BSP MP Danish Ali Demands HC Bench For West UP In LS

It is most heartening to note that repeatedly one after the other leaders both from BJP and Opposition parties like BSP are repeatedly raising the legitimate and compelling demand for the creation of a high court bench in West UP! The latest to join the growing list of MPs demanding the creation of a high court bench in West UP is Kunwar Danish Ali of BSP from Amroha who demanded that it should be created at the earliest! Just recently, we saw how even the Chairman of UP Bar Council – Hari Shankar Singh too had strongly demanded so at the earliest! It seems as if a tsunami is flowing with prominent faces from different parties and different fields all unitedly demanding the creation of a high court bench in West UP which is not going to benefit just one religion or community or caste alone but will benefit people from all religions, all communities and all castes equally!

It is also most heartening to see that Union Law Minister Ravi Shankar Prasad clearly acknowledged that Danish Ali’s demand for a bench in West UP was valid and he assured that he will try on this! Danish Ali rightly urged Centre that when it can finish any law in no time then why can’t it create a high court bench in West UP promptly? Danish Ali rightly drew the attention of the House that the demand for a high court bench in West UP is very old and people have to travel so far due to which they have to waste both their time and money! But the reason cited by Union Law Minister Ravi Shankar Prasad for the delay in creating bench in West UP is ludicrous!

How can Ravi Shankar Prasad overlook what the ex-CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had said explicitly while appreciating the dire need for a bench in West UP that it is for Centre to decide on it? How can Union Law Minister ignore that even Justice Jaswant Singh Commission had recommended the creation of a high court bench in West UP? How can Union Law Minister ignore that procedure is nothing but the handmaiden of people and it cannot be given precedence over the long sufferings faced by people since 1947 as both high court at Allahabad and a single bench just 200 km away from Allahabad at Lucknow is in Eastern UP? When a bench can be created at Lucknow on July 1, 1948 then why can’t a bench not be created even 72 years later in 2019 or rather 2020 which is about to start in West UP?

It will take some time for me to come to terms with what I have read in various newspapers including Amar Ujala and Dainik Jagran among others dated 17/11/2019 wherein none other than the UP Bar Council Chairman and senior advocate Harishankar Singh who has an impeccable track record has openly not just espoused the creation of a high court bench in West UP at any cost but has also simultaneously warned that if Centre and UP state government do not pay attention to it there will be a very big movement! Why is Centre and UP state government dead determined that as Jawaharlal Nehru had created a high court bench in Lucknow which is just about 200 km away from Allahabad where High Court itself is located on July 1, 1948 and not at any other place and all Prime Ministers following him from Lal Bahadur Shastri to Narendra Modi himself has never broken this even though Justice Jaswant Singh Commission  which was appointed by Centre itself by the then late Mrs Indira Gandhi government in late 1970s headed by former Supreme Court Judge – Justice Jaswant Singh which recommended 3 high court benches for UP but not one was created even though on its recommendations benches of high court were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? This is most shocking! It is most baffling as to why no government in Centre ever fulfils the legitimate and compelling need for a high court bench in West UP for the more than 9 crore people living here in 26 districts knowing fully well that even Justice Jaswant Singh Commission had recommended that a High Court Bench should be created in West UP?

Why even this BJP government led by PM Narendra Modi who now enjoys majority in both Houses of Parliament is not listening to even its own Union Ministers and MPs from West UP who repeatedly keep raising the demand for a high court bench in Parliament itself? Why is it ignored that even former PM Atal Bihari Vajpayee had himself raised the demand for a high court bench in West UP right inside Parliament while he was leader of Opposition? Why is it ignored that more than half of the pending cases are from West UP as was acknowledged by Justice Jaswant Singh Commission also still why not a single high court bench has been created here since last more than 72 years?

It must be mentioned here that UP Bar Council Chairman Harishankar Singh while mentioning about one state and one high court concept disclosed that in Lucknow there is a separate high court bench and there are many states where there are 2 to 3 high court benches. In fact, Assam and Maharashtra have 4 benches! He said that UP is the oldest state and according to its area and population the demand for a high court bench is legitimate which will be fulfilled at all cost! He also disclosed that while he was Vice Chairman in 2008 then also he had prominently raised the demand for a high court bench in West UP! He called upon advocates of West UP to give a memorandum for high court bench which has been given umpteen number of times in the past also but he assured that at any cost he would make the lawyers of West UP meet PM Narendra Modi who represents Varanasi and UP CM Yogi Adityanath! He also minced no words to make it absolutely clear that he represents more than 3 and a half lakh advocates of UP and he would not be afraid to go even to jail or face judicial contempt. He asserted that he earlier also supported the sacred cause of a high court bench in West UP and in future also shall continue doing so relentlessly! It takes great guts and great determination to do what he is doing so openly!

Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 23 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries and there are only 3 countries including China, India, USA which have more population than UP, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948, 72 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP especially West UP which has 26 districts and is notorious for lawlessness!

What a shame that US President Donald Trump openly lauded PM Narendra Modi for winning with more than two third majority in UP elections but still this government cannot summon the courage to even create even a single bench in any hook and corner of UP, leave alone West UP! Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world about three and a half lakh members yet its former Chairperson Darvesh Yadav just within three days of being elected was brutally murdered right inside court premises in Agra in West UP by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti? Just recently we saw a senior and eminent lawyer in Meerut named Mukesh Sharma being brutally murdered just adjacent to his house while he had gone for walk and similarly in other districts of West UP we saw lawyers being murdered! Another advocate Zahid was murdered in Baghpat! In Muzaffarnagar still another advocate Ameer Saifi was murdered! For how long will West UP’s legitimate claim for a high court bench be consistently ignored?

Needless to say, UP must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful state like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Centre must stop shamelessly putting the onus on creating benches on Judges of High Court and Full Bench of High Court instead of itself acting as it has done in case of many other states! It is Centre which gets mandate from people to act to address their long term sufferings! How can Centre shift this also on Judges of High Court who are not elected by people and abjure its own responsibility? How can Centre shamelessly ignore that Justice Jaswant Singh Commission also recommended a bench for West UP which Centre has not implemented even though benches were created for other states many decades back as for instance at Aurangabad in Maharashtra in 1985, Madurai in Tamil Nadu and Jalpaiguri in West Bengal?

If West UP can’t be given bench then Centre must disband all high court benches in India! But the 230th report of Law Commission of India in 2009 recommended creation of more high court benches as it would help people get speedy justice! Senior and eminent advocate Naresh Dutt Sharma who is General Secretary of Meerut Bar has very rightly pointed out that, “State government has several times sent resolutions for creating bench in West UP. Central Action Committee of West UP has also spoken several times to State Government and done gherao also. Centre has the power to create a bench in West UP and ensure that cheap justice is given to people here.”

Sanjay Sharma who is former General Secretary of Meerut Bar more bluntly says that, “Law Minister is misguiding Parliament. Centre can directly create bench in UP. There is no need for any resolution. Centre’s intentions are not noble on this. BJP leaders from West UP are also not determined due to which Bench has not been created here.” Centre must stop dishing out excuses and act boldly as it did in case of abrogating special status of Jammu and Kashmir! Ex-CJI Ranjan Gogoi definitely cannot speak lies and he has categorically and clearly said that it is for Centre to take action on this. He never said that it is for full Bench of Allahabad High Court to decide on this as the Union Law Minister is advocating! There can be no denying that people from all religions numbering more than 9 crore will gain immensely in West UP if a bench is created here!

Sanjeev Sirohi

RTI Applicable To Office Of CJI: SC Upholds Delhi HC Judgment

                                         To start with, in a latest, landmark and extremely laudable judgment titled Central Public Information Officer, Supreme Court Of India vs Subhash Chandra Aggarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010, the Supreme Court on November 13 while exercising its civil appellate jurisdiction has clearly and categorically held that the office of Chief Justice of India is a public authority under the Right to Information Act. But it has also added a rider that “when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. The five Judge Constitution Bench comprising of the then Chief Justice of India – Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna heard this all-important case which will have immense significance as it directly concerns the top court and none other than the Chief Justice of India himself!

To put things in perspective, a Constitution Bench of Chief Justice of India Ranjan Gogoi and all the Judges mentioned in the above para upheld the January 2010 Delhi High Court judgment delivered by the then Chief Justice AP Shah, Vikramjit Sen and S Murlidhar which said that the Apex Court and the office of the CJI would fall within the ambit of the 2005 RTI Act which in turn had upheld the then single Judge of Delhi High Court – Justice Ravindra Bhatt (later elevated as Supreme Court Judge) who had held on September 2, 2009 that, “The Office of the Chief Justice of India is a public authority under the RTI Act and is covered by its provisions”.  The Apex Court dismissed three appeals filed by its Central Public Information Officer and Secretary General challenging the order. While on the one hand, the then CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna rendered one judgment and it was Justice Sanjiv Khanna who wrote the majority opinion on behalf of the Bench, on the other hand, Justices NV Ramana and Justice DY Chandrachud delivered two separate concurring judgments.

Needless to say, the introductory para first and foremost sets the tone and tenor of this landmark judgment by pointing out that, “This judgment would decide the afore-captioned appeals preferred by the Central Public Information Officer (‘CPIO’ for short), Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045 of 2010) and Secretary General, Supreme Court of India (appellant in Civil Appeal No. 2683 of 2010), against the common respondent – Subhash Chandra Agarwal, and seeks to answer the question as to ‘how transparent is transparent enough’ under the Right to Information Act, 2005 (RTI Act’ for short) in the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.”

