Author: Sanjeev Sirohi

Advocate

Jilting A Lover Is Not An Offence : Delhi HC Upholds Acquittal Of Rape Accused

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    It must be pointed out right at the outset that in a major and significant development, the Delhi High Court just recently on September 25, 2019 in State vs Sandeep CRI.I.P.532/2019 while upholding the acquittal of rape accused has clearly and categorically held that jilting a lover, however abhorrent that it may seem to some, is not an offence. Justice Vibhu Bakhru who authored this judgment held so while upholding the  acquittal of a man accused of raping a woman on the pretext of promise to marry. It was observed that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, cannot be said to be induced and involuntary, merely on the assertion that the other party has expressed its intention to get married.

To start with, the ball is set rolling in para 3 which is the first relevant para which states that, “The State has filed the present petition against a judgment dated 15.07.2019 passed by the learned Additional Sessions Judge. The said proceedings had commenced pursuant to the FIR bearing no. 679/2016 under Section 376 of the Indian Penal Code, 1860 (IPC), registered with P.S. Narela, on 13.09.2016.”

To put things in perspective, it is then pointed out in para 4 that, “The said FIR was lodged pursuant to the complaint made by Ms P (name withheld to avoid any ignominy). She has stated that she had developed a friendship with the accused (respondent herein) in the year 2013. And, over a span of two years the same transformed into a love affair. She stated that she had been meeting the accused regularly and he had promised to marry her.”

Furthermore, it is then stated in para 5 that, “She stated that on occasion, three months prior to 08.09.2016, he had invited her to his house to meet his mother. On visiting his house, she had found that his mother was not present and had gone to the house of respondent’s maternal uncle. She alleged that respondent had bolted the door and raped her despite her resistance. However, he had also promised to marry her and had asked her not to disclose the said incident to any other person.” Also, it is then stipulated in para 6 that, “She further alleged that the respondent had taken her to a hotel on 08.09.2016 and had thereafter, raped her. Although he had promised to marry her, he had resiled from his promise and had declined to do so.”

As it turned out, it is then revealed in para 7 that, “She had approached the police station on 13.09.2016, where her statement was recorded. She was, thereafter, medically examined in SRHC Hospital. However, she had declined any internal medical examination.” Further, para 8 then discloses that, “Ms P had deposed as PW2. Her parents (Raj Kumari and Brahm Dev) deposed as PW3 and PW4 respectively. One Sh. Sohan Pal, a friend of the respondent, had deposed as a defence witness (DW-1). He had testified that he knew the accused, as well as Ms P, and both of them had a love affair. He claimed that the accused had introduced Ms P to him in 2015. At the material time, she was undergoing a beautician’s course in Narela. He had testified that the accused wanted to marry Ms P, but Ms P’s father was opposed to the said liaison and therefore, their marriage could not be solemnised.”

Needless to say, para 9 then holds that, “The fact that the respondent had established a physical relationship with Ms P cannot be disputed. Indisputably, Ms P had checked into a hotel with the respondent at about 10:00 pm on 08.09.2016 and had checked out of the said hotel on 09.09.2016 at 08:00 am. Clearly, the respondent and Ms P had done so for physical initimacy. The Trial Court had rightly observed that the only question to be considered was whether Ms P had consented for the physical relationship under a false promise of marriage.”

What then ensues is elaborated upon in para 10 which states that, “After evaluating the evidence, the Trial Court had concluded that Ms P had established the physical relationship with the accused on account of love and affection and not on being induced by a promise of marriage.”

While elaborating in detail, it is then pointed out in para 11 that, “It is relevant to examine Ms P’s (PW-2’s) testimony. She had deposed that she was friends with the accused and in the year 2013, she had visited his house to be treated for stomach ache by his mother. She also stated that the accused had proposed to her within two months of meeting her. Thus, admittedly, the accused had evinced his intention to marry her more than two years before the alleged incident of the accused establishing physical relationship with her (which according to Ms P was established three months prior to the accused taking her to the hotel on 08.09.2016). This clearly established that the inducement of marriage – if the action(s) of the accused could be termed as such – was made more than two years and six months prior to the alleged rape. Ms P’s testimony that she had objected to the accused touching her obscenely but had yielded on him promising marriage, is difficult to accept. This is so because Ms P had stated that the accused proposed marriage to her two months after he met her. Considering Ms P’s testimony that she had gone to the house of the accused in 2013 to be treated by his mother and had spent about two hours there it is apparent that, according to her, the accused had proposed to her two years and six months prior to the first incident of alleged rape.”

Be it noted, para 12 then states that, “It is important to note that Ms P had unequivocally accepted in her cross examination that she and the accused were in love with each other and wanted to get married.” Para 13 then reveals that, “Ms P’s father (PW4) had deposed that in the year 2015, his daughter had told him about the respondent and the proposal for them to get married. He further stated that he was not agreeable to marriage between Ms P and the accused. This is also consistent with the testimony of DW-1. In her cross-examination, Ms P had admitted that her father was opposed to their marriage. Her mother (PW3) had also deposed that she did not want her daughter to get married to the accused.”

To put it succinctly, it is then observed in para 14 that, “In view of the above, the Trial Court concluded that the “accused cannot be held guilty for not marrying the prosecutrix because he and his family members were ready for the marriage but the parents of the prosecutrix did not want that their daughter should marry the accused”. Given the testimony of the witnesses, the conclusion that the accused and Ms P did not marry on account of the opposition from the family of the prosecutrix is certainly a plausible view. The only reservation that this Court has to the above conclusion of the trial court is the implicit assumption that the accused was alleged to be guilty of not marrying Ms P. The accused was not on trial for not marrying Ms P, but on an allegation of committing the offence of rape.”

Truth be told, it is then pointed out in para 15 that, “There is also an inherent inconsistency in the testimony of PW-4. Whilst he deposed that Ms P had informed him about her friendship with the accused in the year 2015; in his cross examination, he stated that he became aware of their friendship at the police station.”

What’s more, it is then written in para 16 that, “The Trial Court reasoned that if the accused had established physical relationship on account of the promise of marriage, she would have disclosed the same to her parents. This Court finds no infirmity with the said reasoning as well. If the accused had induced Ms P to have physical relations on the false promise to marry, she or her mother, on becoming aware, would have disclosed the same to her father.”

More importantly, it is then rightly underscored in para 17 that, “It is important to bear in mind that two consenting adults establishing a physical relationship, is not a crime. Jilting a lover, however abhorrent that it may seem to some, is also not an offence punishable under the IPC.”

To be sure, it is then made clear in para 18 that, “In so far as consent to engage in a sexual act is concerned, the campaign ‘no means no’, that was initiated in the 1990’s embodies a universally accepted rule: a verbal ‘no’ is a definite indication of not giving consent to engage in a sexual act. There is now wide acceptance to more ahead from the rule of ‘no means no’ to ‘yes means yes’. Thus, unless there is an affirmative, conscious and voluntary consent to engage in sex; the same would constitute an offence.”

Simply put, para 19 then says that, “In the present case, the prosecutrix claims that her consent was not voluntary but was obtained by inducing her on the pretext of a promise to marry. Plainly, this is not established in this case.”

It cannot be lost sight of that it is then narrated in para 20 that, “The prosecutrix had, three months after the first alleged incident of rape, voluntarily checked into a hotel with the accused. They had checked into the hotel at about 10:00 p.m. on 08.09.2016 and had checked out of the same, the next day at around 08:00 a.m. Clearly, this was a voluntary act. There is no merit in the contention that this act was induced by a promise of marriage.”

Most importantly, it is then most rightly pointed out in para 21 that, “Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. In certain cases, a promise to marry may induce a party to agree to establish sexual relations, even though such party does not desire to consent to the same. Such inducement in a given moment may elicit consent, even though the concerned party may want to say no. Such false inducement given with the intention to exploit the other party would constitute an offence. However, it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married.”

As things stand, it is then held in para 22 that, “In the present case, the prosecutrix appears to have used the allegation of inducement of physical relationship on the promise of marriage, to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed. The prosecutrix had refused an internal medical examination. In her testimony, she had done so because the accused had contacted her and again reiterated his promise to get married to her.”

Now coming to the concluding paras. It is held in para 23 that, “The Trial Court had evaluated the evidence on record. It had also found serious inconsistencies in the testimony of PW-4. In view of the above, the Trial Court had acquitted the accused.” Last but not the least, para 24 then holds that, “This Court finds no infirmity with the impugned decision. The petition is, accordingly, dismissed.”

All said and done, this notable judgment makes it absolutely clear that a woman cannot justify continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time only on the pretext of the man’s promising to marry him. There have been many such cases where we see a woman indulging in sex with a men for a long period of time with consent and later blaming men squarely for heinous offence of rape by just saying that he had promised to marry her. It is high time and our rape laws must be amended in this direction to check the growing abuse of law on this score and if this is not done then the Apex Court must intervene just like the adultery law was amended after the landmark judgment delivered by the Apex Court in 2018 in Joseph Shine vs Union of India! A woman who with consent indulges in sex with a men for a long period of time should not later be allowed to scream “rape”. This is precisely what the Delhi High Court also has very rightly reiterated in this noteworthy case also!

Sanjeev Sirohi,

Rights Of Victims And Society At Large Not Subservient To Rights Of Accused: SC

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It has to be said right at the outset that a two Judge Bench of the Apex Court comprising of Justice Navin Sinha and Justice BR Gavai just recently on October 4, 2019 in Fainul Khan vs State of Jharkhand and another in Criminal Appeal No(s). 937 of 2011 with Criminal Appeal No(s). 938 and 939 of 2011 has very rightly maintained that the rights of victim and society at large cannot be subservient to rights of accused. The accused certainly has the right to get a fair trial but what also cannot be denied is that the rights of victim and society at large cannot be accorded any inferior position. There has to be a fair and proper balance between the rights of victim and society at large on the one hand and the rights of the accused on the other hand.

To start with, this notable judgment authored by Justice Navin Sinha for himself and Justice BR Gavai first and foremost set the ball rolling by pointing out in para 1 that, “The appellants are aggrieved by their conviction under Section 302/149 of the Indian Penal Code (IPC) sentencing them to rigorous imprisonment for life, along with conviction under Sections 323/149 and 147 IPC, sentencing them to varied terms of imprisonment under the same. The sentences have been directed to run concurrently.” The appellants had high hopes that their sentence would be reduced. This alone explains why they preferred this appeal!

To recapitulate, it is then unfolded in para 2 that, “The occurrence is said to have taken place on 01.11.1983 at about 06.30 PM. The accused were variously armed with spears and lathis. P.W.7 and 8 are stated to be injured eye witnesses. P.W.6 also claimed to be an eye witness. The police report was lodged by P.W.8 at the hospital.”

While presenting the appellant’s version, it is then pointed out in para 3 that, “Learned Senior Counsel Shri Sidharth Luthra making the lead arguments on behalf of the appellants submitted that charge was framed under Sections 302/149 and 323/149 IPC against six persons. But the charge framed under Section 147 was defective being against four persons only and without the aid of Sections 141 and 146. It was next submitted that the appellants have been seriously prejudiced in their defence because proper opportunity to defend was denied under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) as the incriminating questions put to them were extremely casual and perfunctory in barely two pages. All relevant questions with regard to the accusations were not put to the appellants, denying them the opportunity to present their defence. It cannot be considered as a mere irregularity, to hold that no prejudice has been caused to the appellants. Emphasising the inconsistencies in the prosecution evidence it was submitted that P.W.7 claims lathi injury on his thigh and leg, but P.Ws6 and 8 are silent on the role of appellant Fainul Khan, and appellant Mir Shaukat is stated to have assaulted on the thigh of P.Ws.6 and 7 when according to the F.I.R. he hit on the head of P.W.8. Reliance in support of the submissions was placed on Masalti vs. State of U.P., AIR 1965 SC 202, Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 and Samsul Haque vs. State of Assam, (2019) SCC Online 1093; 2019 (11) SCALE 458.”

