Elected Representatives Cannot Have A Right To Claim That A Particular Employee Be Posted At A Particular Station: HP HC

      It is most heartening, most reassuring and most refreshing to learn that the Himachal Pradesh High Court most recently on March 18, 2020 in a latest, landmark and extremely laudable judgment titled Sunita Devi Vs. State of H.P. & Ors. in CWP No. 1978 of 2019 has held in no uncertain terms that elected representatives cannot have a right to claim that a particular employee be posted at a particular station and that the choice is to be made by administrative head and not by the legislators. All the legislators must pay heed to what has been held by the Himachal Pradesh High Court so explicitly, so elegantly and so effectively that leaves no room for doubt whatsoever!

To start with, the ball is set rolling in para 1 of this judgment authored by Justice Tarlok Singh Chauhan for himself and Justice Chander Bhusan Barowalia by first and foremost observing in para 1 that, “This Court of late, more especially, after the closure of the H.P. Administrative Tribunal is flooded with the petitions in which the employees challenge the orders of their transfers.”

Quite alarmingly, it is then observed in para 2 that, “Despite the law on the subject being well settled, yet we find the same is being violated with impunity either by the political executive or by the administrative authority, constraining the employees to have initially approached the Administrative Tribunal and on its closure, this Court unnecessarily clogging its docket.”

Significantly, it is then very rightly pointed out in para 3 that, “It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to “proper place”. It is for the administration to take appropriate decision.”

What’s more, it is then also pertinently mentioned in para 4 that, “Even the administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redressal but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. Even if the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by mala fides or made in violation of any statutory provision. The government is the best judge to decide how to distribute and utilize the services of its employees.”

While adding a caveat, it is then observed in para 5 that, “However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary.”

Be it noted, it is then envisaged in para 6 that, “Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the court is competent to go into the matter to find out the real foundation of transfer. The court is competent to ascertain whether the order of transfer passed is bonafide or as a measure of punishment.”

What cannot be missed out here is what is then stated in para 31 that, “In the instant case, there was no independent decision taken by the Administrative Head rather there was no scope left for the said purpose and, therefore, the decision has been rendered vulnerable as being influenced by the proposal and recommendations made by the Minister concerned.”

As a corollary, it is then stated in para 32 that, “As observed by this Court, the Members of the Legislative Assembly or the Minister concerned have right to make a recommendations but these recommendations cannot be taken to be the final word. The underline principle for transfer is public interest or administrative exigency, which is conspicuously absent in the present case.”

To be sure, it is then held in para 33 to which the elected representatives must pay heed that, “As held by this Court in Amir Chand’s case (supra), we live in a democracy and our elected representatives under the Constitution are to work in the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. It is they (Administrative Heads) who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politicians cannot don the role of administration.”

Going one step ahead, the next para 34 then envisages that, “It was further held that the elected representatives cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by administrative head i.e. Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.”

Not stopping here, it is then held in para 35 that, “Lastly, it is held that whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MLA, then before ordering the transfer, the views of the administrative department must be ascertained and only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative department, meaning thereby the views of the administrative department have essentially to be sought in the matters of transfer. What follows is that the views of the administrative department must reflect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative exigency and/or public interest or that the transfer of employee is necessary for the effective utilization of his/her services.”

Truth be told, it is then conceded in para 36 that, “Adverting to the present case the order of transfer cannot withstand judicial scrutiny as the same does not show that the petitioner has been transferred on account of administrative exigency and/or public interest. The record  further does not reveal that the transfer has been effected for the effective utilization of the services of the petitioner and she has been transferred merely on the basis of the recommendations made by the political executive.”

Needless to say, it is then ostensibly concluded after analyzing everything in para 37 that, “In the given facts and circumstances of the case, the action of the respondents cannot be countenanced and sustained. Accordingly, the order dated 19.08.2019 whereby the petitioner has been ordered to be transferred from Forest Beat Gummer, Block Jawalamukhi Range Jawalamukhi under Forest Division Dehra to Forest Beat Kotla, Block Kotla, Range Dadasiba under Forest Division Dehra is quashed and set aside, leaving the parties to bear their own costs.”

Finally, before parting, it is then observed in the last para 38 that, “However, before parting, it needs to be observed that since the docket of this Court is full of cases relating to transfers of employees, the Government would be well advised to implement online transfer in its Departments, Boards, Corporations etc. having over 500 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.”

On the whole, it is a very well written, well reasoned and well justified judgment which must be read in its entirety! Para 32 to Para 35 are the most critical part which makes the whole picture very clear on this vexed issue as has been already discussed above! All the elected representatives must always adhere to this in letter and spirit as has been very rightly held by the two Judge Bench of Himachal Pradesh High Court and refrain from interfering as has been directed also and due importance must be given to the administrative department in matters of transfer!

Sanjeev Sirohi

Guns Licensed For Self Protection Cannot Be Used For Celebratory Firing: Supreme Court

    Without mincing any words and without pulling back any punches, a three Judge Bench of the Supreme Court headed by Chief Justice of India (CJI) SA Bobde and comprising also of Justice BR Gavai and Justice Surya Kant most recently on March 18, 2020 in a notable judgment titled Bhagwan Singh vs State of Uttarakhand in Criminal Appeal No. 407 of 2020 [Arising out of Special Leave Petition (Crl.) No. 656 of 2018 have sought to send a firm and final message to all the people in our country that guns licensed for self protection cannot be used for celebratory firings and those who still dare to do it would have to pay a heavy cost for doing so! It also expressed its serious concerns on the increasing number of such incidents in our country. There has to be zero tolerance for all such incidents of celebratory firings in which all rules are broken with impunity and the lives of innocents are endangered most shamelessly and most carelessly!

To start with, the ball is set rolling in para 2 of this noteworthy judgment wherein it is observed that, “This Criminal Appeal is directed against the judgment dated 26th July, 2017 passed by the High Court of Uttarakhand whereby the appellant’s criminal appeal against the judgment and order dated 11th/12th July, 2013 rendered by Learned Sessions Judge, Bageshwar convicting the appellant under Sections 302 and 307 of Indian Penal Code (for short, ‘IPC’) and sentencing him to undergo life imprisonment (under Section 302, IPC) and 5 years’ rigorous imprisonment (under Section 307, IPC) along with a fine of Rs. 20,000/- in default whereof he was directed to undergo 6 months additional rigorous imprisonment was dismissed. The appellant was, however, acquitted for offence punishable under Section 25 of the Arms Act for want of the requisite sanction.”

Needless to say, it is then stated in para 3 that, “It may be mentioned at the outset that notice of the special leave petition was issued on the limited question to determine the nature of offence committed by the appellant i.e. whether it falls under the ambit of Section 302 or 304 of IPC. To determine this question the facts may be briefly noted.”

To recapitulate, while narrating the facts it is then observed in para 4 that, “On 21st April, 2007, the marriage ceremony of the Appellant’s son was taking place at village Dafaut, Uttarakhand, when around 5:30 pm as soon as the marriage procession reached the Appellant’s courtyard – he suddenly fired celebratory gunshots. The pellets struck 5 persons standing in the courtyard namely, Smt. Anita W/o Chanchal Singh, Khushal Singh @ Sonu, Ummed Singh (P.W.6), Smt. Vimla W/o Devendra Singh (P.W.5) and Smt. Vimla W/o Bhupal Singh (P.W.7). The injured were taken to the hospital where two of them – Anita and Khushal Singh @ Sonu succumbed to their injuries. Later at about 8:40 pm, Dharam Singh (P.W.3) filed an FIR at PS Kothwali, Bageshwar, narrating in full detail the incident of which he himself was a witness.”

Be it noted, it is then noted in para 5 that, “After the conclusion of investigation, initially a charge sheet under Section 304, IPC was filed but later on the appellant was charged under Sections 302 and 307, IPC along with Section 25 of the Arms Act.”

Of course, it is then brought out in para 6 that, “The Ld. Sessions Judge held the appellant guilty of offences under Sections 302 and 307, IPC based on testimonies of eye witnesses and injured witnesses. It was noted that Appellant fired shots from his son’s licensed gun causing fatal injuries to Smt. Anita and Khushal Singh and injuring three others. He was consequently sentenced in the manner as briefly noticed in the opening paragraph of the order.”

What follows next is then stated in para 7 that, “The appellant went in appeal before the High Court. His primary contention was that he had no intention to cause anyone’s death. He stated that the firing was by a ball with which some children were playing. The ball struck against the gun in his hand and led to the firing of shots. The occurrence was an admitted fact and the only plea taken was that it being a case of accidental firing, Section 300 punishable under Section 302, IPC was not attracted.” But the High Court rejected his plea as pointed out in para 8.

As it turned out, the Bench then points out in para 15 that, “The trial court as well as the High Court have proceeded on the premise that the appellant’s act by firing from the gun which was pointed towards the roof was as bad as firing into a crowd of persons so he ought to have known that his act of gun-shot firing was so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death.”