What follows next in para 2 is stated thus: “Civil Appeal No. 10045 of 2010 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal arises from an application moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India on 6th July, 2009 to furnish a copy of the complete correspondence with the then Chief Justice of India as the Times of India had reported that a Union Minister had approached through a lawyer, Mr. Justice R. Reghupati of the High Court of Madras to influence his judicial decisions. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry. First appeal filed by Subhash Chandra Aggarwal was dismissed by the appellate authority vide order dated 05th September, 2009. On further appeal, the Central Information Commission (‘CIC’ for short) vide order dated 24th November, 2009 has directed disclosure of information observing that disclosure would not infringe upon the constitutional status of the judges. Aggrieved, the CPIO, Supreme Court of India has preferred this appeal.”

Going forward, para 3 then further enunciates that, “Civil Appeal No. 10044 of 2010 arises from an application dated 23rd January, 2009 moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India to furnish a copy of complete file/papers as available with the Supreme Court of India inclusive of copies of complete correspondence exchanged between the concerned constitutional authorities with file notings relating to the appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO vide order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India. Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March, 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment dated 02nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal & Another. The CIC has also relied on the decision of this Court in S.P. Gupta v. Union of India & Others (1981) Supp SCC 87 to reach its conclusion. Aggrieved, the CPIO, Supreme Court of India has preferred the present appeal stating, inter alia, that the judgment in Writ Petition (Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High Court in LPA No. 501 of 2009 vide judgment dated 12th January, 2010, which judgment is the subject matter of appeal before this Court in Civil Appeal No. 2683 of 2010.”

To be sure, while writing the main judgment, Justice Sanjiv Khanna said the court while stressing the need for balancing transparency and accountability with judicial independence, “should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information.” He also added unequivocally that the “independence in a given case may well demand openness and transparency by furnishing the information.” It is certainly crucial as it will now open the door to RTI requests unlike earlier when the judicial system was rather opaque!

As it turned out, the historic order made it clear that, “Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Of course, the Bench said that the type and nature of the information is also a relevant factor to be considered. It also made it clear that, “Distinction must be drawn between the final opinion or resolutions passed by the collegiums with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegiums had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision…Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open”.

To put it succinctly, it is stated in para 89 by Justice Sanjiv Khanna on behalf of five Judges of Constitution Bench that, “In view of the aforesaid discussion, we dismiss Civil Appeal No. 2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11(1) of the RTI Act would come into operation.”

What’s more, para 90 then holds that, “As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are concerned, they are to be partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. The reference and the appeals are accordingly disposed of.”

Simply put, the key findings in this landmark judgment authored by Justice Sanjiv Khanna for himself, CJI Ranjan Gogoi and Justice NV Ramana are as follows:-

1.  The Supreme Court of India and the office of the CJI are two different public authorities. The Supreme Court would necessarily include the office of CJI and other Judges in view of Article 124 of the Constitution.

2.  Ordinarily the relationship between the Chief Justice and Judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise.

3.  The details of personal assets of Judges would not amount to personal information and disclosure of the same will not violate right to privacy of Judges.

4.  Confidentiality has to be maintained in some aspects of judicial administration. It was held rightly that, “Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature.”

While delivering a separate but concurring judgment, Justice NV Ramana first and foremost seeks to make it clear that, “In the domain of human rights, right to privacy and right to information have to be treated as co-equals and none can take precedence over the other, rather a balance needs to be struck”.

On transparency, Justice Ramana very rightly elucidates in para 42 of his judgment that, “Coming to the aspect of transparency, judicial independence and the RTI Act, we need to note that there needs to be a balance between the three equally important concepts. The whole bulwark of preserving our Constitution, is trusted upon judiciary, when other branches have not been able to do so. As a shield, the judicial independence is the basis with which judiciary has maintained its trust reposed by the citizens. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence.”

While striking a note of caution, Justice Ramana then very rightly observed in para 43 that, “It must be kept in the mind that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold. We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. While applying the second step the concerned authority needs to balance these considerations as well.”

While welcoming this noteworthy judgment, the 69-year-old RTI activist Subhash Chandra Agarwal who fought an arduous 12-yeart-long battle to ensure that the highest office in judiciary is answerable to people termed the Apex Court’s decision on it as “milestone” in the fight for transparency in public offices. He eloquently said that, “This is a landmark judgment and will prove to be a milestone in the era of transparency. The Apex Court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment.”