Furthermore, para 4 says that, “It was next submitted that P.W.6 was not an eye witness to the assault. He had arrived upon hearing the commotion after the appellants had left and the deceased was lying on the ground. P.W.6 also does refer to the presence of P.W.7 at the place of occurrence.” Also, para 5 then states that, “The evidence of P.Ws 6 and 8 to be injured eye witnesses was also challenged in absence of any injury report with regard to them. False implication of the appellants could not be ruled out in view of previous enmity having been admitted by the prosecution witnesses. P.W.8 deposed that the deceased was assaulted on his head from behind and fell on his face, but no facial injury has been found on the deceased.”

Not stopping here, it is then illustrated in para 6 that, “The deceased was assaulted with a spear by accused Siddiq and Zabbar. The allegations of assault by the appellants on the deceased with a lathi are omnibus, since only one bruise has been found on the upper arm. There existed no common object because in that event nothing prevented the appellants from individual assaults each on a sensitive part of the body of the deceased, such as the head. Alternatively, the three appellants at best may be liable for a lesser offence relying on Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh and Ors., (2017) 3 SCC 261.”

On the contrary, it is then pointed out in para 7 that, “Learned counsel for the State submitted that there was no lacunae in the examination of the accused under Section 313 Cr.P.C. In any event the appellants have not been able to demonstrate any prejudice. Moreover this objection cannot be raised at the present belated stage when it had not been raised at any earlier stage. Reliance was placed on Shobhit Chamar vs. State of Bihar, (1998) 3 SCC 455 and Fahim Khan vs. State of Bihar, (2011) 13 SCC 142.”

What’s more, it is then argued on behalf of the State by the learned counsel in para 8 that, “The absence of any injury report with regard to P.Ws.7 and 8 may at best be a case of defective investigation. It cannot discredit them as injured eye witnesses in view of the nature of their oral evidence and that of P.W.11, the officer-in-charge of the Kisko police station where the deceased and the injured were taken for treatment. There are concurrent findings with regard to the presence of the appellants. There is ample evidence of the appellants sharing a common object with the co-accused.”

After hearing both the parties, it is then observed by the Bench in para 9 that, “We have considered the submissions on behalf of the parties as also perused the materials on record. Originally there were six accused. Two of them have since been deceased and the fate of one is not known. Section 464, Cr.P.C provides as follows:-

“464. Effort of omission to frame, or absence of, or error, in charge. – (1) No finding, sentence or order by a Court of competent jurisdiction shall be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

xxx”

The appellants were well aware that six of them were charged together for a common assault under Sections 302/149 and 323/149 because of their sharing a common object. The appellants were also aware that two of the accused were carrying a deadly weapon, spears, and which were used for assault. We are therefore of the considered opinion that no prejudice has been caused to the appellants and the omission by the court in framing charge under Section 147 alone against four persons only was a mere inadvertent omission. The presence of one bruise injury on the deceased is also not considered relevant in the facts of the case. The objection about a defective charge, without any evidence of the prejudice caused, has been raised for the first time in the present appeal and for that reason also merits no consideration.”

Be it noted, it is then envisaged in para 10 that, “P.W.8 and the deceased were going together when they were surrounded and assaulted by the accused persons. We do not find any lacunae in the evidence or cross-examination of the witness to doubt his presence and the injuries suffered by him in the same occurrence. P.W.7, a resident of the locality and an independent witness also suffered injuries during the same occurrence. However, we are not satisfied that P.W.6 is an eye witness. The witness was at home and reached the place of occurrence after hearing the commotion by which time the deceased was lying on the ground. P.W.7 deposed that P.W.6 reached after him. P.W.7 deposed of assault by appellant Sainul upon P.W.8 with lathi and also upon the witness himself by appellants Fainul and Mir Shaukat causing injuries on his head and right hand. Appellant Mir Shaukat is also stated to have assaulted the witness on his thigh with lathi. P.W.8 deposed that the accused surrounded him and the deceased. Appellant Sainul assaulted the deceased on the head. The witness was assaulted on his face, head and hand with the lathi. Both the witnesses deposed that they were then taken to the hospital along with the deceased where their injuries were examined. P.W.8 during the course of his deposition also showed the scars caused to him by his injuries, noticed by the trial judge. The statement of the two witnesses is also stated to have been recorded at the hospital. The fact that there is no injury report, in our opinion, can at best be classified as a defective investigation but cannot raise doubts about the credibility of their being injured witnesses in the same occurrence. The fact that P.W.8 may be related to the deceased or previous enmity existed, are irrelevant in the facts of the case. P.W.11, the officer-in-charge of the Kisko police station where the deceased and injured were taken, has specifically deposed that he submitted a request for the injury report of the witnesses and pursuant to which their injury reports were made available to him. Only thereafter was the charge sheet submitted by him. We do not find any material in his cross-examination to discredit his statements.”

Briefly stated, para 11 then brings out that, “Section 313, Cr.P.C. incorporates the principle of audi alteram partem. It provides an opportunity to the accused for his defence by making him aware fully of the prosecution allegations against him and to answer the same in support of his innocence. The importance of the provision for a fair trial brooks no debate.”

While adding a caveat, it is then very rightly enunciated in para 12 that, “But equally there cannot be a generalized presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case including the nature of other evidence available, the kind of questions put to an accused, considered with anything further that the accused may state in his defence. In other words, there will have to be a cumulative balancing of several factors.”

Most importantly, it is then very rightly underscored further in this same para 12 that, “While the rights of an accused to a fair trial are undoubtedly important, the rights of the victim and the society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial.”

Needless to say, it is then also clarified in para 13 that, “In the facts of the present case, considering the nature of ocular evidence available of the injured witnesses P.Ws.7 and 8 who have also been cross-examined by the appellants, and the evidence of P.W.11, we are of the considered opinion that no prejudice has been caused to the appellants. A specific question was put to the appellants that they participated in an unlawful assembly with the common object of murdering the deceased. Further, it was also put to them that they had caused injuries to P.W.7 and 8. Merely because no questions were put to the appellants with regard to the individual assault made by each of them, it cannot be said in the facts of the case that any prejudice has been caused to them.” It is also made clear in this same para further that, “The appellants did not offer any explanation or desire to lead evidence except for stating that they had been falsely implicated.”

It would be imperative to now mention that it is then stated in para 17 that, “In view of the above discussion we regret our inability to consider the alternative submission of Shri Luthra. The appellants were undoubtedly the members of an unlawful assembly some of whom were also armed with spears and assaulted the deceased. All the accused surrounded the deceased obviously to prevent his escape. The initial assault was made on the head of the deceased with the lathi by appellant Sainul. The deceased fell down and when he was trying to stand up, he was assaulted by two persons with spears. P.W.7 was assaulted on the head by appellant Fainul. In the fracas the fact that the assault by appellant Mir Shaukat landed on the thigh of the witness is not of much relevance. Likewise, P.W.8 was assaulted by appellant Sainul on the face and head. The fact that the co-accused may have assaulted on the head again cannot be considered very relevant to eschew the absence of common object.”

Finally, it is then held in the last para 18 that, “We, therefore, find no reason to interfere with the conviction of the appellants. The appeals are dismissed. The appellants are stated to be on bail. Their bail bonds are cancelled and they are directed to surrender forthwith to serve out remaining period of sentence.”

We thus see that the appellants appeals fail to find any favour with the top court. We also see that the Bench gives fair and adequate reasons for rejecting their appeals. So their bail bonds also stand cancelled! They have now no option but to surrender forthwith and serve out the remaining period of sentence which is indispensable now!

To sum up, it is a very well balanced and well written judgment which makes it absolutely clear that while it is true that the accused has a right to get a fair trial which is very important also but what is equally important is that the rights of the victim and also the society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial. There has to be a proper balance which is what has been underscored also very aptly by the top court in this noteworthy case also! Very rightly so!

Sanjeev Sirohi

Inherent Powers Under Article 142 Can Be Invoked To Dissolve Marriage Which Has Broken Down Irretrievably: SC

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                              In a latest and interesting development, we have seen just how recently on October 4, 2019, the two Judge Bench of Apex Court comprising of Justice Sanjay Kishan Kaul and Justice MR Shah in a laudable and landmark judgment titled R Srinivas Kumar v. R Shametha in Civil Appeal No. 4696 of 2013 has once again reiterated explicitly and elegantly that it can exercise its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where it finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. This has been observed earlier also many times by the Apex Court in its various judgments where it had invoked this Article 142 of the Constitution to dissolve the marriage! Earlier in this case the High Court had rejected the plea of a husband who sought a decree of divorce on the ground of irretrievable breakdown of marriage.

                                       To start with, this noteworthy judgment authored by Justice MR Shah for himself and Justice Sanjay Kishan Kaul sets the ball rolling in para 1 wherein it is pointed out that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.02.2012 passed in C.M.A. No. 4142 of 2003 by the High Court of Judicature Andhra Pradesh at Hyderabad, by which the High Court has dismissed the said appeal preferred by the appellant-husband and has confirmed the judgment and order passed by the learned Family Court refusing to pass a decree of divorce against the respondent-wife, the appellant-husband has preferred the present appeal.”

                                  To recapitulate, it is then pointed out in para 2 that, “That the marriage of the appellant and the respondent took place on 09.05.1993. That out of the said wedlock, the respondent gave birth to a male child on 29.08.1995. It appears that there were differences of opinion between the parties and according to the appellant-husband, cruelty was meted out to him. Up to 1997, many a times, the respondent-wife stayed at her parental house. The appellant-husband filed a divorce petition in the year 1999 being O.P. No. 157 of 1999 before the Family Court at Hyderabad. That the said petition was filed for a decree of divorce against the respondent-wife under Section 13(1)(a) and (b) of the Hindu Marriage Act, 1955. That the learned Family Court dismissed the said divorce petition by observing and holding that the appellant-husband has failed to prove the cruelty by the respondent-wife. The Family Court also referred to pass a decree of divorce on the ground of irretrievable breakdown of marriage.”

                                  Furthermore, it is then pointed out in para 2.1 that, “Feeling aggrieved and dissatisfied with the judgment and order passed by the Family Court at Hyderabad dated 04.09.2003 in O.P. No. 157 of 1999 dismissing the divorce petition, the appellant-husband preferred an appeal before the High Court. Before the High Court also, the appellant-husband sought a decree of divorce on the ground of irretrievable breakdown of marriage. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the appellant-husband is before this Court by way of the present appeal.”

                                  After hearing the learned counsel for the respective parties at length, it is then held in para 5.1 that, “At the outset, it is required to be noted and does not seem to be in dispute that since last 22 years both the appellant-husband and the respondent-wife are residing separately. It also appears that all efforts to continue the marriage have failed and there is no possibility of re-union because of the strained relations between the parties. Thus it appears that marriage between the appellant-husband and the respondent-wife has irretrievably broken down. In the case of Hitesh Bhatnagar (supra), it is noted by this Court that Courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage and all efforts are made in that regard and when the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair.”

                                     More crucially, it is then rightly held in para 6 that, “Now so far as submission on behalf of the respondent-wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce. In that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.”

                              What’s more, it is then enunciated in para  7   that, “This Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. In the present case, admittedly, the appellant-husband and the respondent-wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent-wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 of the Constitution of India and to dissolve the marriage between the parties.”

                                       Most importantly, it is then held in para 8 that, “In view of the above and for the reasons stated above, the application for divorce filed by the appellant-husband for dissolution of marriage is hereby allowed. The marriage between the appellant-husband and the respondent-wife is ordered to be dissolved in exercise of powers under Article 142 of the Constitution of India on the condition and as agreed by the learned Senior Advocate appearing on behalf of the appellant-husband that the appellant-husband shall pay to the respondent-wife a lump sum permanent alimony, quantified at Rs 20,00,000/- (Rupees Twenty Lakhs) to be paid directly to the respondent-wife by way of demand draft within a period of eight weeks from today. Till the permanent alimony as above is paid to the respondent-wife, the appellant-husband to continue to pay the maintenance as being paid to her.” Lastly, it is then held in para 9 that, “The appeal is allowed in the aforesaid terms. No costs.”

