in to ensure that creditors or stakeholders who have inordinate leverage over the real estate companies by being at par with the financial Creditors do not abuse the IBC Provisions. The code seeks to strike a balance between the creditors and debtors to foster the credit market in the Country.

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ENFORCEMENT OF ARBITRAL AWARDS AND THE INTRICACIES INVOLVED

Mohd Arham

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INTRODUCTION

The expansion of global trade and commerce in the contemporary era has necessitated the conception of efficient and effective methods of resolution of disputes securing party autonomy at the same time. In some situations, securing an arbitral award or a final judgment from the courts may only be an encounter half won; this is especially true in the Indian context the latest example of the same being the Vodafone arbitration case decided by the permanent court of arbitration, Netherlands recently, as the solicitor general of India Mr. Tushar Mehta advised the government to challenge the arbitral award in a court of law and the government did the same, also a similar scene is created in the dispute between Cairn energy and indian government against the arbital award in favour of Cairn energy by the Permanent Court of arbitration.

We have seen situations where the opposite parties decide to not participate in the arbitral process or abandon it mid-way. The enforcement of these awards where the party is absent is sometimes more complicated than one where the opposite party has participated in the proceedings. In some situations, objections have been made even against costs awarded by the arbitral tribunal or the authority of the tribunal or court, as the case may be. Consequently, the stage of enforcement of an award or decree warrants a high degree of caution.

The modus operandi for enforcement and execution of decrees especially in India is governed by the Code of Civil Procedure, 1908 (“CPC”) on the other hand, that of arbitral awards in India is mainly governed by the Arbitration & Conciliation Act, 1996 (“Act”) as well as the CPC.

The successful party in international commercial arbitration to be honest expects the award to be performed without delay as much time taken in the resolution of dispute is a major reason to opt for arbitration instead of litigation. This is a legit expectation. The idea of arbitration, unlike mediation and most other methods of alternative dispute resolution (ADR), is to arrive at a binding decision on the dispute. Once this decision cross-border in the form of an arbitral award, it is an inherent part of every arbitration agreement that the parties will carry out. To put the spot away from confusion, this is expressly set out in cross-border and institutional rules of arbitration. For instance, the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) said that the arbitral award ‘shall be ultimate and obligatory on the parties, and that ‘the parties take on to bring out the arbitral award without any further delay’.

Such figures as are accessible propose that most arbitral awards are carried out willingly—that is, without the need for enforcement measures in national courts of any country. Nonetheless, broad and reliable statistics about international and domestic arbitration are not readily available for two main reasons: first because arbitration is a private dispute resolution process; and secondly, in any event, there is no particular reason why an arbitral tribunal (or indeed an arbitral institution) should know whether or not an award has been carried out. Unlike a national court of law, an arbitral tribunal majorly has no role to play in the enforcement of its award/decision. Once the award has been rendered to the tribunal, the arbitral tribunal usually has nothing more to do with the dispute, except it, is necessary to make an additional award or to correct or interpret its award for a particular reasonable reason. After making a final arbitral award the work of the arbitral tribunal is formally finished, also is known as functus officio.

When it comes to the Indian context Domestic and foreign awards are enforced in the same manner as a decree of the Indian court. This is true even for consent awards obtained according to a settlement between parties negotiation and mediation you may say. Nonetheless, there is a disparity in the course for enforcement of an arbitral award based on the seat of arbitration. While the enforcement and execution of an award of which the seat is India called (“domestic award”) would be regulated by the provisions of Part I of the act, in international commercial arbitration arbitral awards called (“foreign award”) would be governed by the provisions of Part II of the arbitration and conciliation Act, 1996.

DIFFERENCE BETWEEN RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS

Though there are some minute conceptual differences between recognition of an award and enforcement of an award though not feasible/significant to deal with in length although it’s pertinent to note that recognition of an award is a prerequisite of the enforcement of awards or vice versa used jointly as mentioned in the New York convention on arbitration any potential problem faced in recognition of award similarly comes as a hurdle at the time of enforcement of the arbitral award. The precise distinction, an award may be recognized without being enforced. Though, if it is enforced, then it is essentially acknowledged by the court of law that ultimately orders its enforcement like the Delhi high court granted interim relief to Amazon in the case of reliance v Amazon after acknowledging or recognition of emergency arbitral award delivered by the Singapore international arbitration centre (SIAC). In other words, is between ‘recognition’ and ‘recognition and enforcement’ Enforcement goes a step further than recognition to be more precise.

ENFORCEMENT OF FOREIGN ARBITRAL AWARD UNDER THE NEW YORK CONVENTION

(a) Introduction

The New York Convention replaces the 1927 Geneva Convention as stuck between states that are Parties to both Conventions, and is a considerable development, as it provides for a Simpler and more efficient method of having recognition and enforcement of foreign awards. The conference also replaces the previous 1923 Geneva Protocol as between states that are bound by both, and again constitutes a substantial improvement, because it gives a much wider scope to the validity of arbitration agreements than that given under the earlier convention. Hence, the New York Convention has been rightly eulogized as ‘the single most important pillar on which the edifice of international arbitration rests’ , and as a convention that ‘possibly could lay claim to being the most effectual instance of international Legislation in the entire gamete of commercial law history’. It is for this reason that, for now, many remain unwilling to put up with the possible disturbance that would go with the upgrading of the Convention’s existing text shows the importance of convention globally.

(b) Enforcing foreign awards

Even though the title of the New York Convention provides only for the recognition and Enforcement of ‘foreign arbitral awards, the Convention also deals with the recognition and enforcement of arbitration agreements. In its opening text, the Convention adopts a stunningly global approach: This Convention shall have an effect on the recognition and enforcement of arbitral awards made in the country slightly than the condition where the acknowledgment and enforcement of arbitral awards are requisite, and any kind of differences arising out of dispute whether physically or importantly legally is a thing to watch out for. It shall also apply to arbitral awards not considered domestic awards in the State Where their acknowledgment and enforcement of award are sought.