It cannot be denied that a new study by Vidhi Centre for Legal Policy has found that there is a “yawning gap” between the judiciary’s pronouncements on the Right to Information (RTI) Act and the manner in which the High Courts are implementing it. The report said that, “In particular, the lack of transparency in financial matters of the High Courts is very worrying. Most High Courts do not proactively publish details about their budgets and expenditure. Even fewer High Courts are willing to provide copies of their budgets and audit reports under the RTI Act.” The report has also found that several High Courts have included patently illegal clauses in their RTI Rules and despite Section 8 of the RTI Act restricting the number of grounds for denying information to citizens, the RTI rules of several High Courts have included additional grounds for rejecting requests for information! The report also said that it should be a matter of concern to see the judiciary lagging behind the Centre when it comes to abiding by the letter and spirit of the RTI Act! All this must change if this latest, landmark and extremely laudable judgment is to be taken to its logical conclusion!

Justice DY Chandrachud in his separate yet concurring judgment very rightly and remarkably points out while going the extra mile saying in para 117 that, “If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegiums system postulates that proposals for appointment of judges are initiated by the judges themselves.”

Needless to say, Justice Chandrachud also minces no words to make it clear by adding further after mentioning the essential substantial norms in regard to judicial appointments in this same para 117 that, “The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.”

No doubt, this extremely landmark and laudable judgment has sent a very loud and clear message that even CJI is not exempted from the purview of RTI Act. This will clearly serve to increase transparency in the functioning of judiciary. This will also send a loud and clear message that the judiciary has to show more and hide less!

It has certainly set a great precedent for other institutions to follow and it won’t be asking too much if we say that Centre must work relentlessly to ensure that those who are left out of its purview are too brought under its ambit! Even political parties and politicians must be brought fully within RTI’s ambit! CBI which is still out of RTI must also be brought within RTI’s ambit!

It must be mentioned here that when the RTI Act was enacted on October 12, 2005, the CBI came under its purview but the CBI later moved for exemption and this was endorsed by the then Union Law Minister M Veerappa Moily of the UPA government even though Moily himself as head earlier of the Administrative Reforms Commission had recommended that armed forces be exempted from RTI Act but no such recommendation was made for the CBI! Anyway, it has to be conceded that a good beginning has been made by the Apex Court by holding clearly that the office of the Chief Justice of India is a public authority under the RTI Act! But it should not stop just here only! This good tempo must be certainly maintained and all those left out should also be brought under its ambit!

Sanjeev Sirohi

UP Bar Council Chairman Harishankar Singh Openly Calls For High Court Bench To Be Created In West UP At Any Cost

                It will take some time for me to come to terms with what I have read in various newspapers including Amar Ujala and Dainik Jagran among others dated 17/11/2019 wherein none other than the UP Bar Council Chairman and senior advocate Harishankar Singh who has an impeccable track record has openly not just espoused the creation of a high court bench in West UP at any cost but has also simultaneously warned that if Centre and UP state government do not pay attention to it there will be a very big movement! Why is Centre and UP state government dead determined that as Jawaharlal Nehru had created a high court bench in Lucknow which is just about 200 km away from Allahabad where High Court itself is located on July 1, 1948 and not at any other place and all Prime Ministers following him from Lal Bahadur Shastri to Narendra Modi himself has never broken this even though Justice Jaswant Singh Commission  which was appointed by Centre itself by the then late Mrs Indira Gandhi government in late 1970s headed by former Supreme Court Judge – Justice Jaswant Singh which recommended 3 high court benches for UP but not one was created even though on its recommendations benches of high court were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? This is most shocking!

Was it Jawaharlal Nehru’s last death wish that not a single bench should be created anywhere in any hook and corner of UP except the one which he himself created at Lucknow in 1948? I have not heard of any such thing! If there was any such last wish of Jawaharlal Nehru then Centre must disclose it! It is most baffling as to why no government in Centre ever fulfils the legitimate and compelling need for a high court bench in West UP for the more than 9 crore people living here in 26 districts knowing fully well that even Justice Jaswant Singh Commission had recommended that a High Court Bench should be created in West UP?

Why even this BJP government led by PM Narendra Modi who now enjoys majority in both Houses of Parliament is not listening to even its own Union Ministers and MPs from West UP who repeatedly keep raising the demand for a high court bench in Parliament itself? Why is it ignored that even former PM Atal Bihari Vajpayee had himself raised the demand for a high court bench in West UP right inside Parliament while he was leader of Opposition? Why is it ignored that more than half of the pending cases are from West UP as was acknowledged by Justice Jaswant Singh Commission also still why not a single high court bench has been created here since last more than 72 years?