                                   In summary, it may well be said that the Apex Court has once again reiterated that the inherent powers under Article 142 of the Constitution can be invoked to dissolve marriage which has broken down irretrievably. There is no point in continuing a marriage which has broken down irretrievably. The best option in such cases is to allow the parties to separate from each other and this is what has been allowed by the top court in this leading case also even though the facts of the case do not provide a ground in law on which the divorce could be granted! No denying it!

Sanjeev Sirohi, Advocate

High Court Of England And Wales Rejects Pak’s Claim

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                                     In a major legal setback to Pakistan, the High Court of England and Wales has given an extremely landmark and laudable judgment on October 2, 2019 after a long drawn out legal battle that dates back to 1948 rejecting rightly Pakistan’s frivolous claims and ruling explicitly that the VII Nizam of Hyderabad’s descendants and India can collect 35 million pounds from London’s National Westminster Bank. Thus the decades old legal battle has now finally culminated in India’s favour! Very rightly so!

Needless to say, this historic verdict has left Pakistan red faced and has left India with a big smile on its face! Justice Marcus Smith of the High Court of England and Wales who authored this extremely wonderful judgment has rightly ruled that the 35 million pounds that is about Rs 306 crore deposited in the London Bank rightfully belonged to the Nizam’s family and India and threw out the frivolous claims made by Pakistan through its High Commissioner in London. It also made it clear in its noteworthy judgment that the funds worth 1 million pounds (now 35 million pounds) were sent by the erstwhile Nizam Asaf Jah to Pakistan for “trust for safekeeping” and that their ownership vested in the Nizam himself.

It may be recalled  that at the time of partition in 1947, the then Nizam Asaf Jah had sent the said funds to the then Pakistan High Commissioner for London for safekeeping of independent princely state of Hyderabad, in case of invasion from India. Subsequently, however, the Nizam claimed that he had not authorized the transfer and sought the return of the amount. Nevertheless, the request came to be denied by the NatWest Bank at UK, where the funds were kept, which said that the fund could be released only on an express agreement of Pakistan which held the legal title to the funds.

As it turned out, we saw how consequently the Nizam whose legal claims were fully backed by the Indian government took legal recourse and issued proceedings against the bank which ultimately failed due to Pakistan’s sovereign immunity. However, what went later in India’s and Nizam’s favour was that this obstacle was finally removed in 2013 when Pakistan claimed ownership of the fund and submitted a claim, thereby waiving its sovereign immunity. The matter was thus then placed before the High Court of Justice Business and Property Courts of England and Wales which finally culminated in this extremely laudable and landmark judgment!

Truth be told, Justice Marcus Smith in his landmark judgment explicitly held that, “Nizam VII was beneficially entitled to the Fund and those claiming in right of Nizam VII – the Princes and India – are entitled to have the sum paid out to their order. I will leave it to the parties to frame an appropriate form of order for my approval.” The Ministry of External Affairs (MEA) while hailing the noteworthy verdict that upheld India’s claim and which also rejected Pakistan’s contention that the Nizam had transferred the funds as a gift or as payment for a shipment of arms. The MEA statement also said that, “The Court has issued a wide-ranging judgment today after analyzing documentation going back more than 70 years and embracing the law of constructive and resulting trusts, unjust enrichment, foreign act of state, illegality and limitation of actions,” adding further that the court “rejected arguments advanced by Pakistan that the dispute was non-justiciable, either in whole or in part; that the doctrine of illegality somehow barred recovery; or that the claims of other parties were time barred.”

To recapitulate, this historic case pertains to the transfer of 1,007,940 pounds (now worth 35 pound million) and nine shillings by the Nizam’s envoy and Foreign Minister in London – Moin Nawaz Jung, on September 16, 1948 to Pakistan when the Indian Army’s tanks were closing in on Hyderabad from all directions. Moin Nawaz Jung transferred the money to the account of Habib Ibrahim Rahimtoola, the High Commissioner of Pakistan in London, which the bank processed on September 1948. However, Hyderabad’s armed forces had already surrendered to General JN Chowdhury on September 17, 1948 after a military operation known as “Operation Polo”.

What then unfolded was that within days of surrender, the Nizam sent a message to the National Westminster Bank demanding the money to be transferred back to his account. Pakistan also claimed the money with its tall claims. The case has seen many twists and turns over the years before it finally ended in India’s favour! In 1965, the Nizam assigned to the President of India, his claim to the fund and joined forces with India to fight for his claim on the money. It is unclear however as to how the fund will be divided.

Not surprising that Pakistan while fulminating said that the judgment had not taken into account the “historical context” that led to the Nizam transferring the money to Pakistan’s high commissioner in London, in order to protect his state from “Indian invasion”. The Pakistan’s Ministry of Foreign Affairs said that, “Pakistan is closely examining all aspects of the detailed judgment and will take further action in light of legal advice received.” This present case was first instituted by Pakistan in 2013 against the bank to transfer the money to Pakistan.

What’s more, Pakistan’s claim rested squarely on the premise that the money was transferred for the weapons supplied by the country to the Nizam. The court relied on the testimony of Prince Muffakam Jah who was the brother of the seventh Nizam, documentary evidence as well as public documents produced by India and Pakistan. Paul Hewitt who was partner in Withers LLP, who has acted for the VIII Nizam since Pakistan issued proceedings in 2013 was quoted as saying that, “Our client was still a child when the dispute first arose and is now in his 80s. It is a great relief to see this dispute finally resolved in his lifetime.”

Let us now briefly have a cursory look at the summary of the judgment. The salient points here are worth mentioning. It is held that, “I conclude that Pakistan’s illegality arguments fails for the following reasons:-

1. First, India is indeed correct in her assertion that the question of illegality is “analytically irrelevant” to the claim to the Fund advanced by India.

2. Secondly, even if the question of illegality were relevant to India’s claims, the Settlement between the Princes and India has rendered the issue irrelevant because the rival claims to the Fund of the Princes and India have validly been compromised, such that the question of illegality is no longer before the Court.

3. Thirdly, there is no illegality alleged that is sufficient to cause this Court to prevent the Princes and India – specifically India – from asserting her claim to the Fund.”

Conclusions and Disposition

Finally and most importantly, this elegant and excellent judgment authored by Justice Marcus Smith in his conclusions and disposition sums up by saying that, “I conclude that:

(1) The Fund was held by Pakistan through her High Commissioner in the United Kingdom on trust for Nizam VII and his successors in title. The Fund was not held by Rahimtoola personally, nor did either Pakistan or Rahimtoola have any beneficial interest in the Fund.

(2) The trust was either a constructive trust in favour of Nizam VII or a resulting trust in favour of Nizam VII. It was not, as I have found, an express trust because I find that Nizam VII did not communicate to Moin any authority to effect the Transfer and create a trust. However, Moin’s conduct was consistent with the unexpressed wishes of Nizam VII. Both Moin and Rahimtoola intended that an express trust should arise and – had there been a communication of authority by Nizam VII to Moin – an express trust would have arisen.

(3) There is nothing in the involvement of Pakistan, India, Hyderabad or Nizam VII as sovereign states or rulers of sovereign states to prevent a trust (whether express, constructive or resulting) from arising.

(4) It is unnecessary, given the Settlement reached as between the Princes and India, for me to determine whether it is the Princes or India that is Nizam VII’s successor in title, whether by virtue of the 1963 Settlement and 1965 Appointment (in the case of the Princes) or the 1965 Assignment (in the case of India). However, it is appropriate to record that the Nizam’s successor in title can be no-one other than the Princes or India. The administrator of Nizam VII’s estate (Mr Lintott) was a party to these proceedings and was given every opportunity to bring a rival claim to those of the Princes and India; he did not do and is bound by the outcome of these proceedings. It is also appropriate to record that during the course of these proceedings, I have seen no hint of the possibility of any further claimant to the Fund beyond the Princes and India.

(5) The Princes’ and India’s alternative claims in restitution succeed against (i) Pakistan and (ii) in the alternative, the Bank. I find that Pakistan’s assertion of a defence of limitation is an abuse of the process of the court and order that the paragraphs in Pakistan’s statements of case asserting this defence be struck out. The Bank never pleaded a defence of limitation, and I find that a claim in restitution is properly maintainable against the Bank.

(6) Pakistan’s contention of non-justiciability by reason of the foreign act of state doctrine and non-enforceability on grounds of illegality both fail.”

It is then also rightly held in para 341 that, “In these circumstances, Nizam VII was beneficially entitled to the Fund and those claiming in right of Nizam VII – the Princes and India – are entitled to have the sum paid out to their order. I will leave it to the parties to frame an appropriate form of order for my approval.”

No doubt, it is a very well written, well drafted and superb 140-page extremely landmark and laudable judgment which rightly rules in favour of the Nizam VII and India and rejects strongly all the frivolous claims made by Pakistan! Pakistan must be gracious enough to accept this extremely landmark and historic verdict by the High Court of England and Wales but that it can never be! In spite of knowing fully well that its tall claims hold no legal basis still it chose to knock the door of the High Court of England and Wales. The result it got is now before all of us to see for ourselves! Pakistan has every reason on earth to sulk as its tall claims of ‘arms-for-money’ argument and ‘safeguarding-the-money’ argument got rejected as it did not cut much ice with the Judge and India and Nizam of Hyderabad have every reason to celebrate as their logical stand got the full backing of the court and it was ruled that the money must go to the Nizam’s descendants and India! India had earlier tried to settle the lingering dispute amicably but Pakistan never cooperated and so no mutually agreed solution could be arrived at!

Sanjeev Sirohi

Independence And Fearlessness Of Judiciary Not Only Expected From Superior Courts But Also From District Judiciary: SC

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                                      It is most pleasing, most heartening and most refreshing to learn that the highest court of India that is the Supreme Court has most recently on September 26, 2019 in a latest, landmark and extremely laudable judgment titled Krishna Prasad Verma (D) Thr. LRs Vs State of Bihar & Ors in Civil Appeal No. 8950 of 2011 has minced absolutely no words to underscore clearly, convincingly and categorically the independence, sanctity and fearlessness of judiciary. No nation can function smoothly where judiciary does not function independently. While quashing disciplinary action taken against a judicial officer, the Supreme Court took a strong and commendable stand that independence and fearlessness of judiciary is not only expected at the level of the superior courts but also from the district judiciary.

To start with, this extremely commendable judgment authored by Justice Deepak Gupta (oral) for himself and Justice Aniruddha Bose in its introductory part that is para 1 of this judgment sets the flow by first and foremost observing most rightly that, “In a country which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District judiciary.” Who can deny this? All those who form a part of the District judiciary must also always bear this in mind while deciding cases!

While continuing in the same vein and taking it further, it is then pointed out in para 2 that, “Most litigants only come in contact with the District judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District Level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever.”

To be sure, it is then further pointed out in para 3 that, “Article 235 of the Constitution of India vests control of the subordinate Courts upon the High Courts. The High Courts exercise disciplinary powers over the subordinate Courts. In a series of judgments, this Court has held that the High Courts are also the protectors and guardians of the judges falling within their administrative control. Time and time again, this Court has laid down the criteria on which actions should be taken against judicial officers. Repeatedly, this Court has cautioned the High Courts that action should not be taken against judicial officers only because wrong orders are passed. To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order.”

It is remarkable to note that the top court in this extremely landmark judgment has very candidly admitted in para 3 that to err is human and made it amply clear that no Judge of Supreme Court also can claim that he/she has never passed a wrong order! This is really laudable and all Judges even of the Supreme Court and even the Chief Justice of India must always remember this! There can be no denying it!