If this opening Article were to stand without qualification, it would mean that an award Made in any state (even non-signatory to New York Convention) would be Recognized and enforced by any other state that was a party, as long as the award fulfilled the basic circumstances set down in the Convention especially the public policy of a concerning jurisdiction or the due process of law is not followed while writing an award in matters of international as well as domestic arbitration.

(c)Recognition and enforcement under the New York Convention

The new York convention paves way for both recognition and enforcement of awards in the country where convention applies, same scenario with recognition, a state bound by the Convention undertakes to respect the obligatory effect of awards to whom the Convention Applies; so, as has been seen, such awards may be relied upon by way of a solid defense in legal proceedings. Also concerning enforcement, a state that is a party to the Convention undertakes to enforce awards to which the Convention applies following its local procedural rules and regulations. It also undertakes not to impose substantially more difficult conditions, or higher amount or charges, for such enforcement than are obligatory in the enforcement of its domestic awards for fair and equitable treatment of the parties as provided in the Havana convention especially when it comes to/ for investment/interstate arbitration, all collectively work efficiently.

Also when it comes to India there is a big problem underlying when it comes to the enforcement of a foreign award in India though it is a two-stage procedure that is started by filing an execution petition. To begin with, a court would fix whether the award adhered to the requirements of the Act. An arbitral award may be enforced like a decree of a civil court if it is enforceable although the parties and their counsels at this stage needs to be careful concerning various tactics such as objections taken by the opposite party like no attempt is made for pre-arbitration negotiation between the parties, notices before commencement not served, etc, along with requirements like filing original/ authenticated copy of the award and the underlying Arbitration agreement before the court for successfully enforcing the arbitral award in INDIA.

(d) Formalities

The rules and regulations required for having recognition and enforcement of arbitral awards to which The New York Convention applies are easy. The party looking for such recognition and Enforcement is only required to bring the following documents to the relevant court:

(a) The duly signed authentic original award or a duly qualified copy thereof; [and]

(b) The original agreement where arbitration clause was mentioned in article II, or a duly certified copy thereof.

Despite these necessities of Article IV of the New York Convention, courts of law in several Jurisdictions have enforced awards in the absence of an original doc of the arbitration Agreement, or certainly with not any written arbitration clause at all. For example, the Supreme Court of Spain enforced an award of the China International Economic and Trade Arbitration Centre (CIETAC) even though surprisingly it did not identify the parties thereto, Reasoning that the respondent fully participated in the arbitration, therefore proving its Intention to present its dispute with the claimant to arbitration. If the arbitral award and the arbitration agreement are not in the official language of the country in which recognition and enforcement are required, certified translations are required. Once the essential documents have been supplied, the court will grant recognition and enforcement unless one or more of the grounds for denial, listed in the Convention, is Present.

LANDMARK JUDICIAL PRONOUNCEMENTS PERTAINING TO ENFORCEMENT OF ARBITRAL AWARDS & INTRICACIES INVOLVED

In the latest case, the supreme court of India in national agriculture cooperative marketing federation of India v. aliment S.A held that a foreign arbitral award is not enforceable, on the basis that the deal contemplated would have dishonored OR violated the Indian laws and was opposing to the public policy of India which itself an in-depth ground for refusal of an award.

In oil and natural gas corporation v. saw pipes ltd, the supreme court of India while looking at a domestic arbitration award the Hon’ble court held that the domestic arbitral award could be rejected on the ground that the arbitral tribunal violated the Indian law and SC also said that it added patent illegality shape to Renu Sagar case formula.

The SC of India in the landmark case of SBP CO. V. Patel engineering held that the power of appointment is strictly to be a judicial power and the same could not be exercised by the nonjudicial authority or any interested party univocally to prevent biases of arbitral tribunals that’s why court restricted to delegate this authority only to a supreme court or a high court judge, not at the district court level, the court remarked.

In the recent landmark case, Perkins Eastman architects DPC & ANR. V. HSCC {India} the supreme court resolved many queries especially related to impartiality and independence of the arbitrator appointment also said that the court has the power to intervene under S.11 unless the appointment is prima facie valid and the court agreed by the same doesn’t want an overhaul on its power conferred, this will surely affect the government contracts where the arbitration clause are mostly one sided.

Also it was held by the supreme court in the past few recent years that a foreign arbitral award is not liable to be stamped it won’t affect the enforceability of an award .

In the past the Hon’ble Delhi high court in Naval Gent Maritime Ltd v Shivnath Rai Harnarain ltd had held that foreign award would not require registration and can be enforced as a decree of a court of law in India and it won’t be considered as a prerequisite for its enforceability anyhow. Similarly, the Hon’ble Bombay high court observed the same approach at this viewpoint only in the case of Vitol S.A v. Bhatia International Limited.

Also, it’s noteworthy how the seat & venue debate faced a deepening crisis irrespective of the judgment of the supreme court where it settles down some important question of law revolving around the same issue as an international London seated arbitration governed by the English law challenged in Chhattisgarh high court under sec.34 of the arbitration and conciliation act, 1996 further comes into the arena of the supreme court where the supreme court upheld the judgment of the high court and reject the challenge to award in favor of the respondent and it’s indeed a very important and significant judgment after the Bhatia case.