It must be mentioned here that UP Bar Council Chairman Harishankar Singh while mentioning about one state and one high court concept disclosed that in Lucknow there is a separate high court bench and there are many states where there are 2 to 3 high court benches. In fact, Assam and Maharashtra have 4 benches! He said that UP is the oldest state and according to its area and population the demand for a high court bench is legitimate which will be fulfilled at all cost! He also disclosed that while he was Vice Chairman in 2008 then also he had prominently raised the demand for a high court bench in West UP! He called upon advocates of West UP to give a memorandum for high court bench which has been given umpteen number of times in the past also but he assured that at any cost he would make the lawyers of West UP meet PM Narendra Modi who represents Varanasi and UP CM Yogi Adityanath! He also pulled back no punches to directly say upfront that if PM Modi and CM Yogi don’t give them time to meet him regarding creation of a bench in West UP then he would change the very history and geography of Varanasi. He also minced no words to make it absolutely clear that he represents more than 3 and a half lakh advocates of UP and he would not be afraid to go even to jail or face judicial contempt. He asserted that he earlier also supported the sacred cause of a high court bench in West UP and in future also shall continue doing so relentlessly! It takes great guts and great determination to do what he is doing so openly!

Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 23 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries and there are only 3 countries including China, India, USA which have more population than UP, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948, 72 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP especially West UP which has 26 districts and is notorious for lawlessness!

Why is it that UP has just one bench and here too West UP which owes for more than half of pending cases has none? Why a single bench only for UP at Lucknow which is so close to Allahabad just about 200 km away and not anywhere else as in West UP where people have to travel about 700-800 km on an average all the way to Allahabad as there is no bench here? Why a bench for Lucknow since July 1, 1948 for just about 8 districts but no bench for West UP even in 2019 for 26 districts for more than 9 crore people living here which constitutes for nearly half of the population of UP? Can this be justified on any ground and under any circumstances? Certainly not!

Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world yet its former Chairperson Darvesh Yadav just within three days of being elected is brutally murdered right inside court premises by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti? Just recently we saw a senior and eminent lawyer in Meerut named Mukesh Sharma being brutally murdered just adjacent to his house while he had gone for walk and similarly in other districts of West UP we saw lawyers being murdered! Another advocate Zahid was murdered in Baghpat! In Muzaffarnagar still another advocate Ameer Saifi was murdered! For how long will West UP’s legitimate claim for a high court bench be consistently ignored?

Needless to say, UP must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful state like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Bluntly put: Is this is what Article 14 which talks about right to equality stands for? Is Centre not making an open mockery of Article 14 of Indian Constitution? Are the people of West UP not entitled to get “speedy justice”, “justice at doorsteps” and “cheap justice” just like the people of Karnataka, Maharashtra, Assam etc? Why is it that the high court and benches of 8 states are closer to West UP as compared to Allahabad? Why even Lahore High Court in Pakistan is closer to West UP as compared to Allahabad High Court? Still should a high court bench not be created here?

Needless to say, Centre must clarify its stand and not maintain a conspicuous and deafening silence on it! Former Attorney General Soli J Sorabjee had clearly said in 2001 while he was Attorney General that, “Centre is fully empowered to create a bench in any of the districts in West UP without any recommendation from the Chief Justice or anyone else in this regard.” Former Supreme Court Bar Association Chairman  Krishnamani had also said that, “Only by the creation of a high court bench in West UP will the people living here get real justice.”CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had appreciated the dire need for a bench in West UP but also had said that it is for Centre to decide on it!

One hopes fervently that the new CJI would seriously look into it! He himself being a product of a high court bench at Nagpur should certainly go into it deep and set up benches not just in West UP but also in other needy places in different states as was rightly recommended by 230th report of Law Commission of India also so that more talent comes to the horizon and we see that the “poorest of poor” people get “justice at doorsteps” and they are not compelled to travel a long way to get justice as it is they who have to spend more and suffer innumerable hassles! He must act as Centre has failed to act in last more than 72 years especially in case of UP and Bihar which inspite of being lawless states have just one bench and no bench respectively!

It is most shocking that peaceful states like Karnataka, Maharashtra, Assam, Madhya Pradesh among others have more high court benches but the most lawless states have either just one or no bench at all! This must be set right at the earliest! Let’s hope that the CJI designate – Sharad Arvind Bobde will act courageously on this score and do what none of his predecessors has ever dared to do and tended to play safe by always leaving the ball in Centre’s court which has done just nothing at all even though the incumbent Law Minister of India Ravi Shankar Prasad is from Bihar where there is not even a single bench even though we keep hearing so many incidents of crime from there and the PM Narendra Modi himself is from UP representing Varanasi still in his previous term he did just nothing on this score and now also has not shown any interest in it notwithstanding the irrefutable fact that the outgoing CJI Ranjan Gogoi had said that it was for the Centre to decide on it!