Needless to say, it is then also however, made absolutely clear in para 4 that, “No doubt, there has to be zero tolerance for corruption and if there are allegations of corruption, misconduct or of acts unbecoming a judicial officer, these must be dealt with strictly. However, if wrong orders are passed that should not lead to disciplinary action unless there is evidence that the wrong orders have been passed for extraneous reasons and not because of the reasons on the file.”

Briefly stated, it is then held in para 5 that, “We do not want to refer to too many judgments because this position has been laid down in a large number of cases but it would be pertinent to refer to the observations of this Court in Ishwar Chand Jain Vs. High Court of Punjab & Haryana and another, (1988) 3 SCC 370, wherein this Court held as follows:

“14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by Shri Mehlawat and others were motivated which did not deserve aany credit. Even the vigilance Judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments.””

As a corollary, it is then laid down in para 6 that, “Thereafter, following the dicta laid down in Union of India & Ors. Vs. A.N. Saxena, (1992) 3 SCC 124 and Union of India & Ors. Vs. K.K. Dhawan, (1993) 2 SCC 56, this Court in P.C. Joshi Vs State of U.P. & Ors. (2001) 6 SCC 491, held as follows:

“7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best, he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan case and A.N. Saxena case that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case.””

While endorsing this again, it is then pointed out in para 7 that, “In Ramesh Chander Singh Vs. High Court of Allahabad & Anr. (2007) 4 SCC 247, a three-judge Bench of this Court, after considering the entire law on the subject, including the authorities referred to above, clearly disapproved the practice of initiating disciplinary proceedings against the officers of the district judiciary merely because the judgment/orders passed by them are wrong.”

More importantly, it is then made clear in para 8 that, “No doubt, if any judicial officer conducts proceedings in a manner which would reflect on his reputation or integrity or there is prima facie material to show reckless misconduct on his part while discharging his duties, the High Court would be entitled to initiate disciplinary cases but such material should be evident from the orders and should also be placed on record during the course of disciplinary proceedings.”

On a different note, it is then pointed out in para 9 that, “Coming to the facts of this case there are two charges against the appellant, who was a judicial officer. The charges are as follows:

CHARGE-1

“You, Sri Krishna Prasad Verma while functioning as Additional Distt. & Sessions Judge, Chapra granted bail to M/s Bishwanath Rai and Pradeep Rai on 11.7.2002 in S.T. No. 514 of 2001 arising out of Chapra (M) Khatra P.S. Case No. 453/2000 registered U/s 302/34 I.P.C. notwithstanding the fact that the bail petitions of Bishwanath Rai was earlier rejected by this Hon’ble Court vide order dated 27.3.2001 and 4.7.2001 passed in Cr. Misc. No. 34144/2000 and 15626/2001 respectively, that of Sheo Nath Rai vide order 13.2.2001 and 26.11.2001 passed in Cr. Misc. No. 3387/2001 and Cr. Misc. No. 30563/2001 respectively and that of Pradeep Rai vide order dated 28.2.2001 passed in Cr. Misc. No. 3599/2001.

The aforesaid act on your part is indicative of some extraneous consideration which tantamount to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an act unbecoming of a Judicial Officer.

CHARGE-2

You, Sri Krishna Prasad Verma while functioning as Additional District and Sessions Judge, Chapra with an intent to acquit Raju Mistry, the main accused in N.D.P.S. Case No. 15/2000 arising out of Revealganj P.S. Case No. 137/2000 (G.R. No. 1569 of 2000) registered under sections 22, 23 and 24 of the Narcotics Drugs and Psychotropic Substances Act, 1985 closed the proceeding in great haste resulting in acquittal of Raju Mistry, who was charged of driving a Jeep bearing No. W.B.C. 4049 carrying 90 Kg. Charas, without exhausting all coercive methods to record the statement of the Investigating Officer of the case as there is no proof on the record to show that the non-bailable warrant issued against the said Investigating Officer was ever served on him.

The aforesaid act on your part is indicative of some extraneous consideration which tantamount to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an act unbecoming of a Judicial Officer.””

To put things in perspective, it is then elaborated upon in para 10 that, “As far as the first charge is concerned, a major fact, which was not considered by the enquiry officer, the disciplinary authority as well as the High Court was that the Additional Public Prosecutor, who had appeared on behalf of the State had not opposed the prayer of the accused for grant of bail. In case, the public prosecutor does not oppose the bail, then normally any Judge would grant bail.”

What’s more, it is then stated in para 11 that, “The main ground to hold the appellant guilty of the first charge is that the appellant did not take notice of the orders of the High Court whereby the High Court had rejected the bail application of one of the accused vide order dated 26.11.2001. It would be pertinent to mention that the High Court itself observed that after framing of charges, if the non-official witnesses are not examined, the prayer for bail could be removed, but after moving the Lower Court first. The officer may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. It would be pertinent to mention that the enquiry officer has not found that there was any extraneous reason for granting bail. The enquiry officer virtually sat as a court of appeal picking holes in the order granting bail.”

Be it noted, it is then illustrated in para 12 that, “It would be important to mention that it seems that later it was brought to the notice of the appellant that he had not taken note of the order of the High Court while granting bail on 11.07.2002. Thereafter, he issued notice to all the three accused on 23.08.2002 i.e. within less than two months and cancelled the bail granted to all the three accused on 11.07.2002. If he had made the mistake of not seeing the whole file, on that being brought to his notice, he corrected the mistake. After the appellant cancelled the bail and the accused were again arrested, they again applied for bail and this bail application was rejected by the appellant on 18.12.2002.”

What we then see being unearthed is pointed out in para 13 that, “After rejection of the bail application of the accused, two out of three accused moved the High Court. The High Court granted bail to one of the accused and the bail application of the other was rejected, not on merits but on the ground that he did not disclose the fact that he had earlier moved the High Court for grant of bail. This itself is clear indicator of the fact that probably even the order passed by the appellant is not an incorrect one.”

Moving on, it is then further pointed out cogently in para 14 that, “Coming to the second charge, which is under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS”). On 18.07.2002 the appellant, a Special Judge, closed the evidence of the prosecution which resulted in material witnesses not being examined and consequently the accused was acquitted. As far as this obligation is concerned, the enquiry officer on the basis of the statements of two clerks of the Court has made lengthy observations that the appellant did not send any communication to the Superintendent of Police, the District Magistrate and other authorities to ensure the production of the witnesses. According to the enquiry officer, this being a serious matter, the evidence should not have been closed and the appellant should have made efforts to approach the senior officials to get the witnesses produced. The Code of Criminal Procedure or the NDPS Act do not provide for any such procedure. It is the duty of the prosecution to produce the witnesses. Even in this case, interestingly, the Public Prosecutor had made a note on the side of the daily order-sheet that he is unable to produce the witnesses so the evidences may be closed. We fail to understand how the appellant has been hanged whereas no action has been taken or recommended against the Public Prosecutor concerned. We are constrained to note that the enquiry officer, while conducting the enquiry, has noted, while considering the arguments of the delinquent official, that he had raised a plea that he closed the evidence because the Public Prosecutor had made the statement, but while holding the appellant guilty of misconduct no reference has been made to the statement of the Public Prosecutor.”

Interestingly enough, it is then enunciated in para 15 that, “We may also note that the case of the appellant is that he had given 18 adjournments for production of the witnesses to the prosecution in the NDPS case. Such a judicial officer is between the devil and the deep sea. If he keeps on granting adjournments then the High Court will take action against him on the ground that he does not dispose of his cases efficiently and if he closes the evidence then the High Court will take action on the ground that he has let the accused go scot-free. That is not the purpose of Article 235 of the Constitution of India. That is why we again repeat that one of the responsibilities of the High Court on the administrative side is to ensure that the independence of the District judiciary is maintained and the High Court acts as a guardian and protector of the District judiciary.”

More consequentially, it is then enunciated in para 16 that, “We would, however, like to make it clear that we are in manner indicating that if a judicial officer passes a wrong order, then no action is to be taken. In case a judicial officer passes orders which are against settled legal norms but there is no allegation of any extraneous influences leading to the passing of such orders then the appropriate action which the High Court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the concerned judicial officer. Once note of the wrong order is taken and they form part of the service record these can be taken into consideration to deny selection grade, promotion etc., and in case there is a continuous flow of wrong or illegal orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules. We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect.”

Finally, it is then held in the last para 17 that, “In view of the above discussion, we allow the appeal, set aside the judgment of the High Court and quash all the orders passed against the delinquent officer. He is directed  to be given all consequential benefits on or before 31.12.2019. The appeal is allowed with costs of Rs 25,000/-.”

In summary, it is a very well written judgment which leaves no room for doubt whatsoever! All the Judges of the District Judiciary must abide in letter and spirit what has been held so rightly and brilliantly in this extremely landmark judgment by the top court! All the Superior Courts must also follow it and respect the District judiciary as directed in the said order!

Sanjeev Sirohi

Article 370 And Article 35A Are Nothing But Treacherous

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 “Mr Abdullah, you want that India should defend Kashmir. You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India, but you don’t want India and any citizen of India to have any rights in Kashmir and Government of India should have only limited powers. To give consent to this proposal would be a treacherous thing against the interests of India, and I, as the Law Minister of India, will never do. I cannot betray the interests of my country.”

–        Dr BR Ambedkar cited as saying in the book ‘Dr BR Ambedkar Framing Of Indian Constitution’ by Dr SN Biusi

To start with, Dr BR Ambedkar who is the founding father of our Constitution and the first Union Law Minister of India  was absolutely shell shocked to hear the absurd proposal that no Indian would be allowed to settle in Jammu and Kashmir nor be allowed to buy any property there or apply for any job there under the garb of protecting people from Jammu and Kashmir! Not just this if any woman from J&K marries anyone outside the state she would lose all her rights and if she marries someone from Pakistan then she would lose no rights and the Pakistani men would gain all the rights! Nothing on earth can be more disgraceful than this and this we see Dr Ambedkar reflecting in his words also!

To be sure, Dr Ambedkar stoutly opposed granting the special status to Jammu and Kashmir. He also opposed Article 370 as he knew that it would be detrimental to our country’s national interests and separate flag, separate Constitution, separate citizenship, separate law would only encourage more secession and separatism and that is what has happened in last 72 years!    We all have seen for ourselves how the entire nation bursted in joy and Indians living all across the globe also celebrated hugely the abrogation of Article 370 and Article 35A of the Constitution after the President gave his approval to the same! Union Home Minister Amit Shah who tabled the Jammu and Kashmir Reorganisation Bill, 2019 and the statutory resolutions in Rajya Sabha around 11 am after the Union cabinet met at Prime Minister Narendra Modi’s residence at 9.30 am to grant the go-ahead said that, “Article 370 was a temporary provision…how long can a temporary provision be allowed to continue…After abrogation of Article 370, Jammu and Kashmir will truly become an integral part of India.” Saying Article 370 was at the root of terrorism, Amit Shah told the House that full state status will be restored to Jammu and Kashmir at an appropriate time when normalcy returns. He rightly said that the decision to do away with the special status of J&K and to bifurcate the state into two UTs was in the supreme national interest! No denying it!

As it turned out, Amit Shah rose to place four matters before the Rajya Sabha which are as follows:-

1.  Constitution (Application to Jammu & Kashmir) Order, 2019 issued by President of India to supersede the 1954 order related to Article 370.

2.  Resolution for the repeal of Article 370 of the Constitution of India.

3.  Jammu & Kashmir (Reorganisation) Bill, 2019 by which Jammu and Kashmir which earlier was a state was now proposed to be converted to two Union Territories – Jammu and Kashmir with legislature and Ladakh without a legislature.