More significantly, it is then held in para 16 that, “The facts and circumstances of the instant case, however, do not permit to draw such a conclusion. We have already rejected the prosecution version to the extent that the appellant aimed at Smt. Anita and then fired the shot(s). The evidence on record contrarily shows that the appellant aimed the gun towards the roof and then fired. It was an unfortunate case of mis-firing. The appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gun-shot injuries to the nearby persons even if a single shot was fired. The appellant is, thus, guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to ‘culpable homicide’ within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC.”

Most significantly, it is then underscored in para 17 that, “Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for self-protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents. Such like misuse of fire arms convert a happy event to a pall of gloom. Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

To buttress its point further, we then see that the Bench observes in para 18 that, “A somewhat, similar situation arose in Kunwar Pal (Supra) wherein this Court held as under:

“12. We find that the intention of the appellant to kill the deceased, if any, has not been proved beyond a reasonable doubt and in any case the appellant is entitled to the benefit of doubt which is prominent in this case. It is not possible therefore to sustain the sentence under Section 304 Part I IPC, which requires that the act by which death is caused, must be done with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. Though it is not possible to attribute intention it is equally not possible to hold that the act was done without the knowledge that it is likely to cause death. Everybody, who carries a gun with live cartridges and even others know that firing a gun and that too in the presence of several people is an act, is likely to cause death, as indeed it did. Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies.”

On balance, it is then held by the Bench in para 19 that, “Resultantly, we hold that the appellant had the requisite knowledge essential for constituting the offence of ‘culpable homicide’ under Section 299 and punishable under Section 304 Part-2 of IPC. He is thus held guilty under Section 304 Part-2 and not under Section 302 of IPC. On the same analogy, the appellant is liable to be punished for ‘attempt to commit culpable homicide’ not amounting to murder under Section 308, in place of Section 307 of IPC for the injuries caused to the other three victims. To this extent, the appellant’s contentions merit acceptance.”

Last but not the least, it is then held in para 20 that, “For the above-stated reasons, the appeal is allowed in part. The conviction of the appellant under Section 302, IPC is modified to Section 304 Part-2, IPC and that under Section 307, IPC is altered to Section 308, IPC. As a necessary corollary, the sentence of life imprisonment awarded to the appellant for committing the offence under Section 302 IPC, is reduced to 10 years’ rigorous imprisonment and the sentence awarded to him under Section 307, IPC is substituted with Section 308 IPC, without any alteration in the fine imposed by the trial court.”

No doubt, the time is ripe now to enact the strictest law which completely prohibits celebratory firing and the jail term for it must be increased from 10 to 30 or at least 20 years and in addition a heavy fine should also be imposed on those indulging in the same! The Apex Court Bench headed by CJI Sharad A Bobde have sent the simple and straight message to one and all that if you indulge in celebratory firing and break the law then you are bound to face the punishment as envisaged right now under our penal laws and be behind bars for 10 years! Very rightly so!

To sum up, one hopes earnestly that now strictest law is enacted by Parliament on this at the earliest so that innocent and invaluable lives are saved from being lost forever! It brooks no more delay anymore now! All that is required is just adequate political will! Nothing else is required. We have lost many invaluable lives for no fault of theirs on account of this celebratory firing which deserves zero tolerance yet we see that the punishment level is still the same! It goes without saying that more than the fine it is the increase in jail term that will deter people from indulging in the same!

Sanjeev Sirohi

SC Directs Navy To Grant Permanent Commission For Serving Women SSC Officers

In continuation of the convincing, courageous and commendable judgment delivered by the same Division Bench of Apex Court comprising of Justice Dr DF Chandrachud and Justice Ajay Rastogi on February 17, 2020 that favoured the extension of permanent commission for women in the armed forces so that gender equality is implemented in reality in the case titled The Secretary, Ministry of Defence vs Babita Puniya and others in Civil Appeal Nos 9367-9369 of 2011 with Civil Appeal Nos 1127-1128 of 2013 and with Civil Appeal No 1210 of 2020, we see once again that these same Judges have now in yet another case titled Union of India & Ors vs Lt Cdr Annie Nagaraja & Ors in Civil Appeal Nos 2182-87 of 2020 @ SLP (C) Nos. 30791-96 of 2015 along with others very clearly, convincingly and commendably held that serving women Short Service Commission Officers in Indian Navy were entitled to Permanent Commission at par with their male counterparts. We thus see that the Apex Court Bench thus upheld the 2015 Delhi High Court verdict which had upheld women officer’s claim in this regard! Very rightly so!

To be sure, women were not commissioned in the Navy till the issuance of notification dated 9th October 1991, whereby for the first time, the power under the enabling provision under Section 9(2) of the Navy Act was exercised to lay down that women would also be eligible for appointment as officers in the Indian Navy. But the induction of women was confined to four branches namely Logistics, Law, ATC and Education. It was also stated by the Ministry then that policy guidelines regarding permanent commission for women will be laid down in 1997. But such guidelines were not laid down until 2008. On 26th September 2008, the Ministry for the first time took a decision to grant permanent commission to SSC women officers in all the three forces. Regulation 203 of Chapter IX of the Indian Navy Act, 1957 puts no restriction to the grant of permanent commission either gender wise or category wise. But this offer was restricted to certain categories and was also to operate prospectively. As per this policy, only women officers inducted after January 2009 were eligible for permanent commission, that too only in the branches of education, law and naval architecture. The cadre of logistics and ATC which were opened to women for SSC in 1991 were excluded.

Before proceeding ahead, it would be instructive to now mention that the Delhi High Court Division Bench comprising of Justice Kailash Gambhir and Justice Najmi Wazri in Annie Nagaraja and others vs Union of India and others in W.P. (C) 7336/2010, CM Nos. 9348/2012 & 6859/2014 along with others have held the denial of permanent commission to women Short Service Commission (SSC) officers in the Indian Navy in different branches which includes the cadres of Education, ATC and logistics to be discriminatory. It is very rightly held in para 32 of this notable judgment while ordering that permanent commission should be offered to the petitioners that, “We fail to comprehend that when these petitioners along with the male officers had undertaken the same kind of training but nevertheless were denied permanent commission although the men were granted the permanent commission with no special merit except for the fact that they belong to the male sex. If this does not tantamount to gender discrimination then what else does?”

Needless to say, in this present case we see that the Apex Court was considering the appeals filed by the Union Ministry against a judgment delivered by the Delhi High Court on September 4, 2015 allowing the claim of women officers for permanent commission. While rejecting the appeals of the Union Government and upholding the Delhi High Court judgment, the Apex Court held that both male and female officers are to be treated equally in granting permanent commission in Indian Navy, once the statutory bar for inducting women in Navy was lifted. Discrimination on the ground of sex as we see here or on the ground of religion or on the ground of region or on any other ground can never be justified under any circumstances!

For the sake of brevity, let us now deal starightaway with the directions passed by the Apex Court in this landmark, latest and extremely laudable judgment. It is held in para 96 that, “We hold and direct that:

(i)                         The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act;

(ii)                      By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations;

(iii)                   The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced;

(iv)                   The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside;

(v)                      All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher;

(vi)                   The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts;

(vii)                The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely: (i) availability of vacancies in the stabilised cadre at the material time; (ii) determination of suitability; and (iii) recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies;

(viii)             SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due;

(ix)                   Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana’s case, being inducted in pursuance of the specific representation contained in the advertisements pursuant to which they were inducted, shall be considered for the grant of PCs in accordance with directions (v) and (vi) above;

(x)                      All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;

(xi)                   As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and

(xii)                Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna shall be entitled. In addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at Rs 25 lakhs each.”

Going forward, it is then held in para 97 that, “We affirm the clarification which has been issued in sub-para (a) of paragraph 50 of the impugned judgment and order of the Delhi High Court.”

Furthermore, it is then held in para 98 that, “Compliance with the above directions shall be effected within three months from the date of this judgment. We accordingly dispose of the appeals.”

Most significantly, it is very rightly and remarkably held in para 91 that, “Once the policy decision of the Union Government was communicated on 25 February 1999, the authorities were bound to consider the claims of the SSC officers for the grant of PC in terms of Regulation 203. The naval authorities and the Union Government failed to do so, depriving them of the entitlement to be considered for the grant of PC. By the failure of the authorities to consider the SSC officers for PCs in terms of the policy communication of 25 February 1999, SSC officers lost out on the opportunity to be granted PCs and all the responsibilities and benefits attached to the grant of PC, including promotions and pensionable service. The situation which has come to pass is due to the failure of the authorities to implement statutory notifications issued under Section 9(2) the policy statement of 25 February 1999 by which they were bound and as the decisions of the Delhi High Court and the AFT.”