Adding ambiguities or resolve the complexities of this saga is bring it up on a table by the hon’ble supreme court of India in 2019, BGS SGS Soma JV V. NHPC LTD. That the venue of arbitration mentioned in the t arbitration agreement or clause in the contract between the parties is the seat of arbitral proceedings and sort of willfully overrule the case of union of India v. hardy exploration and production [India] inc. where the crisis of seat/ venue debate decided upon the conduct and determination of parties thereof.

In the much-debated case of Amazon.com NV investment holdings LLC V. future coupons (p) Ltd there is a huge dilemma regarding the status of emergency arbitration in India and the interim injunction as prayed by the future group against the emergency arbitration award from Singapore international arbitration center in favor of Amazon against the deal of reliance and future retail group in December 2020 although, on March 18, 2021, the single-judge bench of justice J.R.Midha J. of Delhi high court acknowledged the status of emergency arbitration to some extent by upholding application of the doctrine of a group of companies directs attachment of the future retail group and agreed by the SIAC emergency arbitrator relief which observed that protective rights didn’t amount to control of the petitioner over future retail ltd and consequently didn’t violate the law bench aligns with the same after hectic debate and arguments.

CONCLUSION

On a concluding note, I just wanted to say that the above discussions focus on the problem faced by the parties (mostly foreign) seeking enforcement of international arbitration awards in India and other multiple jurisdictions but one still needs to remain optimistic when it comes to arbitration practice as it’s a fact that a large number of awards are enforced too by the assistance of the national courts in Asia and interestingly India and other Asian countries trying hard to make arbitration more robust and friendly for MNC’S and foreign investors as dispute resolution is a thing to watch out when it comes to economic and investment aspects’ for the companies and others especially investment treaty arbitration.

Also very pleased to see the growth of arbitration in India and the approach of the supreme court of India and other high courts to interfere as little as required to ultimately reduce the burden of pendency of disputes on the judiciary. for instance, the 2019 amendment of the arbitration and conciliation act (section 29A) to reduce the time limit of arbitration proceedings to 12 months and the arbitration tribunal needs to pass an award within 12 months only except in the case of international commercial arbitration for which it was stated that finish proceedings as early as possible also creation of a council of arbitration, centralized body for looking at arbitrators and promotion of arbitration as a way to resolve the dispute and also Indian council of arbitration opens up a dispensation center for arbitration activities in tier 2 cities such as Kanpur last year inaugurated by the chief justice of Allahabad high court and also formal institutionalized New Delhi international arbitration center at par with Mumbai center for international arbitration, Mumbai doing some appreciable work into this domain, thus future for enforcement of arbitral awards as well as arbitration as a practice is bright.

At last, in the contemporary era, it is quite evident within this domain of arbitration that the losing party in arbitration setup usually has more room for tricky negotiation as; such a party may simply carry out the award freely, following its care-full activity to do so. Then, the losing party may use the arbitral award as a source for negotiating a settlement. It is possibly unanticipated that the winning party to the arbitration may settle for less than the amount awarded in comparison to the claim made, but it may be considered better to accept a lesser sum without delay than to face a further challenge or enforcement proceedings to recover the full amount, therefore hopefully Shortly this practice of challenging arbitral award will be reduced to a greater extent by the reforms and propagation made to the practice of arbitration for making it more fruitful, far-reaching and robust to a larger extent.

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‘District judiciary extremely tight-twisted in granting bail’: MP HC issues guidelines

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Observing that the district judiciary is “extremely tight twisted” while granting bail, the Madhya Pradesh High Court in a latest, learned, laudable and landmark judgement titled Zarina Begum vs State of Madhya Pradesh through P.S.E.O.W in M.Cr.C. No. 30933/2020 delivered on 13 May 2021 has issued commendable guidelines to the police authorities and Judicial Magistrates in the state for implementation of guidelines issued in Arnesh Kumar vs State of Bihar & Anr. in Criminal Appeal No. 1277 of 2014 judgement while dealing with the bail applications. It must be mentioned here that in this notable case a single-judge Bench comprising Justice Atul Sreedharan made the significant observation stipulating that, “The hesitancy of the District Judiciary to adhere to the rule of bail and not jail is understandable. There exists a widespread fear amongst judges of the District Judiciary that they may be questioned by the High Court, or complaints may be preferred against them by disgruntled lawyers or litigants whenever they pass orders granting bail which in turn, results in a vigilance enquiry against them.”

While underscoring the importance of independent decision making in District Judiciary, the Bench then also held that, “The importance of having a District Judiciary unfettered and fearless cannot be underscored enough. In a state like Madhya Pradesh with widespread widespread poverty, illiteracy and lack of resources, it is only a free, independent and fearless District Judiciary that can ensure that the end user of the justice system is given justice at the very first level and does not have to move higher up the hierarchy of Courts to get justice.”

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Atul Sreedharan of Madhya Pradesh High Court sets the ball rolling by first and foremost pointing out in para 1 that, “This application has been preferred by the applicant under section 438 Cr.P.C, in Crime No.95/2020 registered at P.S E.O.W Bhopal, District Bhopal, for offences under sections 420,467,468,471,472,474 read with section 120B of IPC.”

Of course, the Bench then observes in para 2 that, “The investigating agency is the Economic Offences Wing, Bhopal (hereinafter referred to as the “EOW”). The applicant is around 58 years of age and is stated to be suffering from various medical ailments including sleep apnoea.”

To put things in perspective, the Bench then observes in para 3 that, “Briefly, the facts of this case are that one Rabiya Bi, the complainant along with others, registered the FIR against the applicant and other co-accused persons. The property in question is a piece of land admeasuring 93.37 acres situated in Village Singarcholi, Bhopal. The owner was one Faiz Mohammad who died leaving behind seven legal heirs. They are Mohammad Ayub, Mohammad Yakub, Hanifa Sultan, Asma Sultan, Sikandar Khan, Qamar Khan and Anwar Khan. Out of the total area of 93.37 acres, 54 acres was demarcated for residential purpose while the remaining, approximately 39 acres was kept aside for agricultural purpose.”