4.  Jammu & Kashmir Reservation (Second Amendment) Bill, 2019 providing for 10 percent reservation for SC, ST and OBCs in J&K

Eminent jurist and senior Supreme Court advocate Mohan Parasaran who is also the former Solicitor General of India candidly says that, “From a personal point of view, the GoI needs to be congratulated for uniting the country, as there was always a feeling that Jammu and Kashmir was truly not part of India, but part of the nation for historical purposes. This was exploited by politicians, and led to communal forces gaining control, post-Independence, and terrorism taking a lead role. Keeping aside the legal issues, the GoI’s intention has to be appreciated as one which is to bolster the sovereignty and integrity of the country.”

It is for the first time that we saw even many opposition parties supporting the Centre’s move. Even though Congress party opposed it but many of its tall leaders openly hailed it and former Union Law Minister Ashwani Kumar even termed it as a daring move!    No doubt, the scrapping of Presidential proclamation of 1954 by the Constitution (Application to Jammu and Kashmir) Order, 2019 which was passed on August 5 in concurrence with the Government of the State of Jammu and Kashmir with immediate effect is the most boldest step by any government in India since independence! This is a more bolder step than even surgical strikes of 2016 or the Balakot air strikes! This alone explains that why even Sushma Swaraj who was the former Union External Affairs Minister and who expired just recently before dying left a most memorable tweet in which she expressed her utmost happiness in the following words, “Thank you Prime Minister. Thank you very much. I was waiting to see this day in my lifetime.”

Finally and most importantly, the integration of Jammu and Kashmir with India is now full and final! No country has no business to comment on our internal affairs! UK should mind its own business and set its own house in order before pointing fingers at India as rightly advised by Naomi Canton who herself a British citizen very rightly said that, “India, to its credit, has stayed neutral on Brexit, saying it is a sovereign matter, even indicating a favourable post-Brexit trade deal. Yet several British MPs have felt the right to publicise their views on Kashmir. Would British people expect Indian MPs to write to Prime Minister Narendra Modi and the UN asking both to intervene in Brexit? Will New York Times or Guardian demand that non-Muslims should not be allowed to settle in these locations in Detroit or Bradford where there is a majority of Muslim inhabitants? If the editors find such an idea absurd, why are they backing it in India? It is an inconvenient truth that those British MPs who say that “the removal of Artticle 370 betrays the trust of the people of Jammu and Kashmir” are the same people who wish to ignore the results of the 2016 EU referendum. Jammu and Kashmir will become two Union Territories on October 31 on exactly the same day the UK will leave the EU.”

No doubt, China should also first itself vacate the territory of Jammu and Kashmir illegally ceded by Pakistan to it and not lecture us! Similarly Pakistan should also vacate the area of Jammu and Kashmir which is in its illegal occupation! It is heartening to note that the UN also refused to intervene in between when Pakistan pleaded before it! Article 370 and Article 35A only were serving as weapons to further the dangerous, dubious and deplorable agenda of Pakistan to alienate the people of Jammu and Kashmir from the rest of India and this alone explains why it fumed and fulminated most when it was scrapped and so it is absolutely right that both these articles have been virtually dumped now!

It gives a great deal of satisfaction to note that the integration of Jammu and Kashmir with India is now full and final! The whole world has to come to terms with this now! US has already accepted this and places India on a developed nation club akin to that of China! Can anyone deny this?

Also, now Jammu and Ladakh will also develop more as more funds will be allotted for their development and it is not just Kashmir alone which will corner away all the major part of the package meant for the entire state! This is truly commendable! All Indians must bury their petty differences and unite together in supporting Centre for taking such a bold and beautiful initiative that even leaders from opposition parties cutting across party lines have chosen to endorse it differing even from their own party line! Ajit Pawar who is nephew of Sharad Pawar of NCP has also openly supported it.

Many regional parties like AAP, BSP, TDP, BJD and many others have also supported it openly! Mukul Rohatgi who is former Attorney General of India and an eminent and senior Supreme Court lawyer was quite outspoken in saying that, “If the President can issue order under Article 370 he can also withdraw it by the same route!” Very rightly so! Pakistan has no business in meddling in India’s internal affairs and Imran Khan himself has candidly confessed that the whole world is standing with India on such a sensitive issue! This is because India’s stand is justified and India has not done anything which can attract opprobrium!

Sanjeev Sirohi,

Strictest Punishment For Mob Lynching Needed Now Most

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                                                 It has to be said right at the outset that mob lynching cannot be justified on any pretext and under any circumstances come what may! There has to be zero tolerance for it but right now we see that the perpetrators of the crime are either escaping with just no punishment or are being punished on a very lenient basis thus making a complete mockery of our country on the world stage! It merits no reiteration that this must be set right now.

What message are we sending to the world if we don’t ensure that mob lynchers are promptly punished with most appropriately death penalty or at the least with life imprisonment for at least 25 years in jail without any parole or remission of any kind whatsoever? How can mob lynching be justified by anyone under any circumstances? Are we living in Talibani India? Certainly not!

Every year we get to hear many incidents of mob lynching but when do we hear that mob lynchers have been mob hanged or mob jailed for life! Centre must now wake up and act on this immediately. I rate mob lynching no less than terrorism rather even worse than terrorism because without being trained ever by the intelligence agency or army of any foreign country such brutal crimes are committed most heinously!

There is no reason that why it must not be crushed with an iron hand and those involved in it be made to pay for it by paying fine of many lakhs and also death penalty or life term! We all know how even a police officer Mohammad Ayyub Pandit was not spared in Kashmir and his body was broken after mob beat him badly, broke all his bones and set him ablaze! Same is the case in many other similar cases! We saw how brutally Tabrez Ansari was mob lynched in June yet the Jharkhand police has sought to charge the 11 men with culpable homicide that does not amount to murder! Should all those involved in such heinous acts not be hanged promptly? Yet we see that not even murder charges are slapped against such mob lynchers!

Needless to say, we all know fully well that even Supreme Court in Tehseen S Poonawalla Vs Union of India & Ors in Writ Petition (Civil) No. 754 of 2016 delivered on July 17, 2018 has most unequivocally directed the Centre and States to take preventive, punitive and remedial measures to stop lynching incidents in the future and issued detailed guidelines pertaining to the same. The Apex Court Bench has minced just no words to hold unequivocally that the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. Article 21 of the Constitution guarantees the right to life and personal liberty to all the citizens of our nation and no mob can be allowed under any circumstances to hold it to ransom!

Having said this, it must now be brought out here that the Apex Court then issued some guidelines to be followed. Those guidelines are as follows: –

A.                Preventive Measures

(i)   The State Governments shall designate a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measure to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.

(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today’s fast world of data collection.

(iii) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

(iv) The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

(v) The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

(vi) It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which , in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

(vii) The Home Department of the Government of India must take initiative and work in coordination with  the State Governments for sensitising the law enforcement agencies and by involving all the stakeholders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.

(viii) The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director-General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.

(ix) The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.

(x) It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.

(xi) The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.

(xii) The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.

B.            Remedial measures

(i) Despite the preventive measures taken by the State Police, it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.

(ii) It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

(iii) Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.

(iv) The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.

(v) The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers, in particular, to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.

(vi) To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC.

(vii) The courts trying the cases of mob violence and lynching may, on an application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.

(viii) The victim(s) or the next kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.

(ix) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.

C.                   Punitive measures

(i) Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.

(ii)  In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 405, the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

 

Simply put, the Bench directed that, “Apart from the directions we have given hereinbefore and what we have expressed, we think it appropriate to recommend to the legislature, that is, the Parliament, to create  a separate offence for lynching and provide adequate punishment for the same. We have said so as a special law in this field would instill a sense of fear amongst the people who involve themselves in such kinds of activities.” Now it is up to Parliament to act and make lynching a separate offence as soon as possible as the Apex Court has directed.

Needless to say, it was made amply clear by the Bench that the measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. The Bench also made it clear that, “Reports of compliance be filed within the said period before the Registry of this Court. We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become “the new normal”. The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, “must ring with the voices of the people.” The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would in turn, reaffirm the constitutional faith. We expect nothing more and nothing less.”

 

It has been more than a year and two months that the top court had urged the Parliament in this extremely landmark and laudable judgment to enact a separate law to punish offenders participating in lynching of persons yet no action taken till now! India has faced major international embarrassment because of this and will continue to face so thus giving a bad name to our nation if such incidents are not controlled on a war footing immediately! It brooks no more delay now! Centre must abide entirely by what the Apex Court has held so categorically, clearly and convincingly! Let’s hope so!

Sanjeev Sirohi

UK Supreme Court Declares Prorogation Of Parliament Unlawful And Void

Posted on | by Sanjeev Sirohi | Leave a Comment on UK Supreme Court Declares Prorogation Of Parliament Unlawful And Void

                     In a hard hitting, hair raising and historic judgment titled R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) in [2019] UK SC 41 on appeals from [2019] EWHC 2381 (QB) and [2019] CSIH 49, Lady Hale who presided the 11 Judge Bench read out on 24 September, 2019 the landmark judgment by which United Kingdom Supreme Court has unanimously declared the prorogation of UK Parliament by Boris Johnson to be unlawful and void. Very rarely do we see in UK the judiciary stepping in as directly as we notice here! In this leading case the UK Supreme Court felt it imperative to step in and declare the prorogation of Parliament by PM Boris Johnson to be unlawful and void!

Without mincing any words, it was held clearly, categorically and convincingly that, “A decision will be unlawful if it frustrates the ability of the Parliament to carry out its constitutional functions.” This momentous judgment has grabbed the eyeballs cutting across boundary lines all across the world. We thus see that the Supreme Court unanimously allows Mrs Miller appeal and dismisses the Advocate General for Scotland’s appeal.

To start with, the 11-Judge Bench comprising of President Lady Hale and Deputy President Lord Reed while giving the judgment of the Court for themselves along with Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales first and foremost set the ball rolling by first and foremost pointing out in para 1 that, “It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union. The issue is whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.”

                  What is prorogation

On this subject, it would be pertinent to discuss what paras 2 to 6 says on this score. To begin with, para 2 states that, “Parliamentary sittings are normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer Prorogation of Parliament brings the current session to an end. The next session begins, usually a short time later, with the Queen’s Speech. While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.”

Following next, what we then see in  para 3 is this: “Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. In theory the monarch could attend Parliament and make the proclamation proroguing it in person, but the last monarch to do this was Queen Victoria in 1854. Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.”

Going forward, it is then pointed out in para 4 that, “Prorogation must be distinguished from the dissolution of Parliament. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A general election is then held to elect a new House of Commons. The Government remains in office but there are conventional constraints on what it can do during that period. These days, dissolution is usually preceded by a short period of prorogation.”

Furthermore, para 5 then enumerates that, “Dissolution used also to be a prerogative power of the Crown but is now governed by the Fixed-term Parliaments Act 2011. This provides for general elections to be held every five years and for an earlier election to be held in only two circumstances either the House of Commons votes, by a majority of at least two thirds of the number of seats (including vacant seats) in the House, to hold an early election; or the House of Commons votes that it has no confidence in Her Majesty’s Government and no-one is able to form a Government in which the House does have confidence within 14 days. Parliament is dissolved 25 days before polling day and cannot otherwise be dissolved. The Act expressly provides that it does not affect Her Majesty’s power to prorogue Parliament (section 6(1)).”

Moving on, it is then enunciated in para 6 that, “Prorogation must also be distinguished from the House adjourning or going into recess. This is decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion is moved by the Prime Minister. In the House of Lords, it is moved by the Lord Speaker. During a recess, the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked and must be answered.”

         The run-up to this prorogation

Time now to give a brief background. It is firstly pointed out in para 7 that, “As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis. Immediately after the referendum, Mr David Cameron resigned as Prime Minister. Mrs Theresa May was chosen as leader of the Conservative party and took his place.”