Most remarkably, it is then further commendably held in this same para 91 ahead that, “These SSC officers cannot be left in the lurch and the injustice meted to them by lost years of service and the deprivation of retiral entitlements must be rectified. The injustice is a direct consequence of the authorities having breached their duties under law, as explained above. To deny substantive relief to the SSC officers would result in a situation where a breach of duty on the part of the authorities to comply with binding legal norms would go unattended. This would result in a serious miscarriage of justice to the SSC officers who have served the nation and is unsustainable in law.”

Equally heartening to note is that the Apex Court rejected the Centre’s objections based on physiological features of women as “gender stereotypes”! Justice Dr DY Chandrachud while reading the operative part of the judgment minced no words to state commendably that, “Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

Words are short to commend these two Judges of the Apex Court – Justice Dr DY Chandrachud and Justice Ajay Rastogi who have delivered this extremely commendable judgment which has opened the door for permanent commission of women in the Navy just like earlier they by their order had similarly opened the doors of permanent commission of women in the Army! They rightly rejected the specious submission that women are not suited for sea sailing duties. It was laudably observed that, “It is impossible to countenance a submission that women cannot sail alongside men sailors.”

Sanjeev Sirohi

Refugee Can Pursue Claim For Damages Against Government For Illegal Detention: UK SC

 

In a fresh development with far reaching consequences, the United Kingdom (UK) Supreme Court has most recently, most remarkably and most rightly held in a latest, landmark and extremely laudable judgment titled R (on the application of DN (Rwanda)) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 7 that was delivered on 26 February 2020 whereupon it minced no words to send across a simple, sensible and straight message that refugee can pursue claim for damages against government for illegal detention. No government can claim an unchecked and unrestricted right to hold a refugee in illegal detention! This is exactly the sum and substance of the extremely commendable judgment delivered by the UK Supreme Court which has to be applauded in no uncertain terms!

To start with, this notable judgment authored by Lord Kerr for himself and with whom Lord Wilson, Lady Black and Lord Kitchin agree first and foremost set the ball rolling by pointing out in para 1 that, “The appellant was born in Rwanda. He came to the United Kingdom in August 2000 and sought refugee status because of what he claimed was a well-founded fear of persecution if he returned to his native land. His claim was accepted on 26 October 2000 on the basis that he was a member of a particular social group (Hutu). He was recognized as a refugee pursuant to the 1951 Refugee Convention and granted indefinite leave to remain.”

While elaborating further, it is then pointed out in para 2 that, “Since he arrived in the United Kingdom DN has been convicted of a number of offences. He has also been cautioned twice. The most significant of his convictions occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non-EEA national to the United Kingdom contrary to section 25 of the Immigration Act 1971. The circumstances leading to the conviction were these: DN and his sister had travelled to the Netherlands where they met a niece. DN returned to the UK with his niece who used his sister’s travel documents in an attempt to obtain entry to this country. Although this was a serious offence, it was accepted by the trial judge that DN had no financial motivation for the crime.”

To be sure, it is then illustrated in para 3 that, “At the same court before which he had pleaded guilty to the immigration offence, however, DN was convicted, again on his plea of guilty, of three offences of obtaining or attempting to obtain a pecuniary advantage by seeking or taking employment in another’s name. He was sentenced to 12 months’ imprisonment for the Immigration Act offence and two months consecutively for each of the three pecuniary advantage offences making a total sentence of 18 months’ imprisonment.”

In hindsight, it is then unearthed in para 4 that, “On 2 July 2007 DN completed the custodial element of his sentence. On the same date the Home Secretary decided to deport him subject to a final decision on the issue of his refugee status. This was followed by a decision on 3 July that DN should be deported pursuant to article 33(2) of the Refugee Convention which allows the expulsion of refugees “whom there are reasonable grounds for regarding as a danger to the security of the country”. It was said that DN had been convicted of a “particularly serious crime” and that he “constituted a danger to the community”. The decision was based on section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. He was notified of the decision to deport him, and detained on foot of that decision on 2 July 2007, pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971, which provides that where notice has been given to a person of a decision to make a deportation order against him, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

Going forward, it is then stated in para 5 that, “Pursuant to powers conferred by section 72(4)(a) of the 2002 Act, the Home Secretary had made the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. This specified several offences which were said to be particularly serious crimes. Assisting unlawful immigration to a member state contrary to section 25 of the 1971 Act was included among them. On that basis, the appellant’s conviction for the immigration offence was deemed to warrant his deportation. Section 72(4)(a) also provided that a person convicted of an offence specified in the 2004 order was rebuttably presumed to have been guilty of a particularly serious crime and constituted a danger to the community.”

As a corollary, what follows next is stated in para 6 that, “DN appealed the Home Secretary’s decision. His appeal was heard by the Asylum and Immigration Tribunal (“AIT”) on 22 August 2007. On 29 August the tribunal dismissed the appeal. It found that the appellant constituted a danger to the community of the United Kingdom, that his attempt to circumvent the immigration law in itself amounted to a danger to the community; that he could now be expelled pursuant to article 33(2) of the Refugee Convention; and that he had failed to rebut the presumption created by the 2004 Order that a person convicted of an offence specified by the Order was deemed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom. DN sought reconsideration of the decision. On 18 September 2007 that was refused. An application for a statutory review by the High Court of the AIT’s decision under section 103A of the 2002 Act was dismissed on 7 December 2007. On 31 January 2008 the Secretary of State signed the deportation order and made an order for DN’s detention pending deportation. That order was made pursuant to paragraph 2(3) of Schedule 3 to the 1971 Act which, although subsequently amended, at the time provided that “Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).” (Emphasis added).”

Importantly, it is then brought out in para 7 that, “Before the deportation order was signed, no suggestion had been made on DN’s behalf that the 2004 Order was unlawful. After it was made, however, solicitors, who had replaced those who originally acted for DN, wrote to the Secretary of State making that precise case. On that account the Secretary of State was invited to revoke the deportation order. It was also claimed that DN’s detention since 2 July 2007 was unlawful. On 29 February 2008 the appellant was released on bail by order of an immigration judge. By that time, he had spent 242 days in immigration detention.”

No doubt, the simple and straightforward questions that need to be asked here are: How can the illegal detention of DN be justified under any circumstances? How can the 242 days that DN spent in immigration detention be glossed over? How can the claim for damages of DN be overlooked?

More importantly, we need to pay heed to what is stated in para 20 that, “The need for finality in litigation likewise does not warrant displacement of the Lumba principle. As Lord Carnwath says (para 38 of his judgment), finality and legal certainty are desirable objectives. But they cannot extinguish a clear legal right. In this case DN was detained on foot of an intended, and then actual, deportation order which proved to be unlawful. His detention was uniquely linked to that deportation order. The unlawfulness of that detention is inescapable. The desiderata of finality and certainty cannot impinge on that inevitable result.”

Equally important if not more is what is then stated in para 25 that, “If, and inasmuch as, Ullah suggests that paragraph 2(2) of Schedule 3 provides a stand-alone authority for lawful detention, no matter what has gone before, and irrespective of the fact that the decision to deport lacks a legal basis, I consider that the decision was wrong and should now be recognised as such. The giving of notice of the decision to make a deportation order, the making of the deportation order, and the detention on foot of it are essential steps in the same transaction. The detention depends for its legality on the lawfulness of the deportation itself. Absent a lawful basis for the making of a deportation order, it is not possible to breathe legal life into the decision to detain.”

Most importantly, it is then very rightly held in para 26 that, “I would allow the appeal and confirm that the appellant is entitled to pursue a claim for damages for false imprisonment. The prospects of success in that claim are not, of course, a matter for this court, particularly because lines of possible defence to the claimant’s case, not pursued (or, at least, not pursued with any vigour), might be canvassed on the hearing of the claim.”

All told, it is a no-brainer that all the courts in all the countries must always pay heed to what has been held by the UK Supreme Court in this extremely landmark case and hold the concerned Government accountable for false imprisonment of a refugee and for violating his/her human rights with impunity! Of course, it is a cardinal principle of law that even refugees have human rights which are sacrosanct and must always be accorded the highest esteem! If any Government fails to do so then they also must be ready to pay compensation for human rights violations as we see in this DN case of UK!

Sanjeev Sirohi

Death By Rash Driving: Delhi HC Holds Debarment From Obtaining Driving Licence For Life As Excessive Sentence.

      In a balanced, brilliant and bold decision, the Delhi High Court has just recently on March 12, 2020 in a latest, landmark and extremely laudable 15-page judgment titled Sunil Kumar Mishra vs. State in Crl. Rev. P. 494/2017 which is pertaining to death caused due to rash and negligent driving has very rightly held that lifetime ban on the convict from getting a driving license is too harsh a sentence when his entire livelihood is depended upon driving. While modifying the order of sentence in a revision petition, the Single Bench of Justice Sanjeev Sachdeva of Delhi High Court has very rightly and remarkably observed that, “The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.” Very rightly so!

To start with, this notable oral judgment authored by Justice Sanjeev Sachdeva of Delhi High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner impugns judgment dated 27.02.2017 whereby the appeal of the petitioner impugning order on conviction dated 28.10.2015 has been dismissed, however, the order on sentence dated 08.11.2015 has been modified.”