While elaborating on the facts of the case, the Bench then puts forth in para 4 that, “With the exception of Mohammad Yakub, the remaining six legal heirs of Faiz Mohammad jointly executed a power of attorney dated 17/01/1989 and transferred all their rights in the aforesaid property to the power of attorney holder Mohammad Sharif (the then President of Tilak Grah Nirman Society). Similarly, Mohammad Yakub also executed a power of attorney on 05/08/1989 transferring all his rights in the aforesaid property in favour of power of attorney holder Mohammad Sharif. Thus, Mohammad Sharif became the power of attorney holder for six of the legal heirs by way of power of attorney dated 17/01/1989 and also the power of attorney holder for Mohammad Yakub vide power of attorney dated 05/08/1989. On the basis of the combined power of attorney given by the six legal heirs, Mohammad Sharif sold 34 acres of agricultural land through 12 registered sale deeds, executed in favour of various individuals between 04/02/1989 and 26/06/1989. On the basis of the power of attorney executed by Mohammad Yakub, Mohammad Sharif sold the remaining agricultural land of five acres and 64 decimals to Tilak Grah Nirman Samity vide 11 registered sale deeds and the same was executed between 15/11/1994 and 23/11/1994. Besides the power of attorney mentioned hereinabove, all the 7 legal heirs of Faiz Mohammad executed 7 different power of attorneys in favour Mohammad Sharif between February and March 1990 vesting the rights of remaining the 54 acres of land in favour of Mohammad Sharif, the power of attorney holder.”

To say the least, the Bench then states in para 5 that, “On the strength of the 7 power of attorneys executed between February and March 1990, the remaining land of 54 acres was also sold to Tilak Grah Nirman Samiti by 14 registered sale deeds executed in the year 1997 and Tilak Grah Nirman Samiti further sold the land to 1500 persons.”

As we see, the Bench then discloses in para 6 that, “In the FIR dated 07/02/2020, it has been alleged by the complainants that Mohammad Sharif had executed the power of attorney dated 17/01/1989 without the knowledge of the 6 legal heirs or the ancestor of the complainants and altered the remaining paragraphs of the power of attorney and thereby committed forgery.”

While continuing in the same vein, the Bench then elucidates in para 7 stating that, “In the FIR, it was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends between 04/02/1989 to 26/06/1989. The applicant Zarina Begum was one of the beneficiaries. It is for this alleged offence that was committed thirty-one years ago, that the applicant is sought to be arrested today.”

On similar lines, the Bench then points out in para 8 that, “In a connected case arising from the same FIR, being M.Cr.C No. 26706/2020 (Colonel Bhupendra Singh Kharayat Vs. State of Madhya Pradesh), this court had granted the benefit of bail to the 78 year old retired Colonel who was picked up from his home by the investigating agency for the same offence for which the applicant herein is sought to be apprehended. In that case the Colonel did not even get an opportunity to move either this Court of Sessions Court for an anticipatory bail. While passing that order, this court had elaborately discussed the judgement of the Supreme Court in Joginder Kumar versus State of Uttar Pradesh, a landmark judgement of the Supreme Court striking a balance between the personal liberty of an accused and the safety of the society. However, the order passed by this court in Col Bhupendra Singh Kharayat’s case, though being available to the Ld. Court below it has unfortunately dismissed the application for anticipatory bail moved by the applicant only on the basis that the investigation was still in progress. Not even fleetingly has the learned court below even considered the necessity for a custodial interrogation of the applicant for an offence that was committed more than three decades ago.”

Quite forthrightly, the Bench then minces no words to hold in para 9 that, “Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. Hardly ever does the court below examine the requirement for continued incarceration of the accused as an under trial, but for the routine reasons given above. Resultantly, the High Court suffers a deluge of bail cases and its precious time is lost in deciding bail applications instead of deciding civil and criminal appeals.”

Briefly stated, the Bench then lays bare in para 10 that, “The pressure of the pending bail applications is a major factor preventing this Court to spare time for deciding criminal appeals on account of which, several criminal appeals are withdrawn by the appellants on account of the same being rendered infructuous with the appellant having served the entire sentence during the pendency of the appeal or, in case of life imprisonment, the State offers remission to the appellants who have completed fourteen years or more of their sentence, subject to the withdrawal of the criminal appeal. The chart below shows the number of criminal appeals withdrawn from the High Court in the year 2020.

The above figures have been received from the Registry of the High Court. The huge burden of bail matters that has been shifted to the High Court, is on account of the extremely negative view that is being adopted by the District Judiciary in bail matters for which they can hardly be held responsible on account of perception by the judges of the District Judiciary of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”. For a majority of the Judges of the District Judiciary, it is a catchy phrase to be observed in breach rather than in compliance.”

Be it noted, the Bench then observes in para 11 that, “The attention of the District Judiciary must also be drawn to the overcrowding of jails in the State which is also directly associated with the reluctance of the lower courts to grant bail. The inmates occupying these jails are far in excess of the optimum capacity of these jails. A majority of them are undertrials. Even convicts and undertrials are entitled to basic human rights and overcrowded prisons with waning resources, result in the violation of that right. Convicts serving sentence or undertrials awaiting judgment cannot be held in inhuman conditions. The charts below give the figures, which paint a very dismal picture. It is almost as if, basic human rights are not available to undertrials while judgement after judgement laudably mentions that during trial, the presumption is of innocence and not of guilt.