What follows next in para 8 is this: “The machinery for leaving the European Union is contained in article 50 of the Treaty on European Union. This provides that any member state may decide to withdraw from the Union “in accordance with its own constitutional requirements”. That member state is to notify the European Council of its intention. The Union must then negotiate and conclude an agreement with that member state, “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. The European Union treaties will cease to apply to that state when the withdrawal agreement comes into force or, failing that, two years after the notification unless the European Council in agreement with the member state, unanimously decides to extend this period.”

Going ahead, it is then brought out in para 9 that, “On 2nd October 2016, Mrs May announced her intention to give notice under article 50 before the end of March 2017. Mrs Gina Miller and others challenged her power to do so without the authority of an Act of Parliament. That challenge succeeded: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61. Parliament responded by passing the European Union (Notification of Withdrawal) Act 2017, which received royal assent on 16th March 2017 and authorised the Prime Minister to give the notification. Mrs May did so on 29th March 2017.”

Of course, it is then further brought out in para 10 that, “The Parliament was dissolved on 3rd May 2017 and a general election was held on 8th June 2017. The result was that Mrs May no longer had an overall majority in the House of Commons, but she was able to form a Government because of a “confidence and supply” agreement with the Democratic Unionist Party of Northern Ireland. Negotiations for a withdrawal agreement with the European Council proceeded.”

While explaining further, it is then illustrated in para 11 that, “Meanwhile, Parliament proceeded with some of the legislative steps needed to prepare United Kingdom law for leaving the Union. The European Union (Withdrawal) Act 2018 came into force on 26th June 2018. In brief, it defined “exit day” as 29th March 2019 but this could be extended by statutory instrument (section 20). From that day, it repealed the European Communities Act 1972, the Act which had provided for our entry into what became the European Union, but it preserved much of the existing EU law as the law of the United Kingdom with provision for exceptions and modifications to be made by delegated legislation. Crucially, section 13 requires Parliamentary approval of any withdrawal agreement reached by the Government. In summary it provides that a withdrawal agreement may only be ratified if (a) a Minister of the Crown has laid before Parliament a statement that political agreement has been reached, a copy of the negotiated withdrawal agreement and a copy of the framework for the future relationship; (b) the House of Commons has approved the withdrawal agreement and future framework; (c) the House of Lords has, in effect, taken note of them both, and (d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement.”

Interestingly enough, para 12 then brings out that, “A withdrawal agreement, setting out terms for a “smooth and orderly exit from the European Union” and a political declaration, setting out a framework for the future relationship, to be negotiated by the end of 2020, were concluded on 25th November 2018. However, the agreement was rejected three times by the House of Commons, on 15th January 2019 (by 432 to 202 votes), on 12th March 2019 (by 391 to 242 votes) and on 29th March 2019 (by 344 to 286 votes).”

To be sure, it is then pointed out in para 13 that, “On 20th March 2019 the Prime Minister had asked the European Council to extend the notification period. This was granted only until 12th April 2019. However, on 8th April 2019, the European Union (Withdrawal) Act 2019 was passed. This required a Minister of the Crown to move a motion, that day or the next, that the House of Commons agrees to the Prime Minister seeking an extension to a specified date and, if the motion was passed, required the Prime Minister to seek that extension. Pursuant to that Act, the Prime Minister sought an extension, which on 10th April 2019 was granted until 31st October 2019. The regulation changing the “exit day” was made the next day (European Union (Withdrawal) Act 2018 (Exit Day) (Amendment No 2) Regulations 2019 (SI 2019/859)). Thus the current position, under both article 50 of the Treaty on European Union and the European Union (Withdrawal) Act 2018 is that the United Kingdom will leave the Union on 31st October 2019 whether or not there is a withdrawal agreement (but this is now subject to the European Union (Withdrawal) (No 2) Act 2019, see para 22 below).”

To put things in perspective, it is then pointed out in para 14 that, “Mrs May resigned as leader of the Conservative party on 7th June 2019 and stood down as Prime Minister on 24th July after the Conservative party had chosen Mr Boris Johnson as its leader. Mr Johnson has on many occasions made it clear that he believes that the European Council will only agree to changes in the withdrawal agreement if they think that there is a genuine risk that the United Kingdom will leave without any such agreement. He appointed Mr Michael Gove Cabinet Office Minister with a view to preparing for a “no deal” exit. Yet it was also clear that a majority of the House of Commons would not support withdrawal without an agreement.”

                 This prorogation

What is then unfolded in para 15 is this: “On 28th August 2019, Mr Jacob Rees-Mogg, Lord President of the (Privy) Council and Leader of the House of Commons, Baroness Evans of Bowes Park, Leader of the House of Lords, and Mr Mark Spencer, Chief Whip, attended a meeting of the Privy Council held by the Queen at Balmoral Castle. An Order in Council was made ordering that “the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019” and that the Lord Chancellor “do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly”. We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it.”

As it turned out, it is then clarified in para 16 that, “We do not know the contents of three documents leading up to that advice, annexed to a witness statement from Jonathan Jones, Treasury Solicitor and Head of the Government Legal Department. His evidence is that his department had made clear to all relevant departments, including the Prime Minister’s Office, the requirement to make thorough searches for and to produce all information relevant to Mrs Miller’s claim.”

More consequentially, it is then revealed in para 17 that, “The first document is a Memorandum dated 15th August 2019 from Nikki da Costa, Director of Legislative Affairs in the Prime Minister’s Office, to the Prime Minister and copied to seven other people, including Sir Mark Sedwill, Cabinet Secretary, and Dominic Cummings, Special Adviser. The key points made in the Memorandum are:

·       This had been the longest session since records began. Because of this, they were at the very end of the legislative programme of the previous administration. Commons and Lords business managers were asking for new Bills to ensure that Parliament was using its time gainfully. But if new Bills were introduced, the session would have to continue for another four to six months, or the Bills would fall at the end of the session.

·       Choosing when to end the session – ie prorogue – was a balance between “wash up” – completing the Bills which were close to Royal Assent – and “not wasting time that could be used for new measures in a fresh session”. There were very few Bills suitable for “wash-up”, so this pointed to bringing the session to a close in September. Asking for prorogation to commence within the period 9th to 12th September was recommended.

·       To start the new session with a Queen’s Speech would be achievable in the week beginning 14th October but any earlier “is extremely pressured”.

·       Politically, it was essential that Parliament was sitting before and after the EU Council meeting (which is scheduled for 17th-18th October). If the Queen’s Speech were on 14th October, the usual six-day debate would culminate in key votes on 21st and 22nd October. Parliament would have the opportunity to debate the Government’s overall approach to Brexit in the run up to the EU Council and then vote on it once the outcome of the Council was known.

·       It must be recognised that “prorogation on its own and separate of a Queen’s Speech, has been portrayed as a potential tool to prevent MPs intervening prior to the UK’s departure from the EU on 31st October”. The dates proposed sought to provide reassurance by ensuring that Parliament would sit for three weeks before exit and that a maximum of seven days were lost apart from the time usually set aside for the conference recess.

·       The usual length of a prorogation was under ten days, though there had been longer ones. The present proposal would mean that Parliament stood prorogued for up to 34 calendar days but, given the conference recess, the number of sitting days would be far less than that.

·       The Prime Minister ticked “Yes” to the recommendation that his PPS Approach the Palace with a request for prorogation to begin within the period Monday 9th September to Thursday 12th September and for a Queen’s Speech on Monday 14th October.”

What’s more, para 18 then reveals that, “The second document is the Prime Minister’s handwritten comments on the Memorandum, dated 16th August. They read:

“(1) The whole September session is a rigmarole introduced [words redacted] t [sic] show the public that MPs were earning their crust.

(2) So I don’t see anything especially shocking about their prorogation.

(3) As Nikki nots [sic], it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.””

Still further, para 19 then further reveals that, “The third document is another Memorandum from Nikki da Costa, dated 23rd August, again to the Prime Minister and copied to five people, including Sir Mark Sedwill and Dominic Cummings. This sets out the proposed arrangements, including a telephone call between the Prime Minister and Her Majesty at 6.00 pm on Tuesday 27th August, formally to advise prorogation, the Privy Council meeting the next day, a cabinet meeting by conference call after that, and a press notice after the Draft remarks for the Cabinet meeting and a draft letter to MPs (approved by the Chief Whip) were annexed.”

To put it succinctly, the Bench then holds in para 20 that, “We also have the Minutes of the Cabinet meeting held by conference call at 10.05 am on Wednesday 28th August, after the advice had been given. The Prime Minister explained that it was important that they were “brought up to speed” on the decisions which had been taken. It was also “important to emphasise that this decision to prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations; it was about pursuing an exciting and dynamic legislative programme to take forward the Government’s agenda”. He also explained that the timetable did not conflict with the statutory responsibilities under the Northern Ireland (Executive Formation etc) Act 2019 (as it happens, the timetable for Parliamentary sittings laid down in section 3 of that Act requires that Parliament sit on 9th September and, on one interpretation, no later than 14th October). He acknowledged that the new timetable would impact on the sitting days available to pass the Northern Ireland Budget Bill and “potentially put at risk the ability to pass the necessary legislation relating to decision-making powers in a no-deal scenario”. In discussion at the Cabinet meeting, among the points made was that “any messaging should emphasise that the plan for a Queen’s Speech was not intended to reduce parliamentary scrutiny or minimise Parliament’s opportunity to make clear its views on Brexit… Any suggestion that the Government was using this as a tactic to frustrate Parliament should be rebutted.” In conclusion, the Prime Minister said that “there were no plans for an early General Election. This would not be right for the British people; they had faced an awful lot of electoral events in recent years”.”

Truth be told, the Bench then notes in para 21 that, “That same day, the Prime Minister sent a letter to all MPs updating them on the Government’s plans for its business in Parliament, stressing his intention to “bring forward a new bold and ambitious domestic legislative agenda for the renewal of our country after Brexit”.”

As things stood, para 22 then illustrates that, “On 3rd September Parliament returned from its summer recess. The House of Commons passed a motion that MPs should take control of the order paper – in other words decide for themselves what business they would transact. On 4th September what became the European Union (Withdrawal) (No 2) Act 2019 passed all its stages in the House of Commons. On 6th September the House of Lords suspended its usual rules so that the Bill could be passed. It received Royal Assent on Monday 9th September. The import of the Act is to require the Prime Minister on 19th October to seek, by a letter in the form scheduled to the Act, an extension of three months from the European Council, unless by then Parliament has either approved a withdrawal agreement or approved leaving without one.”

More significantly, it is then enjoined in para 25 that, “Meanwhile, as soon as the prorogation was announced, Mrs Gina Miller launched proceedings in the High Court in England and Wales, seeking a declaration that the Prime Minister’s advice to her Majesty was unlawful. Those proceedings were heard by a Divisional Court (Lord Burnett of Maldon, Lord Chief Justice of England and Wales, Sir Terence Etherton, Master of the Rolls and Dame Victoria Sharp, President of the Queen’s Bench Division) on 5th September and their judgment was delivered on 11th September: [2019] EWHC 2381 (QB). They dismissed the claim on the ground that the issue was not justiciable. They granted a “leap-frog” certificate so that the case could come directly to this court.”

Without mincing any words, the eleven Judges of the highest court in the United Kingdom have in an extraordinary unanimous judgment has struck down as unlawful a recommendation by Prime Minister Boris Johnson to Queen Elizabeth to suspend Parliament for five weeks ahead of Britain’s scheduled October 31 exit from the Europena Union. The Justices, sitting on the largest permissible Bench of the 12-Judge Supreme Court gave presiding officers of both Houses of Parliament the freedom to reconvene the Houses immediately.

While pronouncing the landmark decision, the Supreme Court President Brenda Hale said that, “The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.” She added that, “Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices. It is for Parliament and in particular, the Speaker and the [House of] Lords to decide what to do next.”

Be it noted, the Supreme Court ruled explicitly on “whether the advice given by the Prime Minister to Her Majesty the Queen on 27 or 28 August that Parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful and the legal consequences if it was not”. It said the PM’s action was unlawful and the prorogation of Parliament was “void and of no effect”. It also made clear that the question was ‘justiciable’.