What a pity that the lawyers of West UP have been on strikes for even 6 months continuously, for 3 to 4 months continuously and every Saturday since May 1981 till November 2019 and many senior lawyers have even faced serious injuries also while protesting for a bench in last more than 50 years but Centre still has just shown no interest to address it just like the previous governments in Centre and Nehru’s legacy is continuing uninterrupted on this score! Should we be proud of this? Not just this, many UP CM have recommended for a bench in West UP with Mayawati even recommending West UP to be created as a separate state in 1995 but not even a bench or even circuit bench created till now which means that the more than 9 crore people are worse than the 3 lakh people of Andaman and Nicobar islands which has a bench at Port Blair!

But Centre still feels that not a single bench should be created either in West UP or in any other part of UP for undisclosed reasons! Can on earth there be anything more shameful than this? In just about two to three weeks in October, more than 3 to 4 lawyers have been murdered in different parts of West UP but still litigants are compelled to travel so far away to Allahabad which is about 700 to 800 km away as Centre is just not ready to create a bench in West UP or even in any other part of UP! UP needs more high court benches and not more temples which are there in abundance!

Sanjeev Sirohi

Govt Must Read ‘Extremely Important’ Dissent Order in Sabarimala Verdict: Justice R F Nariman

Justice R F Nariman of the Supreme Court on Friday said the government must read the “extremely important dissent” order in the Sabarimala case.

Justice Nariman had penned the dissent order on behalf of himself and Justice D Y Chandrachud. “Please tell your government to read the dissent judgment delivered in the Sabaimala case yesterday, which is extremely important…. Inform your authority and the government to read it,” he told Solicitor General Tushar Mehta.

Justices Nariman and Chandrachud, who were a part of the five-judge Constitution bench in the Sabarimala case, had on Thursday dissented from the majority verdict.
Justice R F Nariman of the Supreme Court on Friday said the government must read the “extremely important dissent” order in the Sabarimala case.

Justice Nariman had penned the dissent order on behalf of himself and Justice D Y Chandrachud. “Please tell your government to read the dissent judgment delivered in the Sabaimala case yesterday, which is extremely important…. Inform your authority and the government to read it,” he told Solicitor General Tushar Mehta.

Justice Nariman and Chandrachud, who were a part of the five-judge Constitution bench in the Sabarimala case, had on Thursday dissented from the majority verdict and had dismissed the plea seeking review of the apex court’s earlier judgment allowing entry of women of all ages to the Sabairmala temple.

He said this to Mehta when the court was hearing an appeal filed by the Enforcement Directorate challenging the Delhi High Court verdict granting bail to Karnataka Congress leader D K Shivakumar in a money laundering case. The SC dismissed the ED plea.

Continuation of Criminal Proceedings After Compromise Would Cause Oppression And Prejudice To Parties: Allahabad High Court

                                                  It must be noted that the Allahabad High Court has just recently on October 30, 2019 in a latest, landmark and laudable judgment titled Smt. Gomti Devi and others vs State of UP and another in Application u/s 482 No. – 27341 of 2012 has reiterated that once the parties had decided to enter into a compromise, it would be oppressive and prejudicial to continue the proceedings. Why should the parties continue to suffer even after the compromise is entered into? Why should the proceedings not be nipped in the bud once the parties had decided to enter into a compromise?

To start with, this noteworthy judgment authored by Justice Sanjay Kumar Singh of Allahabad High Court first and foremost reads out the introductory part by observing that, “Heard learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party No. 1 and Mr. Rajeev Chaddha, learned counsel for opposite party No. 2 and perused the record with the assistance of learned counsel for the parties.”

To be sure, the ball is then set rolling in the real sense in this notable judgment by laying down that, “This application under Section 482 Cr.P.C. has been filed by the applicants for quashing the charge sheet No. 38 of 2012 dated 20.3.2012 as well as entire proceedings of Criminal Case No. 335 of 2012 (State vs. Smt. Madhu  and others) arising out of Case Crime No. 97 of 2012, under Section 420 IPC, police station Simbhawali, district Panchsheel Nagar pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrate-1st, Garh Mukteshwar, district Panchsheel Nagar.”

While elaborating further, it is then explained in this new para about the applicants version that, “It is submitted by learned counsel for the applicants that applicant No. 1 is the purchaser of land in dispute from one Madhu Sharma, who is daughter-in-law of opposite party No. 2 and applicant Nos. 2 and 3 are the witnesses of sale deed dated 12.12.2011. It is also submitted that as per prosecution case, opposite party No. 2 lodged first information report through an application under Section 156(3) Cr.P.C. on 29.2.2012 making allegation inter alia that his daughter-in-law, Madhu Sharma has wrongly and illegally executed a sale deed of plot in question situated at village Goardhanpur, Ghaziabad (now district Hapur) dated 12.12.2011 in favour of applicant No. 1 after the death of his son, Pramod Kumar, in which the Investigating Officer has submitted impugned charge-sheet dated 20.3.2012 under Section 420 IPC. The said charge sheet dated 20.3.2012 has been under challenge before this Court, in which vide order dated 28.8.2012, interim protection was granted to the applicants directing that until ordered otherwise, no coercive action shall be taken against the applicants.”