PRISON INMATES AS ON 30 NOVEMBER 2020

S.No Type of Jail Number Undergoing Sentence Undertrials Others Total

1. Central Jails 11 11,182 10,107 96 21,385

2. District Jails 41 2290 13,164 47 15,501

3. Open Jails 06 2 0 0 2

4. Sub-Jails 73 271 7596 3 7870

5. Total 131 13,745 (30.71%) 30,867 (68.96%) 146 (0.33%)

The figures disclose that 68.96% of the prison inmates in the State are undertrial while convicts constitute 30.71%.

OVER-CROWDING OF PRISONS AS ON 30 NOVEMBER 2020

S.No Type of Jail Number Prison Capacity Number of Prisoners Excess Percentage of Overcrowding

1. Central Jails 11 14,060 21,385 7325 52.10%

2. District Jails 41 9485 15,501 6016 63.43%

3. Open Jails 06 94 2 -92

4. SubJails 73 5020 7870 2850 56.77%

5. Total 131 28,659 44,758 16,099 56.17%

The chart above reveals that the total overcrowding in the four categories of jails in the State is 56.17%. Even convicts and under trails are entitled to basic human rights and if the figures are anything to go by, their condition as on date is no better than livestock, herded together for lack of infrastructure and a “not so sensitive” judicial system.”

Quite remarkably, the Bench then waxes eloquent to hold in para 12 that, “The “grundnorm” of bail jurisprudence i.e., “bail and not jail” [State of Rajasthan Vs. Balchand – (1977) 4 SCC 308] appears to have been forgotten. Bail should not be denied by the District Judiciary only for the purpose of ingratiating the raucous blood lust of a society existing on social media, or to pander to public perception. The courts must remember that the presumption is always of innocence and that the denial of bail must be for exceptional reasons, justifiable on the facts and circumstances of the case before it.”

It would be worthwhile to mention here that the Bench then quite aptly states in para 13 that, “This Court feels it essential to refer to the judgement of the Supreme Court in Joginder Kumar’s case where the Supreme Court has extensively discussed the power of the police to affect an arrest. The Supreme Court refers to the third National Police Commission report and extracts therefrom “In India, Third Report of the National Police Commission at p. 32 also suggested: “An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances: (i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims. (ii) The accused is likely to abscond and evade the processes of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ….” (Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Paragraph 20). After reproducing the above from the NPC report, the Supreme Court holds “The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do” (Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Paragraph 20.).”

In context of this case which we are discussing, it would be instructive to mention here that the Bench then makes it clear in para 14 that, “In recent times, if there has been a judgement of the Supreme Court which passionately desired the protection of the individual’s liberty from arbitrary arrest, it is Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, the Supreme Court scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen. The Supreme Court referred to the power of arrest as a “tool of harassment”. In paragraph 5 the Supreme Court observed “Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive”. The Supreme Court went on to hold that a person accused of an offence punishable with imprisonment up to seven years, cannot be arrested by the police on mere prima facie satisfaction of the person having committed such an offence and thereafter, adverting to s. 41 (1) (b) (ii) clause a to e, laid down the requirement under the law in the following words.

“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by subclauses (a) to (e) of clause (1) of Section 41 CrPC.” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraphs 7.1 to 7.3 at page 278 to 279.).

Please read concluding on thedailyguardian.com

The Supreme Court, in paragraph 7.3 has reiterated the spirit of Joginder Kumar Vs. State of Uttar Pradesh, when it says that the police officer before effecting an arrest must question himself with regard to the necessity of arrest and the objective such an arrest seeks to fulfil. In Joginder Kumar, the Supreme Court opined that “The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so”. Having thus illumined the legal position on the power of the police to arrest without a warrant in cases punishable with imprisonment up to seven years, the Supreme Court went on to lay down the duty of the Magistrate, to ascertain the necessity for further incarceration of the accused as an undertrial, in the following words.

“8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.

8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused.

8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused.

8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraphs 8.1 to 8.4 at page 279 to 280).”

Going ahead, the Bench then postulates in para 15 that, “After imposing the checks on the power of the police to arrest, the Supreme Court, in paragraphs 8.1 to 8.4, diverts its attention to the duty of the Magistrate u/s. 167 Cr.P.C. It emphasises that further detention of the accused should not be resorted to in the exercise of remand powers, unless warranted. The Supreme Court has also given serious consideration to the power of remand referring to it as a “solemn function” which must be exercised with concern for liberty of the individual and has also observed that it is presently exercised in a “routine, casual and cavalier manner” in some cases.” Who can deny this unpalatable truth? This is what happens most unfortunately in so many cases!

To be sure, the Bench then points out in para 16 that, “The Supreme Court, in paragraph 9 of the judgement examines s. 41A Cr.P.C in and observes “Another provision i.e. Section 41- A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalized …….. The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraph 9 at page 280). This observation reveals the unequivocal premium that the Supreme Court attaches to an individual’s liberty. It has held that section 41 of the CRPC, prohibits the police from effecting an arrest for an offence where the punishment is not more than seven years imprisonment except for exceptional reasons to be recorded. It has interpreted section 41A CrPC and held that the police shall refrain from making an arrest where the accused, in response to a notice under section 41A appears before the police and joins the investigation, except in exceptional circumstances to be recorded by police.”

Quite pertinently, the Bench then brings out in para 17 that, “Thereafter, in paragraph 11 of the judgement, the Supreme Court issue directions which is law under article 141 of the Constitution. The same are reproduced hereinbelow.

“11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41- A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraph 11 to 11.8 at page 281).

the directions given by the Supreme Court in Arnesh Kumar’s case are extremely elaborate and has taken into consideration, the liberty of the individual accused of offences where the punishment is not more than seven years imprisonment.”