While elaborating on the charges against the petitioner and the punishment that he had been sentenced to undergo, it is then observed in para 2 that, “Petitioner was convicted by the Trial Court of the offences punishable under Sections 279/304-A of the Indian Penal Code (IPC for short) and sentenced to undergo rigorous imprisonment for a period of six months for the offence under Section 279 IPC and rigorous imprisonment for the period of 18 months under Section 304A IPC.”

While then elaborating on the decision taken by the Appellate Court, it is then brought out in para 3 that, “The Appellate Court, in the appeal filed by the petitioner, considering mitigating circumstances and also the family condition of the petitioner, while upholding the order on conviction, modified the order on sentence and sentenced the petitioner to pay a fine of Rs 1000/- for the offence under Section 279 IPC and in default of payment of fine to undergo simple imprisonment for a period of 8 days and sentenced the petitioner to undergo rigorous imprisonment for a period of 12 months for the offence under Section 304A IPC, instead of 18 months.”

In addition, it is then also pointed out in para 4 that, “The Appellate Court additionally directed that the driving licence of the petitioner shall stand cancelled and debarred him from obtaining any driving licence throughout his life and directed that no fresh driving licence shall be issued to him.”

By all accounts, the punishment that was imposed by the Appellate Court as narrated in para 4 is far too excessive. This has been acknowledged and appreciated even by the Delhi High Court itself in this landmark judgment even though it admitted that the Appellate Court is empowered to debar a person from holding a licence for as long a period as it deems fit. So no wonder that it had to be set aside!

Be it noted, para 29 very rightly states that, “The petitioner is a driver by profession and cancellation of the driving license of the petitioner permanently and debarring him from obtaining a driving licence for life amounts to a punishment that he cannot carry out the vocation of driving throughout his life.”

Most significantly, it is then very rightly conceded in para 30 that, “The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.” Who can deny or dispute this? Certainly no one!

Needless to say, it is quite remarkable that Delhi High Court has been gracious enough to concede that the consequences of cancellation of his driving license for life and debarring him from obtaining any driving license throughout his life literally amounts to his civil death as he would be decapitated from carrying out his profession throughout his remaining life which certainly under no circumstances can be justified as two wrongs cannot make a right! The Appellate Court certainly did not deliberate much on this! This alone explains why it failed to appreciate what the Delhi High Court has done now so rightly!

To put it succinctly, the Delhi High Court then rightly held in para 32 that, “In the present case, as noticed above, the concurrent finding of both the courts below is that petitioner caused the death by driving the offending vehicle i.e. truck trailer, in a rash and negligent manner and hit against the deceased from the back, in such a manner that it caused the death of the deceased on the spot. Clearly, it cannot be said that the action of the Appellate Court in directing cancellation of the license driving license is unwarranted. However, in the facts of the case and particularly keeping in view the provisions of section 22 of the Act, I am of the opinion that cancellation of the license driving license of the petitioner for all classes or description of vehicles is excessive.”

Finally and no less significantly, it is then held in para 33 that, “Keeping in view the facts and circumstances of the case, interest of justice would be served, in case, the sentence awarded by the Appellate Court of cancellation of the driving license of the petitioner and debarring him from obtaining any driving license throughout his life, is modified to the extent that the driving license of the petitioner is cancelled for the class and description of medium and heavy goods and medium and heavy passenger vehicle and he is debarred from obtaining a driving licence for medium and heavy goods and medium and heavy passenger vehicle. For obtaining a driving licence of other description of vehicles he shall have to undergo a fresh test of competence to drive.”

In conclusion, it may well be said that it is a fairly balanced and well concluded judgment. Justice Sanjeev Sachdeva of Delhi High Court very rightly acknowledges the power of the Appellate Court to deprive the petitioner of his driving license for life but in the same vein also concedes that it is excessive! This alone explains that why the judgment of the Appellate Court was overturned and the petitioner was granted relief by the Delhi High Court! All the courts must follow the Delhi High Court in similar such cases and take a compassionate view as we see here in this notable judgment!

Sanjeev Sirohi

J&K HC Dismisses PIL Against The Use Of Pellet Guns

      In a very significant development, the Jammu and Kashmir High Court in a latest, landmark and extremely laudable judgment titled J&K High Court Bar Association v. Union of India & ors. in WP(C) (PIL) no. 14/2016 reserved on February 10, 2020 and pronounced on March 11, 2020 dismissed a Public Interest Litigation (PIL) that sought prohibition of use of pellet guns. How long can security forces restrain themselves if public becomes unruly and start pelting stones, bottles and what not? Why can’t the public be more disciplined and not always just shout of fundamental rights promised to them by the Constitution but also play a more responsible role like a good citizen by always complying with the fundamental duties as enshrined in the Constitution?

To start with, a two Judge Bench of the Jammu and Kashmir High Court comprising of Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur sets the ball rolling by first and foremost listing the points made by the petitioner in para 1 which runs as follows: “This petition has been filed by the Jammu and Kashmir High Court Bar Association, Srinagar, through its Executive Member, Mr. Muhammad Ashraf Bhat, way back in July, 2016, with the following prayers:

“a) That the respondents, their agents and servants be prohibited by a writ of prohibition from using or caused to be used 12-Bore Pellet Gun and or of any other Bore and Cartridges containing pellets as a means of crowd control against any group of people, including protestors in the State of Jammu and Kashmir. The use of pellet gun be totally banned as a means of crowd control.

b) That all the officers, who took the decision of using the pellet guns at the protestors and non-protestors after 8th July, 2016 and those who actually fired the pellet guns be prosecuted. Cases be directed to be registered against them for causing unlawful bodily injury, deprivation of eye sight etc.

c) That the respondents, their agents and servants be directed to compensate all those persons whose names are mentioned in the petition as well as those whose particulars will come to the notice of this Hon’ble Court during the hearing of this petition and the compensation be determined in the context of violation of Article 21 of the Constitution as made applicable to the State of Jammu and Kashmir, as these persons have either been deprived of their eye sight and or have suffered bodily injury, trauma, agony, mental pain etc.;

d) That the Director, SKIMS, Soura, Srinagar, Principal, SKIMS, Medical College, Bemina; Director, Health Services, Kashmir, and the Medical Superintendent, SMHS Hospital be directed to furnish to this Hon’ble Court details of all those persons who reported in the SKIMS, Hospitals, District Hospitals, Sub District Hospitals, Primary Health Centres for treatment on account of pellet injury and the treatment provided to them.

e) That the State of Jammu and Kashmir through Chief Secretary be directed to furnish report to this Hon’ble Court as to the circumstances and the time decision to refer pellet injury patients outside the State was taken. The respondents be also directed to bring competent and well trained surgeons from outside the State so as to provide treatment to those who are not willing to go outside for treatment or have no means for meeting the expenses of such treatment inside or outside the State. The Court may also determine negligence, if any, caused by any authority of the State in dealing with pellet injury patients.

d) Any other appropriate writ direction or order as the Hon’ble Court may deem fit in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents.””

After hearing the learned counsel for the parties and considering the matter as pointed out in para 2, it is then brought out in para 3 that, “As per the averments made in the petition, the immediate cause for filing of this writ petition has been the unpleasant events which had occurred from 08.07.2016 wherein, according to the petitioner association, people, including teenagers, watching clashes between protestors and security forces, had received pellet injuries in their eyes, skulls and throats. It is alleged that about 4000 persons were injured and about 100 persons were blinded. The petitioner in para 7(f) of the petition has given particulars of 46 persons whose eyes, according to him, were damaged by pellet injuries. Alleging excessive use of force against protestors, the petitioner in the petition has referred to various provisions of the Code of Criminal Procedure and other procedures to be adopted for dealing with and dispersal of assemblies. The petitioner association, profusedly, espousing a public interest, has filed this petition with the above prayers.”

Most crucially, it is then laudably pointed out elegantly in para 12 that, “Having considered the matter, in view of the above, we are of the opinion that so far as the constitutional tort is concerned, the State has fulfilled its obligation, inasmuch as they have made ex-gratia payments to most of the injured persons as mentioned above, and with respect to the remaining it is categorically stated that their cases shall be decided in tune with the Government policy in that behalf in due course of time. We think that in the event any individual person feels that he has not been adequately compensated commensurate with the injury he had suffered, nothing can come in his way to claim such compensation as he may wish from the State under the private law in an action based on tort through a suit instituted in a court of competent jurisdiction. This Court in this PIL, in its jurisdiction under Article 226 of the Constitution of India, cannot grant a relief to the satisfaction of every such individual allegedly injured in police action, especially so when there is a finding recorded by the Court in its order dated 21.09.2016 that almost every day, in the guise of protests, the security personnel, their camps and Police Stations were targeted by unruly crowds, and that, if the protest is not peaceful and the security persons are attacked by huge and violent mobs, they have to necessarily use force in their self defence and for protecting public property. Therefore, strictly speaking, it is not a case where compensation is being sought or claimed for wrong doing of any security force personnel, or for violating any fundamental right of any citizen by them, but for discharge of public duty by such security force personnel, or for violating any fundamental right of any citizen by them, but for discharge of public duty by such security force personnel who were being attacked by violent mobs during the relevant period. In any case, since the Government has discharged its obligation, nothing more needs to be done in this PIL.”