As we see, the summary said that, “The court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.”

It was also clarified by the Supreme Court that, “As Parliament is not prorogued, it is for Parliament to decide what to do next. Also, because it is not prorogued, it need not be recalled; and it has not voted to adjourn or go into recess.” The Court thus laid down that, “Unless there is some Parliamentary rule to the contrary of which we are unaware, the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward.”

It must be mentioned here that eminent Constitutional expert Upendra Baxi who is Professor of Law, University of Warwick and former Vice Chancellor of Universities of South Gujarat and Delhi remarked rightly that, “This was truly a Kesavananda Bharati moment for the British court. But unlike the full Indian court, there was no riot of concurring and dissenting opinions. Of course, no judicial decision is beyond scially responsible critique. But in asking Parliament to finally decide the terms and conditions of Brexit, the British court has valuably upheld the principles of democratic accountability of a sovereign Parliament.”

No doubt, this is a major setback for British PM Boris Johnson. He himself said that he strongly disagreed with the ruling but he would respect it and of course Parliament will come back. The Supreme Court in its summary also made it clear that this was not a normal prorogation. It said that, “The prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances; the fundamental change which was due to take place in the Constitution of the United Kingdom on 31 October.” It also made it clear that, “Parliament…has a right to voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.” On the government’s argument that the courts had no business jumping in because the decision to prorogue Parliament lay in the territory of political judgment, not legal standards, the Supreme Court strongly reaffirmed that it was firmly of the opinion that the question of the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. The official summary of the judgment also sought to make it clear that, “Courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries”. Very rightly so! The British PM and his party have no option but to abide by it as the Supreme Court President Lady Hale had minced no words to say that the effect of the suspension on the fundamentals of democracy was extreme! There can be no denying or disputing it! We thus see that the Advocate General’s appeal in the case of Cherry is dismissed and Mrs Miller’s appeal is allowed. Needless to say, this landmark and extremely laudable judgment is a big rebuke to UK PM Boris Johnson and plunges Brexit into further turmoil!

Sanjeev Sirohi

Courts Can Interfere With Administrative Actions Only If It Suffers From Vice Of Illegality, Irrationality Or Procedural Impropriety: Supreme Court

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It must be mentioned right at the outset that in a latest, landmark and extremely laudable judgment titled Municipal Council Neemuch vs Mahadeo Real Estate And Ors in Civil Appeal No. 7319-7320 of 2019 (Arising out of S.L.P.(C) Nos. 172-173 of 2019) which was delivered on September 17, 2019 by a three Judge Bench of Supreme Court comprising of Justice BR Gavai who authored the judgment for himself, Justice Arun Mishra and Justice MR Shah has sought to send a very loud,  clear and categorical message to all the High Courts that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law. It was reiterated that while exercising its powers of judicial review of administrative action, Courts could not interfere with the administrative decision unless it suffers from the vice of illegality, irrationality or procedural impropriety. This observation was made by the three Judge Bench of Apex Court while setting aside a Madhya Pradesh High Court judgment that had interfered with an order passed by Revenue Commissioner of Ujjain in a matter of issuing tenders for allotment of land on lease, for a period of 30 years.

To start with, the ball is set rolling in para 2 after leave is granted under para 1 wherein it is observed that, “The present appeals challenge the Judgment and Order passed by the Division Bench of the Madhya Pradesh High Court Bench at Indore dated 31.08.2017 thereby allowing the writ petition filed by respondent No. 1 herein and the subsequent Order dated 05.07.2018 thereby rejecting the Review Petition filed by the appellant.”

For the sake of brevity, para 3 then states that, “The factual background, in brief, giving rise to the present appeals is as under. The appellant, which is a Municipal Council, duly constituted under the Madhya Pradesh Municipality Act, 1961 (hereinafter referred to as the “said Act”) had invited tenders for allotment of land on lease, for a period of 30 years. The land was ad-measuring 163176 sq. ft. situated in Scheme No. 1A (Commercial-cum Residential Use), Neemuch. The Notice Inviting Tenders (“NIT” for short) was published in the daily newspapers, viz., Nai Duniya, Dainik Bhaskar, Free Press and Dashpur Express. Respondent No. 1, which is a registered partnership firm along with other bidders had submitted the tender thereby giving an offer of Rs. 5,81,00,106/-. It had also deposited the earnest money amounting to Rs. 47,00,000/-. The bids of the participants were opened in presence of the representatives of all the bidders. The bid of respondent No. 1 herein was found to be highest.”

To be sure, it is then mentioned in para 4 that, “The appellant issued a letter dated 27.09.2008 thereby informing respondent No. 1 that its bid was accepted. Respondent No. 1 was directed to deposit an amount of Rs. 1,45,25,050/-, i.e., 25% of the bid amount within a period of seven days. Respondent no. 1 in accordance therewith deposited the aforesaid amount on 01.10.2008.”

Truth be told, it is then unfolded in para 5 that, “It appears that an objection was raised by two members of the Municipal Council under the provisions of Section 323 of the said Act before the Collector with regard to the said tender process. It further appears, that the Collector vide Order dated 18.07.2008 had stayed further proceedings of the tender process. Vide Order dated 23.12.2008, the Collector disposed of the proceeding observing therein, that the proposal be sent for approval of the State Government in the Urban Administrative and Development Department, respondent No. 2 herein, under the provisions of Section 109 of the said Act.”

While continuing in the same vein, it is then pointed out in para 6 that, “Thereafter, it appears that, there was certain correspondence between the Urban Administrative and Development Department, on one hand, and the Divisional Revenue Commissioner of Ujjain, respondent No. 3 herein, on the other hand. Finally, respondent No. 3 passed an order dated 03.07.2010 observing therein that, the tenders invited in connection with transfer of the said land were not competitive. He further observed in the said Order, that the NIT was published only in Indore edition of two Hindi Newspapers at Indore and as such there was no wide circulation. As such, he rejected the proposal of the Municipal Council and returned the same with the direction to invite the tenders again by publishing the NIT in at least one National level English newspaper and one State level reputed Hindi newspaper. Being aggrieved thereby, respondent No. 1 herein approached the Madhya Pradesh High Court in Writ Petition No. 12204 of 2010. The Division Bench vide Order dated 31.08.2017 allowed the writ petition thereby quashing and setting aside the Order dated 03.07.2010 passed by respondent No. 3 and further directing him to grant approval on behalf of the State Government for allotment of the land on lease in favour of respondent no. 1. The appellant, thereafter, preferred Review Petition No. 1072 of 2017. The same was rejected. Hence the present appeals challenging both the Orders dated 31.08.2017 and 05.07.2018.”

In the context of Rule 3 of the Municipal Corporation (Transfer of Immovable Property) Rules 1994 (referred to as the “said Rules”), it would be apposite to note that para 11 envisages that, “A perusal of the aforesaid Rule 3 of the said Rules would reveal that no immovable property which yields or is capable of yielding an income shall be transferred by sale, or otherwise conveyed, except to the highest bidder at a public auction or by inviting offers in a sealed cover. The proviso thereof provides that if the Corporation is of the opinion that it is not desirable to hold a public auction or to invite offers in sealed covers, the Corporation may, with the previous sanction of the State Government, effect such transfers without public auction or inviting offers in sealed covers. The second proviso also provides that the Corporation may, with the previous sanction of the State Government and for the reasons to be recorded in writing, transfer any immovable property to a bidder other than the highest bidder.”

What is truly a no brainer is then elaborated upon in para 12 which states clearly that, “It is thus amply clear that, no land, exceeding fifty thousand rupees in the value shall be sold or otherwise conveyed without the previous sanction of the State Government. The perusal of the aforesaid Rule further makes it clear that the immovable property which yields or is capable of yielding an income shall not be transferred by sale or otherwise conveyed, except to the highest bidder at the public auction or by inviting offers in a sealed cover. No doubt, with the previous sanction of the State Government such a transfer could be effected without public auction or inviting offers in a sealed cover. The second proviso further provides that, the Corporation may, with the previous sanction of the State Government and for the reasons to be recorded in writing, transfer any immovable property to a bidder other than the highest bidder.”

What is also a no brainer is further elucidated in para 13 that, “It is thus amply clear that, whenever any land which is having a value exceeding fifty thousand rupees is to be sold the same cannot be done without the previous sanction of the State Government.”

More importantly, while discussing about the scope of judicial review, it is then rightly underscored in para 15 that, “It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of “Wednesbury Unreasonableness” or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision making process.”

What’s more, para 17 then illustrates that, “It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law, i.e. when the error is apparent on the face of the record and is self evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice.”

     To put things in perspective, para 22 then lays bare stating that, “The situation that emerges is this. Initially the Municipal Council, Neemuch, invited tenders for allotment of the said land on lease for 30 years. This was done without taking prior approval of the State Government as is required under Section 109 of the said Act. Two municipal counselors raised objections before the Collector under the provisions of Section 323 of the said Act. The Collector, who initially granted stay on 18.07.2008, vide order dated 23.12.2008 directed the Municipal Council to seek approval of the State Government to the said proposal. Vide communication dated 21.12.2009, the State Government directed respondent No. 3-Revenue Commissioner to hand over the possession of the land to respondent No. 1. While doing so, the State Government directed the Commissioner to inspect as to whether the land was being put for use as per the development plan. On receipt of the communication the Divisional Commissioner addressed a communication to the State Government on 03.03.2010 thereby, specifically pointing out that no proper publicity was given to the NIT and that the rates were not competitive as per the market value. It was specifically observed that there was a cartel among the tenderers and therefore, sought clear orders of the State Government in view of Section 109 of the said Act. He also proposed to reject the proposal with further direction to invite fresh tenders by giving adequate publicity. In response to the said communication, the State Government re-examined the issue and by communication dated 18.05.2010 authorised the Commissioner for transferring the land in question. It is further clear from the said communication that, the State Government authorised the Commissioner to take necessary decision with regard to grant of sanction under the provisions of Section 109 of the said Act and Rule 7 of the said Rules. It specifically observed that if the Commissioner does not agree with the proposal of the Municipal Council he may while invalidating the proposal of the Municipal Council give orders for initiation of proceedings afresh. It is in view of this authorisation that the Divisional Commissioner has passed the orders which were impugned before the Madhya Pradesh High Court.”

While pooh-poohing the manner in which the Division Bench of Madhya Pradesh High Court based its decisions, the Bench then observes in para 23 that, “We are at pains to say, that the Division Bench of the High Court by only referring to the communication dated 21.12.2009 came to the conclusion that the sanction contemplated under Section 109 of the said Act was granted by the State Government. However, the Division Bench has totally ignored the subsequent correspondence between the State Government and the Commissioner. Perusal of the subsequent communication reveals that the Commissioner had pointed out the infirmities in the proposal of the Municipal Council and advised the State Government to reject the said proposal with a direction to the Municipal Council to invite fresh tenders. On the objection of the Commissioner, the State Government reexamined and reconsidered the issue and authorized the Commissioner to exercise powers under Section 109 of the said Act to take appropriate decision including rejecting the proposal and directing the process of re-tendering.”

It cannot be lost on us that it is then held in para 24 that, “It could thus be clearly seen that, the Commissioner, instead of blindly accepting the directions contained in the communication dated 21.12.2009 has acted in larger public interest so that the Municipal Council earns a higher revenue. Not only this, but the State Government, after the Commissioner pointing out anomalies to its notice, has reexamined and reconsidered the issue and authorised the Commissioner to pass appropriate orders including invalidating the tender process and directing initiation of fresh tender process. In the background of this factual situation, the finding of the Division Bench of the High Court that the action of the Commissioner is arbitrary and illegal, in our view, is neither legally or factually correct. As discussed hereinabove, the High Court, while exercising its powers of judicial review of administrative action, could not have interfered with the decision unless the decision suffers from the vice of illegality, irrationality or procedural impropriety.”