Delving deeper, it is then stated that, “It is further submitted by learned counsel for the applicants that during the pendency of this application before this Court, parties concerned have entered into a compromise outside the Court, and thereafter, Civil Suit No. 62 of 2017 filed by grand-son of opposite party No. 2 for cancellation of sale deed dated 12.12.2011 has been decided in terms of compromise made between the parties concerned vide order dated 4.5.2017, which has been brought on record as annexure No. 2 to the supplementary affidavit dated 27.2.2018.”

Not stopping here, it is then envisaged that, “It is also submitted that opposite party No. 2, Om Prakash has also moved an affidavit dated 16.10.2017 before the court of Additional Civil Judge (Junior Division)/Judicial Magistrate, Garhmukteshwar in Case No. 335 of 2012 (State vs. Smt. Gomti Devi and others) mentioning the factum of compromise made between the parties concerned praying therein to decide the case in terms of compromise, as he does not want to get the case proceeded further. On the said affidavit, order dated 11.1.2018 has been passed by the concerned court below accepting the said compromise affidavit on record. The said order dated 11.1.2018 has been brought on record as annexure No. 5 to the supplementary affidavit dated 27.2.2018.”

Going forward, it is then also pointed out that, “It is also submitted that on account of compromise entered into between the parties concerned, all disputes between them have come to an end and on the aforesaid facts continuance of criminal proceedings pursuant to impugned charge-sheet against the applicants after compromise arrived at between the parties would be a futile exercise, therefore, same is liable to be quashed by this Court.”

Needless to say, it is then also pointed out that, “Learned Additional Government Advocate as well as learned counsel appearing on behalf of opposite party No. 2 do not dispute the aforesaid fact. Learned counsel for opposite party No. 2 has also submitted at the Bar that since the parties concerned have settled their dispute as mentioned above, therefore, opposite party No. 2 has no grievance and has no objection in quashing the impugned criminal proceedings against the applicants.”

It cannot be lost on us that it is then rightly laid down that, “After having heard the arguments of learned counsel for the parties, before proceeding further, it is apposite to give reference of some judgments of the Apex Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of non-compoundable offences under Section 320 Cr.P.C. on the basis of compromise and amicable settlement of criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transaction with an essentially civil flavor dispute, etc. between the parties concerned, which are as follows:-

(i)                         Nikhil Merchant vs Central Bureau of Investigation, 2008 (9) SCC 677.

(ii)                      Manoj Sharma vs State and others, 2008 (16) SCC 1.

(iii)                   Parbatbhai Aahir @ Parbatbhai Vs. State of Gujarat, (2017) 9 SCC 641.

(iv)                   The Apex Court in case of State of Madhya Pradesh Vs. Laxmi Narayan and others AIR 2019 SC 1296, considering previous judgments and section 320 Cr.P.C. has laid down guideline for exercising the inherent power under Section 482 Cr.P.C. in case of settlement of dispute between the parties concerned. Paragraph no. 13 of the said judgment is reproduced herein-below:-

“13. Considering the law on the point and the other decision of this Court on the point, referred to hereinabove, it is observed and held as under:

i)                 that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

ii)              such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

iii)           similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity  are not to be quashed merely on the basis of compromise between the victim and the offender;

iv)           offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc., which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

v)              while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.””

What can be deduced from the above foregoing discussion is stated thus: “On going through the judgments referred herein above makes it very clear that even in the cases which involved non-compoundable offences, their quashing has been approved by the Apex Court if the nature of the offence is such which does not have grave and wider social ramifications and where the dispute is more or less confined between the litigating parties. The inherent jurisdiction of this Court may be suitably exercised if the parties inter-se have mutually decided to bury the hatchet and settle the matter amicably in between them in a criminal litigation emanating from such dispute which are quintessentially of civil nature and other criminal litigations, which do not have grave and deleterious social fall-outs. The Court in the wider public interest may suitably exercise its power in appropriate case and terminate the pending proceedings in order to secure ends of justice or to prevent an abuse of the process of any court. Such positive exercise of the inherent jurisdiction can also find its vindication in a more pragmatic reason. When the complainant of a case or the victim of the offence itself expresses its resolve not to give evidence against the accused in the backdrop of the compromise between the parties inter-se or if the fact of inter-se compromise in between the parties is apparent on the face of record, and they are still called upon to depose in the Court, they in all probability, go back on their words and resile from their previous statements, the truthfulness of which is best known only to themselves. They are in such circumstances very likely to eat their words and perjure themselves. The solemn proceedings of the Court often get reduced to a sham exercise and farce in such circumstances. The proceedings can hardly be taken to their logical culmination and in such circumstances, the prospect of the conviction gets lost.”