No doubt, each and every true Indian must be proud for what the Jammu and Kashmir High Court has held so explicitly and elegantly! How can security forces function smoothly if their hands are tied? How can public beating security forces be ever justified under the garb of “right to dissent”? Who will join security forces if the High Courts and Supreme Court justify attack on security forces, blocking of roads, burning of Constitution and national flags and chanting of pro-Pakistani slogans as “right to dissent”?

Mercifully, we see that the Jammu and Kashmir High Court Bench comprising of Justice Dhiraj Singh Thakur and Justice Ali Mohammad Magrey have commendably taken the right stand in this leading case which will send the right message to all citizens that, “You cannot on one hand spread hatred, violence and attacks and on the other hand demand that security forces just keep tolerating everything quietly without saying anything or without retaliating”!

How can attack on police station be ever justified? How can attack on security personnel and their camps be ever justified under any circumstances? How can violence by unruly crowds be ever justified?

How can they be allowed to do what they feel like doing? Have we not seen what the rioters did just recently in Delhi where more than 50 persons have died and the casualty is rising higher and higher with every passing day? Which High Court or even Supreme Court will ever try to justify it in the garb of “right to dissent”?

God help our country if ever Courts try to justify it on any ground whatsoever! Even God helps those who helps themselves! If our Courts try to justify blocking of roads under the garb of “right to dissent”, chanting of anti national slogans under this same garb and attacking our security forces and killing our police men as we saw most recently in Delhi when Head Constable Ratan Lal died of bullet injuries then we are certainly fit to be termed as a “lawless country” where everything is sought to be justified under the shameless garb of “right to dissent” just like Pakistan is fit to be termed as a “terror state” where terror groups operate with impunity with active blessings of Pakistani Army, Government and Judiciary!

Mercifully, again we have not descended to that niggardly level! This is exemplified most recently by this latest and extremely commendable judgment of the Jammu and Kashmir High Court where it has rightly refused any relief from pellet guns to those who attack police station and security forces camps! All courts must draw some lessons from this and advise people to stop justifying attacks on forces, chanting of anti national slogans and glorifying of Pakistan under any circumstances! India is India and it cannot become Pakistan ever! Pakistan split in 1971 when Bangladesh was born but India has remained united from 1947 to 2020 because we are a democratic country where people enjoy maximum freedom as my best friend Sageer Khan said way back in 1993 that, “Muslims enjoy maximum liberty in India. In Pakistan they are suppressed and that is why it split in 1971 and even now Indians who went to Pakistan in 1947 are still treated with contempt, are termed as Mohajjirs and discriminated against! Same holds true for Pashtuns, Balochis, Sindhis and people of PoK along with other regions! But in India Muslims enjoy polygamy even though it was banned among Hindus in 1955 yet Hindus never said a word. Triple talaq was banned in 1961 in Pakistan but we are still enjoying it along with Nikah Halala! Muslims enjoy all facilities in India and are allowed to become President also as also can occupy any other post and Muslim dominated Jammu and Kashmir enjoy so many rights yet they keep complaining but see how Hindus are treated in Pakistan where they have no right to life and are treated as “second grade citizens”! Muslims must learn tolerance from Hindus and treat Kashi, Ayodhya and Mathura as Hindu pilgrim sites just like we treat Mecca and Medina as Muslim pilgrim sites  and never allow even a single temple anywhere not just in Mecca or Medina but in any other place in Saudi Arabia or any other Gulf country! Only then can our country become more powerful!”

Sanjeev Sirohi

NCLAT exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

It is the right time to celebrate the big win for 63 moons as the National Company Law Appellate Tribunal, has dismissed the plea of the Ministry of Corporate Affairs (MCA) to supersede the Board of 63 moons technologies limited (formerly known as FTIL) under Section 397 of the Companies Act, 1956. The present 63 moons Board comprises of 4 former Secretaries IAS (Retd.), 1 former Supreme Court Judge, 1 former Bombay High Court Judge, 1 CA, 1 IIM-A Alumni, 1 noted Economist and 2 former Senior Bankers.

NCLAT has completely exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

On this occasion Mr. S. Rajendran, who is MD & CEO of 63 moons stated that “We are extremely happy to note that NCLAT has rejected MCA’s prayer to supersede the Board of 63 moons in connection with the payment default crisis that occurred at one of our subsidiaries, National Spot Exchange Ltd (NSEL) in 2013. The order has also given a clean chit to the current Board of 63 moons of any alleged misconduct or wrongdoing against the interest of its shareholders.”

Mr. Rajendran was shocked and surprised at NCLAT upholding the NCLT Chennai’s order on Section 388B and such sections against some of the past directors of 63 moons who were not even on the Board of NSEL i.e. Mr. Manjay Shah and Mr. Dewang Neralla. And strangely in case of Mr. Jignesh Shah, Section 388B was applied on the basis of material beyond the original petition filed by MCA in 2015. Shockingly, out of the three directors of 63 moons, only Mr. Jignesh Shah was on Board of NSEL and no Section 397 proceedings are initiated against NSEL nor any Section 388B is upheld against any other directors of NSEL including other directors of 63 moons who were also on NSEL Board. This complete contradiction is one of the many unexplained & unsubstantiated inconsistencies in the Order.

The NSEL payment crisis, occurred because of a well-crafted political conspiracy during UPA 2 era. It was due to continued targeting of Mr. Jignesh Shah which started in the earlier UPA Govt. by a powerful minister and his network of loyal bureaucrats, who failed in their duty and misled the Govt. for many such industry negative actions.

At this occasion Mr Rajendran stated that,“The operational part of judgement is being examined and all necessary steps will be taken as per the legal advice. We are very sure that ultimately truth shall prevail & justice will be done.”

 

Sexual Harassment At Workplace Is An Affront To Women’s Fundamental Rights: Supreme Court

While displaying zero tolerance for sexual harassment of women at workplace, the Supreme Court Bench comprising of Justice Dr DY Chandrachud and Justice Ajay Rastogi have just recently on February 25, 2020 in a notable judgment titled Punjab and Sind Bank and Others Vs Mrs Durgesh Kuwar in Civil Appeal No. 1809 of 2020 have minced no words to make it abundantly clear that sexual harassment at the workplace is an affront to the fundamental rights of a woman. This was so remarked while upholding a Madhya Pradesh High Court judgment that had quashed a transfer of a woman bank employee! Very rightly so! There must be no tolerance for sexual harassment at any workplace and those indulging in it must be made to face the music of law!

To start with, the ball is set rolling in para 2 of this noteworthy judgment authored by Justice Dr Dhananjaya Y Chandrachud for himself and Justice Ajay Rastogi wherein it is observed that, “A senior officer of a public sector banking institution complains that her reports about irregularities and corruption at her branch and her complaints against an officer who sexually harassed her met with an order of transfer. The case involves the intersection of service law with fundamental constitutional precepts about the dignity of a woman at her workplace.”

Be it noted, para 3 then discloses that, “This appeal arises from a judgment of a Division Bench of the Indore Bench of the High Court of Madhya Pradesh dated 18 March 2019 in a Writ Appeal arising out of an order of the learned Single Judge dated 11 February 2019.”

To recapitulate, it is then remarkably laid bare in para 4 that, “The respondent was appointed as a Probationary Officer of the Punjab and Sind Bank, the first appellant, on 8 October 1998 in Junior Management Grade Scale 1. She was promoted to the post of Chief Manager in Scale IV. On 2 September 2011, the respondent was transferred to the Zonal Office at Mumbai. On 7 October 2011, she was transferred to the Branch Office at Indore. In September 2016, the first respondent was promoted to the post of Chief Manager in Scale IV. On 23 September 2016, the competent authority of the bank decided to continue her at the branch in Indore upon promotion. On 11 December 2017, the respondent was transferred from the Branch Office at Indore to the Branch Office at Saraswa in the district of Jabalpur. Intimation of the transfer was furnished to her on 14 December 2017. On 31 January 2018, the respondent submitted a representation to the Zonal Manager, recording a reference to the circulars of the bank governing the posting of women officers. She made a request for being retained at Indore. Following the earlier representation, she submitted a reminder on 15 February 2018 and a representation on 19 February 2018 to the Executive Director of the Bank.”

After hearing both sides, the Bench then observes in para 17 that, “We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law.”