Most importantly, it is then observed in para 25 that, “In the present case, we find that the Commissioner had acted rightly as a custodian of the public property by pointing out the anomalies in the proposal of the Municipal Council to the State Government and the State Government has also responded in the right perspective by authorizing the Commissioner to take an appropriate decision. We are of the considered view that, both, the Commissioner as well as the State Government, have acted in the larger public interest. We are unable to appreciate as to how the High Court, in the present matter, could have come to a conclusion that it was empowered to exercise the power of judicial review to prevent arbitrariness or favouritism on the part of the State authorities, as has been observed by it in paragraph 13. We are also unable to appreciate the finding of the High Court in para 17 wherein it has observed that the impugned decision of the authorities are found not to be in the public interest. We ask the question to us as to whether directing re-tendering by inviting fresh tenders after giving wide publicity at the National level so as to obtain the best price for the public property, would be in the public interest or as to whether awarding contract to a bidder in the tender process where it is found that there was no adequate publicity and also a possibility of there being a cartel of bidders, would be in the public interest. We are of the considered view that the decision of the Commissioner which is set aside by the High Court is undoubtedly in larger public interest, which would ensure that the Municipal Council earns a higher revenue by enlarging the scope of the competition. By no stretch of imagination, the decision of the State Government or the Commissioner could be termed as illegal, improper, unreasonable or irrational which parameters only could have permitted the High Court to interfere. Interference by the High Court when none of such parameters exist, in our view, was totally improper. On the contrary, we find that it is the High Court, which has failed to take into consideration relevant material.”

Broadly speaking, as a corollary of what has been mentioned above, we then finally see that it is held in para 26 that, “In the result, the impugned Orders are not sustainable in law. The appeals are, accordingly, allowed and the impugned orders dated 31.08.2017 and 05.07.2018 are quashed and set aside. The petition of respondent No. 1 stands dismissed.” However, it is also then added in para 27 that, “However, the Municipal Council is directed to refund the amount deposited by respondent No. 1 herein along with interest at the rate of 6% per annum forthwith.” Lastly, it is then held in the last para 28 that, “In the facts and circumstances of the case, there shall be no order as to costs.”

In a nutshell, this decisive and laudable judgment minces just no words whatsoever to send a loud and unmistakable message that, “Courts can interfere with administrative actions only if it suffers from the vice of illegality, irrationality or procedural impropriety”. The Apex Court in this noteworthy judgment also generously cites the relevant cases like Tata Cellular Vs Union of India (1994) 6 SCC 651 and West Bengal Central School Services Commission vs Abdul Halim 2019 SCC Online SC 902 wherein it is pointed out in detail when the Court can intervene. It is pointed out that the scope of judicial review of an administrative action is very limited. Also, it is enunciated that unless the Court comes to a conclusion that the decision maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of “Wednesbury Unreasonableness” or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.

By the way, it is also explicitly stated that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law, i.e. when the error is apparent on the face of the record and is self evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at.

It has also been very rightly reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice. Very rightly so!

It needs no Albert Einstein to conclude that all the High Courts in our country must always unflinchingly abide by what the 3 Judge Bench of the Apex Court has held so clearly, categorically and convincingly in this latest, landmark and extremely laudable judgment in similar such cases. If they do so, it will very rightly save them from getting a rap on the knuckles as we see in this notable case the High Court Bench of Madhya Pradesh got much to their own relief! This is exactly what makes this judgment so significant and crucial that no High Court Judge can ever afford to miss it out some how!   .

Sanjeev Sirohi

No Attempt Made To Frame Uniform Civil Code Despite Judicial Exhortation: SC

Posted on | by Sanjeev Sirohi | Leave a Comment on No Attempt Made To Frame Uniform Civil Code Despite Judicial Exhortation: SC

 

At the outset, there can be no denying that it is a matter of greatest concern that none other than the Supreme Court which is the highest court in India has just recently in a latest, landmark and extremely laudable judgment titled Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira & Anr. in Civil Appeal No. 7378 of 2010 delivered on September 13, 2019 and authored by Justice Deepak Gupta  while speaking for the Bench for himself and Justice Aniruddha Bose has minced just no words to drive home the valid point that no attempt has been made yet to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations by it. Where is any doubt in this? We all know it very well but yet we see that Centre and Parliament has taken just no action in last more than seven decades to do something concrete to address it!

First and foremost, the ball is set rolling in para 1 of this notable judgment wherein it is pointed out that, ““Whether succession to the property of a Goan situated outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State of Goa or the Indian Succession Act, 1925” is the question which arises for decision in this appeal.”

While narrating the facts, it is then stated in para 2 that, “One Joaquim Mariano Pereira (JMP) had three daughters viz. (1) Maria Luiza Valentina Pereira (ML), Respondent No. 1 (2) Virginia Pereira and (3) Maria Augusta Antoneita Pereira Fernandes. He also had a wife named Claudina Lacerda Pereira. He lived in Bombay and purchased a property in Bombay in the year 1955. On 06.05.1957 he bequeathed this property at Bombay to his youngest daughter, Maria Luiza Valentina Pereira, Respondent No. 1. He bequeathed Rs. 3000/- each to his other two daughters. His wife expired on 31.10.1960 when he was still alive. JMP died on 02.08.1967. The probate of the Will dated 06.05.1957 was granted by the High Court of Bombay at Goa on 12.09.1980. Both the other daughters were served notice of the probate proceedings.”

Briefly stated, it is then brought out in para 3 that, “Goa was liberated from Portuguese rule on 19.12.1961. An ordinance being The Goa, Daman and Diu (Administration) Ordinance was promulgated on 05.03.1962 and thereafter the Goa, Daman and Diu (Administration) Act, 1962 was enacted, hereinafter referred to as ‘the Act of 1962’. Both the Ordinance as well as the Act of 1962 provided that the laws applicable in Goa prior to the appointed date i.e., 20.12.1961 would continue to be in force until amended or repealed by the competent legislature or authority. Section 5 of the Act of 1962 which is relevant for our purpose reads as follows:-

“5. Continuance of existing laws and their adaptation-

(1) All laws in force immediately before the appointed day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority.

(2) For the purpose of facilitating the application of any such law in relation to the administration of Goa, Daman and Diu as a Union territory and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may within two years from the appointed day, by order, may (sic make) such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient and thereupon, every such law shall have effect subject to the adaptations and modifications so made.””

More importantly, it is then pointed out in para 4 that, “It is not disputed before us that the Portuguese Civil Code, 1867 (hereinafter referred to as ‘the Civil Code’) as applicable in the State of Goa before its liberation in 1962 would apply. The Civil Code is in two parts – one part deals with all substantial civil laws including laws of succession and the other part deals with procedure. As far as the present case is concerned, they are governed by the Civil Code. The main dispute is that whereas the appellant, who is one of the legal heirs of the daughters of JMP, claims that even the property of JMP in Bombay is to be dealt with under the Civil Code, the case of the respondent i.e., the daughter who was bequeathed the property in Bombay is that as far as the immovable property situated outside Goa in any other part of India is concerned, it would be the Indian Succession Act, 1925 which would apply.”

Needless to say, it is then made amply clear in para 14 that, “The Civil Code may be a Code of Portuguese origin but after conquest and annexation of Goa, Daman and Diu, this Code became applicable to the domiciles of Goa only by virtue of the Ordinance and thereafter, by the Act. Therefore, the Civil Code has been enforced in Goa, Daman and Diu by an Act of the Indian Parliament and thus, becomes an Indian law. This issue is no longer res integra.”

What’s more, para 17 then further brings out that, “It is important to note that this Court held that in so far as the continuance of old laws is concerned, the new sovereign is not bound to follow the old laws. It is at liberty to adopt the old laws wholly or in part. It may totally reject the old laws and replace them with laws which apply in the other territories of the new sovereign. It is for the new sovereign to decide what action it would take with regard to the application of laws and from which date which law is to apply. As far as the present case is concerned, firstly the President by an Ordinance and later Parliament by an Act of Parliament decided that certain laws, as applicable to the territories of Goa, Daman and Diu prior to its conquest, which may be referred to as the erstwhile Portuguese laws, would continue in the territories. It was, however, made clear that these laws would continue only until amended or repealed by competent legislature or by other competent authority.”

Furthermore, it is then also made clear in para 18 that, “We are clearly of the view that these laws would not have been applicable unless recognised by the Indian Government and the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and in sum and substance, is an Indian law. It is no longer a foreign law. Goa is a territory of India; all domiciles of Goa are citizens of India; the Portuguese Civil Code is applicable only on account of the Ordinance and the Act referred to above. Therefore, it is crystal clear that the Code is an Indian law and no principles of private international law are applicable to this case. We answer question number one accordingly.”

While making a strong pitch for uniform civil code and lamenting total inaction on this front, it is then envisaged in para 20 that, “It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano (1985) 2 SCC 556 and Sarla Mudgal & Ors. vs. Union of India & Ors. (1995) 3 SCC 635.”

It would be worthwhile to recall that in Shah Bano case of 1985, the Apex Court pulled back no punches to hold clearly and categorically that, “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”

It would also be worthwhile to recall that the landmark judgment in Sarla Mudgal case which was authored by Justice Kuldip Singh began with this note: “ “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance any more, the introduction of “uniform civil code” for all citizens in the territory of India.”

Most notably, it is also observed in John Vallamattom vs Union of India (2003) by the then CJI VN Khare that, “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” Can anyone ever deny this? Certainly not!

Moving on, it is then very rightly underscored in para 21 of this latest noteworthy judgment that, “However, Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. It would also not be out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets. The law, however, permits pre-nuptial agreements which may have a different system of division of assets. Another important aspect, as pointed out earlier, is that at least half of the property has to pass to the legal heirs as legitime. This, in some ways, is akin to the concept of ‘coparcenary’ in Hindu law. However, as far as Goa is concerned this legitime will also apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorce.”

In other words, the Supreme Court has minced just no words to convey it loud and clear as is quite ostensible from the above discussion in this extremely landmark judgment that no attempt has been made to frame uniform civil code despite judicial exhortation. Time and again the top court has written reams and reams on the dire need of the uniform civil code in our country but Centre has repeatedly turned a blind eye to it! The top court has once again now lauded the shining example of Goa where uniform civil code is applicable to all, regardless of religion except while protecting certain rights.

The million dollar question that arises now is: Why can’t then it be extended all over India to all people of all religion equally? It can be extended provided political strong will is there which so far has been totally lacking! This is what the top court has suggested by being most vocal about framing uniform civil code and lambasting successive Central governments for not doing anything on this score despite judicial exhortation and very rightly so!

Centre must stop dishing out excuses for not framing uniform civil code in light of this latest, landmark and extremely laudable judgment and promptly act in this direction so that no one feels that just one community or religion is getting special privileges at the cost of the other! When polygamy can be banned among Hindus in 1955 then why after more than  64 years can it not be banned among Muslims also? It cannot be also lightly dismissed that many Muslim women are battling this out also in litigation as they feel that women is inexorably suffering the most because of it!

Most importantly: Why evil practices like triple talaq, nikah halala and polygamy have been allowed to continue for so long since 1947 till 2019 which has made the life of a woman worse than that of animal? Why triple talaq has been banned after such a long time? Why nikah halala which makes a complete mockery of women has not been banned even now? Same holds true for polygamy!

To summarize,  Supreme Court has in a catena of leading cases time and again forcefully argued in favour of uniform civil code but what an unbeatable irony that even after more than 72 years of independence, the idea of uniform civil code still remains just a pipedream! Centre must act right now by boldly acting on what the Supreme Court has directed now so remarkably in this leading case just like it has done in so many cases earlier also! Unquestionably, it is our national interests that will gain most and this must be uppermost in Centre’s priority list at all cost!

Sanjeev Sirohi,