Quite rightly, the Bench then puts forth with regret in para 18 that, “This judgement was passed by the Supreme Court in the year 2014. Yet, after the passage of nearly 7 years, the directions passed are observed more in breach than in compliance. In order to ensure that the benevolent effect of the judgement is not restricted only to those offences arising from matrimonial cases u/s. 498-A and s. 406 IPC, the Supreme Court laid down in the following words that “We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498- A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraph 12 at page 281).”

Quite rightly, the Bench then while striking the right chord in para 19 holds that, “The underlying concern of the Supreme Court regarding the approach of the Courts below in bail matters was reflected yet again in Dataram Singh Vs. State of Uttar Pradesh and Another (2018) 3 SCC 22, where a two-judge bench of the Supreme Court, in the very first paragraph observed, “……A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society” ( Dataram Singh Vs. State of UP and Another – (2018) 3 SCC 22, at paragraph 1, page 22).”

Notably, the Bench then hastens to add in para 20 that, “More recently, in Arnab Goswami’s case, the Supreme Court once again focussed its attention on liberty of the individual. The Supreme Court emphasised on the role of the District Judiciary and the High Court to be more proactive when it comes to dealing with cases of personal liberty rather than dealing with it in a mundane manner. Paragraph 70 of the judgement deserves to be reproduced in full in which the Supreme Court observes, “More than four decades ago, in a celebrated judgment in State of Rajasthan v. Balchand [State of Rajasthan v. Balchand, (1977) 4 SCC 308 : 1977 SCC (Cri) 594], Krishna Iyer, J. pithily reminded us that the basic rule of our criminal justice system is “bail, not jail” [ These words of Krishna Iyer, J. are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are : State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2) and Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] . The High Courts and courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the “subordinate judiciary”. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground—in the jails and police stations where human dignity has no protector. As Judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the “solemn expression of the humaneness of the justice system” [ Arghya Sengupta and Ritvika Sharma, ‘Saharashri and the Supremes’, (The Wire, 23-6-2015) available at ] . Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard”(Arnab Manoranjan Goswami Vs. State of Maharashtra – (2021) 2 SCC 427 – paragraph 70 at page 473) (emphasis added). The portions bearing added emphasis, reveals the importance given by the Supreme Court to the District Judiciary in bail matters. It gently disapproves of the District Judiciary being referred to as the Subordinate Judiciary and goes on the say that the District Judiciary is only administratively subordinate to the High Court but on the judicial side, it is just as responsible for upholding the liberty of the average citizen as is the High Court and the Supreme Court.”

While taking the right stand, the Bench then makes it clear in para 21 that, “It is all very well to reproduce the benevolent observations of the Supreme Court in Arnab Goswami’s case while glossing over the reality that exists on the ground relating to the District Judiciary. The District Judiciary is the bulwark against executive excess. It is the first line of defence, and for a large number of the citizens, perhaps the last. The existence of the rule of law in the state is reflected by the responsiveness of the District Judiciary to matters relating to personal liberty and freedom of the individual. The hesitancy of the District Judiciary to adhere to the rule of ‘bail and not jail’ is understandable. There exists a widespread fear amongst judges of the District Judiciary that they may be questioned by the High Court, or complaints may be preferred against them by disgruntled lawyers or litigants whenever they pass orders granting bail which in turn, results in a vigilance enquiry against them.”

Practically speaking, the Bench then candidly concedes in para 22 that, “Whenever a judge of the District Judiciary is proceeded against by the vigilance on account of a bail order or an acquittal in a high-profile case, it results in a domino effect where other judges of the District Judiciary feel intimidated and consider it practical to dismiss bail applications and enter convictions and remain safe from imputations of dishonesty and the associated enquiry that follows it. Even an inquiry by the High Court in which the Judge may eventually be exonerated, which may seem innocuous for those of us sitting in the High Court, has a debilitating effect on the psyche of the Judge in the District Judiciary. The fact that there has been an inquiry against a Judge for granting bail or an acquittal sees a fall in his image amongst his peers. Resultantly, they clam up and refuse bail in even the most trivial of offences. The High Court sees numerous cases coming up before it, concerned with the minor offences which are triable by the Court of the JMFC.”

In addition, the Bench then further rightly adds in para 23 that, “The combined effect of some members of the bar and disgruntled litigants, ever ready to complain against judges by anonymous communication coupled at times with an overzealous District Judge (Vigilance and Inspection), out to prove the worth of his existence, whose overbearing presence and attitude of selectively examining the orders passed by the Judges of the District Judiciary relating to anticipatory bail, regular bail and acquittals (especially in those cases relating to heinous offences or cases which acquire prominence in the print, electronic and social media), has a demoralising effect on the Judges of the District Judiciary for whom such action is the proverbial sword of Damocles, perpetually hanging over their heads, always threatening to drop.”

On a practical note, the Bench then puts forth in para 24 that, “The office of the District Judge (Vigilance and Training) continues to have a debilitating effect on independence and individuality of the judges of the District Judiciary. The post is a surplus appendage, akin to a vestigial organ in the body of the Judiciary in the State of Madhya Pradesh. The post is occupied by a Judge, senior enough to occupy the post of the District Judge. His duties involve calling at random, the judgements and orders passed by the Judges of the District Judiciary and examine them for quality and integrity. A position of immense power and influence over the Judges of the District Judiciary. As it is, the District Judge constantly reviews the work of those under him and gives his or her assessment in the ACR’s of the Judges who are working under him. Sometimes, the post can be occupied by an individual who to prove his preeminent importance to the High Court, as a conduit of information, can assess the orders of the Judges and comment upon the same being passed with a dishonest motive only because in his or her opinion, the order is bad in law. This demotivates the Judges of the District Judiciary, especially in criminal cases from doing justice and may convict in the absence or inadequacy of evidence and dismiss bail applications even in cases in which were fit to be granted bail. It would not render the District Judiciary less efficient if the post is done away for good. Instances of judges of the District Judiciary being proceeded against by the High Court on the administrative side for discretion exercised in bail matters would demoralise others who would consider it safest to dismiss bail applications as proof of their integrity.”