For the sake of brevity, the key issue in real terms that is raised in para 18 is as stated that, “The real issue which the Court needs to enquire into in the present case is as to whether the order of the High Court quashing the order of transfer can be sustained, having regard to the above principles of law. The material on record would indicate that commencing from 31 December 2016 and going up to 15 November 2017, the respondent, who was posted as Chief Manager in her capacity as a Scale IV officer at Indore branch, submitted as many as six communications drawing attention to the serious irregularities which she had noticed in the maintenance of bank accounts of and transactions by liquor contractors. The contents of the complaints raised serious issues. The order of transfer was served on the respondent within a month of the last of the above representations, on 14 December 2017. On 19 February 2018, the respondent levelled allegations specifically of sexual harassment against the Zonal Manager. The bank initially constituted an ICC. The respondent raised an objection to the presence of some of the members of the Committee.”

Going forward, para 19 then stipulates that, “The report of the ICC contains a reference to the objections which the respondent raised to the members at serial numbers (ii), (iv) and (vi) above. These objections were noted in the course of the report of the ICC dated 26 February 2019. The respondent drew the attention of the Presiding Officer of the ICC to the fact that Ms Rashmita Kwatra, AGM is the spouse of a retired General Manager, who was part of the process of the transfer of the respondent. As against Ms Seema Gupta, who was nominated as an independent member, the respondent noted that she was a panel advocate of the bank and was regularly contesting cases in court involving the bank. The respondent also raised an objection in regard to the presence of Mr Vimal Kumar Attrey as a member of the Committee. The report of the Committee contains a reference to the fact that following the objections which were raised by the respondent, the Committee was reconstituted, as a result of which Ms Rashmita Kwatra and Mr Vimal Kumar Attrey were substituted by two other officers of the bank. However, Ms Seema Gupta, Advocate continue to be a member of the ICC.”

Most significantly, it is then elegantly postulated in para 20 that, “The Act was enacted to provide protection against sexual harassment of women at the workplace as well as for the prevention and redressal of complaints of sexual harassment. Sexual harassment at the workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business.”

What’s more, it is then rightly brought out in para 22 that, “Clause (c) of Section 4(2) indicates that one member of the ICC has to be drawn from amongst a non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the Committee. It obviates  an institutional bias. During the course of hearing, we have received a confirmation from the learned senior counsel appearing on behalf of the bank that Ms Seema Gupta was, in fact, a panel lawyer of the bank at the material time. This being the position, we see no reason or justification on the part of the bank not to accede to the request of the respondent for replacing Ms Seema Gupta with a truly independent third party having regard to the provisions of Section 4(2)(c) of the Act. This is a significant facet which goes to the root of the constitution of the ICC which was set up to enquire into the allegations which were levelled by the respondent.”

Simply put, the Bench then goes on to add in para 24 that, “The material which has been placed on record indicates that the respondent had written repeated communications to the authorities drawing their attention to the serious irregularities in the course of the maintenance of accounts of liquor contractors and in that context had levelled specific allegations of corruption. The respondent was posted on 14 December 2017 to a branch, which even according to the bank, was not meant for the posting of a Scale IV officer. The sanctity which the bank attaches to posting officers of the appropriate scale to a branch commensurate with their position is evident from the Board’s Resolution to which we have adverted earlier. Admittedly, the branch to which the respondent was posted was not commensurate to her position as a Scale IV officer. There can be no manner of doubt that the respondent has been victimized. Her reports of irregularities in the Branch met with a reprisal. She was transferred out and sent to a branch which was expected to be occupied by a Scale I officer. This is symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides.”

To put it succinctly, it is then observed in para 25 that, “In view of the above analysis, we are of the view that the High Court cannot be faulted in coming to the conclusion that the transfer of the respondent, who was holding the office of Chief Manager in the Scale IV in Indore branch to the branch at Saraswa in the district of Jabalpur was required to be interfered with. At the same time, a period of nearly four years has since elapsed. Despite the order of stay, the respondent was not assigned an office at Indore and had to suffer the indignity of being asked to sit away from the place assigned to a Branch Manager. Considering the period which has elapsed, it would be necessary for the Court to issue a direction, which, while sub-serving the interest of the bank, is also consistent with the need to reserve the dignity of a woman employee who, we hold, has been unfairly treated.”

Now coming to the concluding paras, para 26 holds that, “We accordingly direct that Ms Durgesh Kuwar, the respondent officer, shall be reposted at the Indore branch as a scale IV officer for a period of one year from today. Upon the expiry of the period of one year, if any administrative exigency arises the competent authority of the bank would be at liberty to take an appropriate decision in regard to her place of posting independently in accordance with law keeping in view the relevant rules and regulations of the bank, in the interest of fair treatment to the officer.”

Lastly, it is then held in para 27 that, “While affirming the decision of the High Court, the appeal is disposed of in terms of the above directions. The respondent would be entitled to costs quantified at Rs 50,000 which shall be paid over within one month.”

To sum up, the crux of this latest, landmark and extremely laudable judgment is that there has to be zero tolerance for sexual offences directed against women . Those men who dare to still indulge in it have to be made to suffer most swiftly the penal consequences of their reprehensible actions! The sum and substance of this noteworthy judgment is that sexual harassment of women at workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business. The provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 must be strictly and swiftly implemented so that the woman victim gets the due relief at the earliest! There can be no denying or disputing it!

Sanjeev Sirohi

Delhi HC Issues Directions For Streamlining The Recording Of Victims/Witnesses Testimonies Of Foreign Nationals In Cases Of Sexual Assault

                  It is good to learn that while unambiguously highlighting the inevitable and invaluable importance of efficient recording of witness testimonies in a criminal trial, the Delhi High Court most recently in a latest, landmark and extremely laudable judgment titled Court On Its Own Motion Vs State in Crl. Ref. 2/2019 delivered on February 28, 2020 has issued a series of directions for collecting the evidence given by victims/witnesses, who are foreign nationals, in cases of sexual assault. This was imperative also so that the matter was decided swiftly. If this was not done then the cases as usual would have continued inordinately and this would certainly hamper the speedy and swift delivery of justice!

To start with, this notable judgment authored by Justice Manmohan for himself and Justice Sangita Dhingra Sehgal first and foremost sets the ball rolling by pointing out in para 1 that, “The subject-matter of the present Criminal Reference is reproduced below:

“There is no law/guidelines by which the court can seek intervention/involvement of the MHA and/or concerned Embassy/High Commission/Consulate for making necessary arrangements for recording of testimony of the victims/witnesses who are foreign nationals in cases of sexual assault even when the victim is very much available and has offered to get her testimony recorded. There is an urgent need to redress the issue so that the case involving victims, who are foreign nationals, do not result in imminent acquittal for want of recording of testimony of the victim/witnesses and further that the case does not remain pending in the system inordinately.””

In hindsight, para 2 then puts forth that, “It was brought to our attention that on 11th February, 2009, the Ministry of Home Affairs (hereinafter referred to as ‘the MHA’) issued the ‘Comprehensive Guidelines Regarding service of summons/notices/judicial process on persons residing abroad’ (‘2009 Guidelines’) that laid down the procedure for the service of summons on witnesses residing abroad, for the purpose of recording their evidence. These guidelines of 2009 clarified that the MHA on behalf of the Central Government had entered into reciprocal arrangements with foreign governments for service of summons/warrants/judicial processes, as required under Section 105 of the Code of Criminal Procedure. The reciprocal arrangements were in the form of Mutual Legal Assistance Treaties (‘MLAT’) with other countries.”

As it turned out, para 3 then states that, “During the pendency of the present proceedings, the MHA revised and updated its 2009 Guidelines with a view to comprehensively codify guidelines covering a gamut of issues including issuance of Letters Rogatory, mutual legal assistance requests, service of summons, notices, judicial processes including request for video conferencing, protection and preservation of data and extradition requests.”

Needless to add, it is then pointed out in para 4 that, “The comprehensive and updated Guidelines on Mutual Legal Assistance in Criminal Matters (the ‘MHA Guidelines, 2019’) was approved by the Ministry of Home Affairs and have also been placed before this Court.”

To put things in perspective, it is then added in para 5 that, “Vide order dated 29th November, 2019, this Court took on record the detailed report handed over by the learned Amicus Curiae and extracted salient features of the said report. The Union of India and the Government of NCT of Delhi were directed to file a response to the report of the learned Amicus Curiae.”

As a corollary, it is then pointed out in para 6 that, “The Union of India (through the Ministry of Home Affairs) has filed its response on 17th January, 2020 endorsing the comments of the learned Amicus Curiae.”

Be it noted, it is then disclosed in para 7 that, “The Delhi Police has also filed a status report dated 11th February, 2020 through the learned Standing Counsel (Criminal). The Report submitted by the learned Amicus Curiae had recommended that the Investigating Officer should collect relevant personal information, including passport and visa details of the witness residing abroad so that the process is immediately commenced for the issuance of summons to such witness as per the MHA Guidelines, 2019 and trial is set into motion. In paragraph 4 of the status report filed by the Delhi Police, it is stated that instructions have been issued by the DCP, Legal Cell, Police Headquarters, Delhi, vide No. 762-90/Court Cell (DA-1)/PHQ dated 20th January, 2020 to all supervisory and Investigating Officers to ensure strict compliance with the suggestions of the learned Amicus Curiae, incorporated in the order of this Court dated 29th November, 2019.”

What follows next is narrated in para 8 that, “In response to the learned Amicus Curiae’s suggestion that necessary amendments be made to the Delhi Criminal Courts (Payments of Expenses to Complainant and Witnesses) Rules, 2015, to incorporate the costs and payments for transmission of summons, notices and judicial processes, payments to witnesses including expert witnesses etc., the Government of NCT of Delhi has placed on record a letter dated 23rd January, 2020 issued by the Principal Secretary (Law, Justice and LA). By way of this letter, it has been brought to this Court’s notice that since the Delhi Criminal Courts (Payments of Expenses to Complainant and Witnesses) Rules, 2015, have been notified on the basis of a set of rules forwarded by this Court vide letter 8256/Rules/DHC/2013 dated 18th March, 2013, this Court has been requested to take necessary action for amending the rules and to forward the recommendations/set of rules to the Department of Law, Justice and LA, for compliance.”

Directions to the Government of NCT of Delhi

To be sure, it is then enunciated in para 9 that, “The learned Amicus Curiae proposes that the following amendment be made to the Delhi Criminal Courts (Payment of Expenses to Complainant and Witnesses) Rules, 2015:-

“Chapter 5

Payment of expenses in cases of persons residing abroad

16. The expenses for service of summons, notices and judicial processes, on persons residing abroad, and for recording of statement or collecting of evidence through video-conferencing:-

The actual expenses for service of summons, notices and judicial processes, on persons residing abroad, expenses sufficient to defray the cost of travelling of the witness within the territory of the Requested Country to a point where evidence is to be recorded through video-conferencing, the cost of establishing the live video-conferencing link, the remuneration of interpreters/translators provided by the Requested Country, expenses of preparing soft copies, certified copies of the relevant evidence and documents by the Coordinator at the Requested Country to the Court, and such other ancillary expenses as may arise, shall be paid on receipt of such demand for payment from the Requested Country, as applicable under the provisions of the Mutual Legal Assistance Treaty, or any other bilateral or multilateral treaty, or any other international instrument existing between India and the Requested Country, as the case may be.””

While continuing in the same vein, it is then also added in para 10 that, “The above proposed amendment may be placed before the Rules Committee of this Court for consideration, and if approved, be forwarded to the Principal Secretary (Law, Justice & LA), Government of NCT of Delhi, for necessary compliance.”

Video-Conferencing Guidelines

To say the least, para 11 then makes it clear that, “This Court has also issued guidelines laying down the procedure to be followed for Video Conferencing titled as ‘Video Conferencing Guidelines Issued by the High Court of Delhi: Guidelines for the Conduct of Court Proceedings between Courts and Remote Sites’, which were subsequently incorporated as Annexure B to the Delhi High Court (Original Side) Rules, 2018, and are applicable to both civil and criminal cases.”

More significantly, para 12 then minces no words in saying in simple and straight language that, “Having gone through the Report of the learned Amicus Curiae, and the need to ensure that the Video-Conferencing Guidelines issued by this Court are in conformity with the MHA Guidelines, 2019, we deem it appropriate to issue the following directions:

Directions for the High Court of Delhi

1.  Replace existing Rule 3.4(i) with the following:-

(i)             Where the person to be examined is overseas, the Court may specify the coordinator out of the following:-

(a)          the official of the Consulate/Embassy of India,

(b)         duly certified Notary Public/Oath Commissioner.

Notwithstanding the above, in criminal cases, the Coordinator at the remote point shall be appointed by the Competent Authority in the Requested Country in terms of paragraph 4.9 of the MHA Guidelines, 2019, and may be any of the following:

a)  the Central Authority of Requested Country,

b) if the law of Requested Country permits, the official of Consulate/Embassy of India.

2.  Incorporate the following as Rule 6.12:-

“6.12. In criminal cases, all relevant documents sought to be put to the witness by the Prosecution/Complainant and the Defence, must be scanned, identified and numbered, and translated into a language that the witness is familiar with (if required). The same should be sent to the Coordinator in the Requested Country prior to the hearing, under strict instructions of confidentiality.”

It would be instructive to note that para 13 then observes that, “The above proposed amendments may be placed before the Information Technology Committee of this Court, for consideration.”

Practice Directions for all Trial Courts

Most significantly, it is then elucidated in para 14 that, “This Court is of the view that certain practice directions may also be issued to all criminal courts in order to streamline the procedure for service of summons, notices, and judicial processes, on witnesses residing abroad, and for recording their evidence through video-conferencing.

1.     For the purpose of service of summons/notices/judicial processes on persons residing abroad, the Trial Courts must follow the procedure as laid out in the MHA Guidelines, 2019. The designated Central Authority in India is the Ministry of Home Affairs, and not the Ministry of External Affairs or any Indian Embassy or Consulate abroad.

2.     It is clarified, however, that the Ministry of Home Affairs does not facilitate the execution of non-bailable warrants of arrest on an individual residing abroad. Such requests are in the nature of extradition proceedings and ought to be forwarded to the Ministry of External Affairs, CPV Division, Patiala House Annexe, Tilak Marg, New Delhi – 110001. Reference may be made to Part VII of the MHA Guidelines, 2019.

3.     For service of summons/notices/judicial processes on persons residing abroad, Trial Courts should ensure compliance of Figure 4.6 of the MHA Guidelines, 2019, under its sign and seal. Trial Courts should additionally comply with the requirements of the checklist contained in Figure 4.3.

4. At the time of issuance of summons on a person residing abroad, the order of the Trial Court should also indicate whether evidence is to be recorded through video-conferencing.

5. It must be borne in mind that the MHA requires a minimum of ten weeks for the purpose of transmission of summons/notices/judicial processes on persons residing abroad. The process of establishing video-conferencing links between the Court and the Requested Country can begin only after service is completed. Trial Courts should therefore fix date(s) for recording of evidence, at least 12-13 weeks after its order issuing summons to the said witness.

Trial Courts should separately fix an intermediate date between the date of issuance of summons and the date of recording of evidence, to seek confirmation from the prosecuting agency about the service of summons, and to additionally seek details/information regarding the technical coordinator in the Requested Country, along with the details of the technical link for conducting video conferencing on the date(s) fixed.

6. Based on the information received on the intermediate date, the Trial Court should direct its own Coordinator to forthwith establish contact with its counterpart in the Requested Country, conduct a mock test of the video-conferencing link prior to the date of recording of evidence, and submit a report in this regard at least three days prior to the date fixed for recording of evidence. On the receipt of the report from Court Coordinator, the documents relied upon by the prosecution and the Defence should be identified, scanned and numbered, and sent to the Coordinator in the Requested Country, under strict instructions of confidentiality. An identical set of the above documents should be made a part of the Court record.

7. Due to the time taken and the costs involved in summoning witnesses residing abroad and setting up video-conferencing facilities, besides the involvement of bilateral agencies in both countries, Trial Courts should ensure that the date(s) fixed for recording of evidence through video-conferencing are utilised productively. If for some reason the Presiding Judge is unable to hold Court on the date(s) fixed, s/he should ensure, as far as possible, that the evidence is recorded by the Link Judge.”

Directions to the Delhi Police

Be it noted, it is then envisaged in para 15 that, “We have also gone through the status report filed on behalf of the Delhi Police dated 11th February, 2020. In view of Paragraph 4 of the status report, no further order or directions are required to be issued to them with regard to collection of personal information of the witness residing abroad. However, the Investigating Officer of the case must ensure that information regarding service of summons and details pertaining to video-conferencing links are provided to the Trial Court after obtaining the same from the MHA.”

Directions for Training

Of course, it cannot be missed out that it is then held in para 16 that, “We are also of the view that training sessions for judicial officers, technical staff, and police officials must be conducted to familiarize them with the procedures contained in the MHA Guidelines, 2019, the Video-Conferencing Guidelines issued by the High Court of Delhi, and the Delhi Criminal Courts (Payment of Expenses to Complainant and Witnesses) Rules, 2015.”

Now coming to the concluding paras, it is held in para 17 that, “The learned Amicus Curiae has further submitted that a copy of the MHA Guidelines, 2019, must be uploaded on the websites of this Court as well as of the District Courts. We accordingly direct the same.” Para 18 then states that, “Registry is directed that a copy of this order and the earlier order dated 29th November, 2019, be circulated to the courts below.” Lastly, it is then held in para 19 that, “In view of the above, no further orders are called for in the present matter and the Registry is directed not to list the same any further.”

No doubt, it is an extremely commendable and well written judgment by a two Judge Bench of the Delhi High Court which must be implemented in totality. It will certainly go a long way in efficient recording of witnesses in a criminal trial in cases of sexual assault. There can be no denying ort disputing it!