Furthermore, the Bench then adds in para 25 that, “An adverse report from the District Judge (Vigilance and Inspection) can be sufficient to initiate an enquiry by this Court against the Judge in question. The post of the District Judge (Vigilance and Inspection) is a surplusage with potential to cow down Judges of the District Judiciary and gives a sublime message to them to dismiss bail applications and enjoy a career in the District Judiciary without facing any inquiry. The continued existence of the post of District Judge (Vigilance and Inspection) is questionable. It belies reason why the orders passed by a Judge of the District Judiciary must be scrutinised by his peer in a purely administrative capacity, for quality or otherwise, when the District Judge scrutinises them every year while preparing the ACR of the Judges. Besides, if a party is aggrieved by an order, it has the right to challenge the order before the Court higher in the judicial hierarchy.”

Interestingly enough, while referring to an American case law, the Bench then envisages in para 26 that, “Justice William O. Douglas, a former Judge of the U.S Supreme Court, in his dissenting opinion in Stephen S. Chandler V. Judicial Council of the Tenth Circuit of the United States observed “No matter how strong an individual Judge’s spine, the threat of punishment – the greatest peril to judicial independence – would project as dark a shadow whether cast by political strangers or by judicial colleagues. A federal Judge must be independent of every other Judge…. Neither one alone nor any number banded together can act as censor and place sanctions on him. It is vital to preserve the opportunities for judicial individualism” (Extracted from C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee – (1995) 5 SCC 457 at page 469) (emphasis added).”

While citing a relevant case law, the Bench then states in para 27 that, “In Ramesh Chander Singh Vs. High Court of Allahabad (2007) 4 SCC 247, a judge of the District Judiciary in Uttar Pradesh was imposed the punishment of withholding of two increments with cumulative effect and being reduced in rank from Additional District and Sessions judge to Civil Judge (Senior Division). His alleged misconduct was passing a judicial order granting bail to an accused in a double murder case after taking illegal gratification from the accused. The Judge who conducted the enquiry against the Petitioner in this case disbelieved the allegation of illegal gratification and held the same to be not proved. However, observations were made that the order was passed with an oblique motive, insufficient grounds and extraneous consideration. The enquiry report does not reveal as to what these oblique motive, insufficient ground and extraneous considerations were. Two other co-accused persons were already granted bail by the High Court. He failed before the High Court in challenging the decision of the full Court. On appeal to the Supreme Court, it was held “…….. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently” (Ramesh Chander Singh Vs. High Court of Allahabad – (2007) 4 SCC 247 – Paragraph 11 at page 254). The Supreme Court further held “This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts …” (Ramesh Chander Singh Vs. High Court of Allahabad – (2007) 4 SCC 247 – Paragraph 12 at page 255). Needless to state, the Supreme Court set aside the order of the full Court and reinstated the Petitioner on the post of AD&SJ with full consequential benefits.”

Quite relevantly, the Bench then states in para 28 that, “More recently, in Krishna Prasad Verma Vs. State of Bihar ((2019) 10 SCC 640), a judge of the District Judiciary was proceeded against for misconduct. The charge against him was of having granted bail to an accused in a case under the NDPS where an earlier application of another accused was dismissed by the High Court. The other charge against him was having closed the evidence of the prosecution and thereby preventing it from producing evidence against the accused which led to his acquittal. As regards the charge of having overlooked the previous order passed by the High Court, the Supreme Court held that it could at the most be held as an act of negligence on the part of the judge. As regards closing of the prosecution’s evidence prematurely, the Supreme Court held from the record of the case that the prosecution was granted about 18 opportunities of producing the witnesses and it was only thereafter that the evidence was closed. The Supreme Court, while setting aside the punishment imposed upon the petitioner, underscored the importance of the independence of the District Judiciary. In paragraph 1, the Supreme Court held “In a country, which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District Judiciary” (Krishna Prasad Verma Vs. State of Bihar – (2019) 10 SCC 640 – Paragraph 1 at page 640). Emphasizing upon the importance of the District Judiciary as the first and perhaps the last resort for a large part of our population, which is unable to approach the High Court or the Supreme Court on account of their poverty or lack of resources, the Supreme Court held “Most litigants only come in contact with the District Judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever” (Krishna Prasad Verma Vs. State of Bihar – (2019) 10 SCC 640 – Paragraph 2 at page 640). It further held that where the order passed by a judge of the District Judiciary is incorrect or against the settled law, the same should not lead to administrative action against Judge, unless from the record of the case and based upon evidence, malice, misconduct and corrupt practice is evident.”

Quite strikingly, the Bench then commendably adds in para 29 that, “The importance of having a District Judiciary unfettered and fearless cannot be underscored enough. In a state like Madhya Pradesh with widespread poverty, illiteracy and lack of resources, it is only a free, independent and fearless District Judiciary that can ensure that the end user of the justice system is given justice at the very first level and does not have to move higher up the hierarchy of Courts to get justice.”

Also, quite significantly, the Bench then also seeks to make it clear in para 30 that, “The court hopes that the High Court may, on the administrative side, re-assess the necessity for the post of District Judge (vigilance and inspection). The existing system by which complaints against judges of the District Judiciary are dealt with are adequately sufficient in order to ensure that the demands of a person aggrieved by the conduct of a judge is suitably addressed and also ensures that the judge of the District Judiciary is adequately protected from frivolous complaints from disgruntled and maliciously motivated persons.”

More significantly, the Bench then seeks to clarify in para 31 that, “In order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case is scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh, this court considers it essential to pass certain directions.

DIRECTIONS TO THE POLICE

31.1 Where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.

31.2 Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.

31.3 The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.

31.4 Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.

31.5 Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.

31.6 Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.

31.7 If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.”

No less significant is what is then envisaged in para 32 that,

“DIRECTIONS TO THE JUDICIAL MAGISTRATES:-

32.1 The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).

32.2 The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.

32.3 If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.

32.4 It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.

32.5 The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.

32.6 Failure on the part of the Magistrate to perform as directed hereinabove, may see the initiation of proceedings against such Magistrate on the administrative side.”

While taking the practical approach, the Bench then observes in para 33 that, “As regards the grant of bail in offences involving punishment of more than seven years imprisonment, there can be no universal rule of thumb. It would defeat the very purpose of bail law, if bail were to be rejected only on account of the offence being heinous in nature. Weather an offence is heinous in nature is a matter of perception but, it would be reasonable to include in its ambit and scope such offences, which shock the conscience of a reasonable person. Again, bail cannot be denied merely because the allegations relate to the commission of a heinous offence. The nature of the evidence, the antecedents of the offender, the circumstances in which the offence was committed etc., are also to be considered. However, what the Courts must consciously exclude is the cacophony of hyper opinionated and unmoderated voices on social, print and electronic media. Public perception must never be a factor while deciding a bail application. At the same time, prudent reasons ought to be briefly given to reflect the mind of the Court while deciding the application for bail.”

Adding still more, the Bench then also holds in para 34 that, “While considering an application for bail, the following may be kept in mind:

34A. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?

34B. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?

34C. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?

34D. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?

34E. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?

34F. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?”

In context to what is stated in para 34, the Bench then adds in para 35 that, “The above considerations should be applied in a reasonable and judicious manner based upon the material on record. They, however, must not be applied in a pedantic manner only to deny the benefit of bail to the accused. Also, it must be borne in mind that the said considerations are not glossed over in order to grant the benefit of bail. Whichever way the application is decided, unless it is withdrawn, reasons ought to be given to reflect the prima facie appreciation of the material for or against the accused.”

For the sake of clarity, the Bench then points out in para 36 that, “The above notwithstanding, no undertrial ought to be kept in judicial custody, inordinately. There may be several factors delaying the trial which may not be attributable to the accused. The production and examination of prosecution witnesses is where the delay is maximum. In such cases, even if there is a perceived handicap in releasing the accused on bail, it may still be considered by placing stringent condition like higher quantum of personal bond and surety, to appearing before the Police periodically and registering his presence and in extreme cases, even asking the under trial to remove himself from the municipal limits of the district where the trial is taking place and the witnesses are situated. Of course, no rule of thumb can ever be laid down as an indelible proposition which must be followed in every case of bail and the discretion must be left to the Court.”

On an advisory note, the Bench then observes in para 37 that, “The District Judiciary must create an environment where bail applications can be decided at the first tier of the justice system itself. There is no legislative provision that mandates the disposal of a bail application within a fixed period of time. However, the ends of justice do demand that it be so done in the shortest possible time. However, it must also be borne in mind that many a litigant may not have the wherewithal of approaching the next forum available within the shortest possible time. This Court has seen applications for bail in offences triable by the Court of Magistrate, coming for the first time after the accused has completed more than half the period of the total sentence.”

Adding more, it is then stated in para 38 that, “Therefore, the District Judiciary must instil confidence in the bar and the litigants alike in bail matters. Where, the Court is unable to grant bail because the investigation is still in process, the applicant can be asked if he wants to withdraw the application with liberty to file afresh after the charge sheet is filed. In some cases, certain documents may be necessary to effectively decide the application, it may be better to adjourn the proceeding giving short dates, rather than dismiss the application on merits forcing the applicant approach the High Court for bail. In other words, the endeavour must be to see that justice is done at the level of the District Court itself. The applicant may only be too willing to try his luck a second time before the District Courts itself as along as his application is not dismissed on merits. Such an option must be given to the applicant.”

To be sure, the Bench then notes in para 39 that, “The office is requested to send a copy of this order to the Director General of Police, who is further requested to circulate the same to all the districts and disseminate to the lowest functionary, the directions given by this Court in paragraph 31.1 to 31.7 are complied with and, if in any case where such compliance is found wanting after 01/07/2021, this court shall proceed to try the policemen acting in violation of this order for contempt of this Court’s order.”

What’s more, the Bench then also adds in para 40 that, “The office is requested to send a copy of this order to all the District Judges, who are further requested to circulate the same to all the Judicial Magistrates under them to ensure compliance with the directions given by this Court in paragraph 32.1 to 32.6 and any case where such compliance is found wanting after 01/07/2021, they may be proceeded on the administrative side.”

Finally, it is then held in para 41 that, “On the merits of this case, for what has been discussed and observed by this Court herein above, the application is allowed, and it is directed that the applicant shall be forthwith enlarged on bail upon arrest by the investigating officer, upon furnishing a personal bond in the sum of Rs.10,000/- (Rupees ten Thousand only) with one solvent surety in the like amount to the satisfaction of the arresting officer. Certified copy as per rules.”

No doubt, it is a very learned, brilliant and balanced judgment which must be adhered to in totality. Justice Atul Sreedharan has painstakingly elaborated on each and every aspect very rightly and has sought to make it absolutely clear that the district judiciary is extremely tight-twisted in granting bail and elaborated the reasons also for it and suggested the right approach also which must always be followed. The directions which it has issued to police and judicial magistrates for implementing the Arnesh Kumar case guidelines must be implemented in totality. There can be no denying it!

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