Sanjeev Sirohi

Why Blocking Of Road At Shaheen Bagh Was Allowed?

 

Why is it that even after more than 81 days the blocking of road at Shaheen Bagh in Delhi is continuing uninterrupted since 15 December 2019? Why is it that Centre allowed this to happen? Why were they not promptly evicted?

Why rule of law was allowed to be flouted with impunity by the Centre? Should we be proud of it? Will this not inspire others also to follow suit?

Why were the potentially dangerous consequences not thought of seriously by the Centre of all this leading to huge resentment among the rest of the people which finally culminated in violence and riots which has left nearly 50 dead and there are many more who are still battling with their lives? Why Centre allowed again blockade at other places also which ultimately culminated in horrifying riots that has sullied our image in front of the world? Why Centre kept watching all this like a mute spectator?

What message has been sent? Why women have been allowed to block the road in the name of protest? What sort of protest is this that you put other people to maximum inconvenience?

How can this be justified under any circumstances? Why is it that Supreme Court instead of ordering the immediate eviction of blocking of road which is a national highway and connects Delhi and Noida decided to just condemn it and ordered the setting up of a high powered Committee comprising of senior lawyer Sanjay Hegde and Sadhana Ramachandran to engage in talks with those who have done the illegal act of blocking road? What precedent has the Supreme Court set?

Why Supreme Court didn’t order them to immediately move to some other location so that the common person is not disturbed in any way from moving from one place to another? It cannot be justified under any circumstances! It will only serve to encourage others to follow this same extremely dangerous and diabolic route which is bound to have disastrous consequences for our nation!

How can any sane person justify what Solicitor General Tushar Mehta told the Supreme Court that Harsh Mander who is a former IAS officer said openly that, “We have seen the track record of the Supreme Court. We have no faith in Supreme Court but we will still have to go. But ultimately, justice will be done on the streets?” Mehta was referring to Harsh Mander’s long controversial speech in Hindi, allegedly made at Jamia Millia Islamia University on December 16, 2019. He also said that, “Ye ladai sansad mein nahi jeeti jayegi. Yeh ladai Supreme Court mein bhi nahi jeeti jayegi. Wahan koshish zaroor kareenge, hamara Supreme Court hai. Lekin faisla na sansad mein na Supreme Court mein hoga. Is desh ka kya bhavishya hoga, aap log sab naujawan hai, aap apne bachon ko kis tarah ka desh dena chaahte hain, ye faisla kahan hoga, yeh sadkon par hoga”. This cannot be justified under any circumstances because if everything is decided on roads by creating more and more “Shaheen Baghs” then even God cannot save this nation from being plunged into more and more riots! Can we afford this?

Every Indian and every sane person on earth is shocked that how can anyone be allowed to block roads? How can they be allowed to block the road for such a long time? Will others not feel encouraged to follow suit?

Will tomorrow blocking of bridges, blocking of railways, blocking of airports also be justified similarly in the name of dissent? Will Supreme Court set up Committee to talk with them also? What sort of dissent is this? What trend has been set? It is beyond my comprehension!

You put other people to maximum inconvenience and justify it in the name of “dissent” and are allowed to do so for more than 81 days continuously! None other than Supreme Court sets up high powered Committee and accords VVIP treatment to those protesting at Shaheen Bagh which is still mocked at and the street protest continues unabated! The Apex Court said that it had perused a report submitted by the interlocutors deputed by it to negotiate with the protesters at Shaheen Bagh and added there are “too many ifs and buts” in it.

The Apex Court declined to pass any immediate direction saying “the environment is not conducive” and deferred the hearing to March 23.” What ensued in between was the deadly and ghastly riots which has shocked the world!  I fail to understand that why did the Supreme Court procrastinate by setting up Committee to talk with them and not order their immediate removal from road at Shaheen Bagh to some other place so that the traffic is not blocked? This obviously encouraged others to follow suit and what followed was worst riots since 1984 right at the heart of Delhi!

It must be pointed out here that when Justice KM Joseph pointed out that, “Look at the way the police in the UK or USA function. They (USA, UK police) do not have to wait for orders to act.” Pat came the reply from the Solicitor General Tushar Mehta that, “If the police here start working like the police in USA or UK, this court would be the first institution to come in between.” Mehta has a valid point! The Apex Court must introspect honestly on this!

No jurist and no Judge whether of High Court or of Supreme Court can ever justify such dissent because this is a crime and not dissent. Dissent has to be peaceful and it cannot be by blocking of roads and by chanting anti-national slogans of the worst kind and propagating to fulfill the dream of Jinnah to further break this nation to more pieces no matter how many Judges and Jurists may try to justify it one pretext or the other!

It is not for nothing that none other than Kerala Governor Arif Mohammad Khan while criticizing and condemning the brazen and undemocratic blockade of road at Shaheen Bagh minced no words to say that people sitting on roads and disrupting normal life to force their opinion on others is a form of terrorism! He was unequivocal in advocating that, “Aggression doesn’t come in the form of violence only. It comes in many forms…If you won’t listen to me, I will disrupt normal life. Dissent is the essence of democracy. There is no problem with that. But five people sit outside Vigyan Bhawan and say that we shall not move from here unless this Parliament of Students adopt a resolution which we would like them to adopt. This is another form of terrorism.” Who can deny or dispute this? No one!

I must recall here that my best friend Sageer Khan once while returning from mosque in 1993 looked disappointed. I asked him the reason. He said that there was no space inside mosque and he would never offer namaz on road as he never wanted to do anything by which another person faces problem! He was not prepared to be on road even for a short time as it would cause inconvenience to others! Now see that, on the contrary, what is actually happening at Shaheen Bagh! Shamelessly blocking national highway since last more than 81 days and yet not going away! How can anyone justify this on any ground? How can any country where “rule of law” is followed ever allow this under any circumstances?

Why Centre and Supreme Court have allowed this Shaheen Bagh to fester for so long? Why this case has not been decided at the earliest? Why Supreme Court by choosing not to pass an order of eviction from illegal occupation, but instead merely observing that roads are not meant to be indefinitely blocked for protests has left everyone hanging as pointed out in editorial titled “An immediate recourse needed” in Hindustan Times dated February 27, 2020? Supreme Court certainly has not covered itself with glory by not ruling decisively on this most promptly and its dilly-dallying approach only served others to hold more such protests at other places which finally culminated in many more such protests and which eventually resulted in riots and killings claiming nearly 50 lives and leaving more than 200 injured!

Faizan Mustafa who is Vice Chancellor of NALSAR University of Law, Hyderabad has also minced just no words to point out in ‘The Indian Express’ dated February 28, 2020 that, “By not hearing petitions on the constitutionality of the CAA, not taking cognizance of the inept handling by the Delhi Police of atrocities against the students, the Apex Court has overlooked the gravity of the situation.” Kapil Sibal who is a former Union Law Minister and also an eminent and top lawyer of Supreme Court too lamented that, “The judiciary has also not responded with alacrity and the kind of sensitivity expected of it. There was a time when it would have suo motu taken up the issue and ensured that engineered violence of this kind was dealt with expeditiously. In an age when the social media is replete with images that act as evidence, the courts could easily have taken up the matter, asked for a response overnight and ensured that possible acts of violence were nipped in the bud.” He also rightly pointed out that, “Nothing prevented the judiciary from suo motu taking action for the kind of speeches that were made with the intent to incite.”

It needs no rocket science to conclude that the protesters cannot sit on a public road or a public airport or a public rail track and cause blockade of cars or bus or train or aeroplane or helicopter! Just because they carry national flag or a copy of Constitution will not justify their illegal acts under any circumstances! This is what the Centre as also the Apex Court too has failed to appreciate! If they had appreciated then there would have been no blockade at Shaheen Bagh or at any other place under any circumstances!

When law applies equally to everyone then how can few women be allowed to publicly block national highway and public road as we saw shamefully in Shaheen Bagh? Why was it allowed to happen at the first place? Every person has right to protest but it cannot be by blocking of roads, blocking of rail tracks or blocking of airports etc!

This is what Supreme Court too apart from Centre has miserably failed to convey to those who are protesting at Shaheen Bagh! Attempts were made to replicate the same at Jaffrabad and other places and even metro rail stations were blocked and this resulted in clashes which should never have been allowed to take place at the first instance! Law has to be same for everyone and anyone who blocks roads must be made to evict it!

If police kowtows in front of them helplessly as we saw in Shaheen Bagh then they are bound to feel more emboldened and this only serves to create unrest in the place where roads are blocked as we saw in Delhi! What emboldens them most is that even Centre and Supreme Court do nothing to ensure that they are promptly removed from their illegal occupation of road connecting two states and two important cities – Noida and Delhi! What does it all boil down to? Huge violence on an unprecedented scale which resulted in the untimely loss of nearly 50 people till now apart from huge destruction of vehicles, property and buildings! Can our nation afford this again? How many times?

Sanjeev Sirohi