More importantly, Justice Sanjay Kumar Singh also in this judgment minces no words to conclude that, “The object of criminal law is primarily to visit the offender with certain consequences. He may be made to suffer punishment or by paying compensation to the sufferer, but the law at the same time also provides that it may not be necessary in every criminal offence to mete out punishment, particularly, if the parties concerned wants to bury the hatchet. If they want to move on in a dispute of civil nature on the basis of compromise, they may be allowed to compound the offences in terms of settlement.”

Most importantly, it is then rightly held that, “After compromise/settlement arrived at between the parties in the present case, the chance of ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution against the applicants to continue, as the same would be futile exercise and a sheer wastage of precious time of the Court. The continuation of a criminal proceedings after compromise would cause oppression and prejudice to the parties concerned.”

Equally important if not more is what it is then held that, “Considering the facts and circumstances of the case in the light of dictum and guideline laid down by the Apex Court as mentioned above, this Court feels that this is a fit case, where this Court can exercise its inherent power to secure the ends of justice. In view of above interest of justice would be met, if the prayer of parties is acceded to and the criminal proceedings and other litigation between the parties is brought to an end.”

Lastly, it is then held that, “As a fallout and consequence of above discussions, charge sheet No. 38 of 2012 dated 20.3.2012 as well as entire proceedings of Criminal Case No. 335 of 2012 (State vs. Smt. Madhu and others) arising out of Case Crime No. 97 of 2012, under Section 420 IPC, police station Simbhawali, district Panchsheel Nagar pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrate-1st, Garh Mukteshwar, district Panchsheel Nagar against the applicants are hereby quashed. The instant application under Section 482 Cr.P.C. is allowed in terms of compromise as mentioned above.”

In conclusion, it may well be said that the Allahabad High Court has in this extremely laudable judgment very rightly reiterated once again that continuation of criminal proceedings after compromise would cause oppression and prejudice to the parties. The curtains have thus been set on this vital issue. There is thus now no lingering doubt left on this that has not been clarified most clearly by the Allahabad High Court on this key issue!

Sanjeev Sirohi

More High Court Benches Will Produce More Bobde

                                        It cannot be disputed by anyone that if more high court benches are created all over India as was very rightly recommended by the 230th report of Law Commission of India, it will certainly produce more diamonds like the Chief Justice of India designate Sharad Arvind Bobde who is most invaluable and even Kohinoor diamond stands just nowhere near him! It was Nagpur High Court Bench which was witness to the nurturing, grooming and shining of this “greatest of great” lawyer who gave up his roaring practice to accept “Judgeship” and the rest is history! Would it have been possible if Nagpur had no high court bench? Without leaving his home and migrating anywhere else like in Bombay where High Court is located or at Aurangabad where High Court Bench is also located, he could give his best and create a niche in golden letters by becoming CJI designate thus bringing glory and fame not only to himself but also to Nagpur where he practiced in high court bench for more than 22 years!

It is heartening to note and it is Maharashtra’s great fortune that Bombay High Court which earlier had three high court benches at Nagpur, Kolhapur and Panaji was accorded one more bench by Centre in Kolhapur for just 6 districts in 2018 but it is India’s biggest misfortune that UP has least which is incomprehensible! Why no high court bench was created in UP even after the landmark recommendations of Justice Jaswant Singh Commission which was appointed by Centre itself by the then late Mrs Indira Gandhi government in late 1970s headed by former Supreme Court Judge – Justice Jaswant Singh which recommended 3 high court benches for UP but not one was created even though on its recommendations benches of high court were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? This is most shocking!

Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 22 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948, 72 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP especially West UP which has 26 districts and is notorious for lawlessness!

Why is it that UP has just one bench and here too West UP which owes for more than half of pending cases has none? Why a single bench only for UP at Lucknow which is so close to Allahabad just about 200 km away and not anywhere else as in West UP where people have to travel about 700-800 km on an average all the way to Allahabad as there is no bench here? Why a bench for Lucknow since July 1, 1948 for just about 8 districts but no bench for West UP even in 2019 for 26 districts for more than 9 crore people living here which constitutes for nearly half of the population of UP? Can this be justified on any ground and under any circumstances? Certainly not!

If Lucknow is capital then so is Bhopal which is capital of Madhya Pradesh but which has neither high court nor bench which are at Indore and Gwalior and same is true for Dispur which is capital of Assam, Bhubaneshwar which is capital of Odisha, Dehradun which is capital of Uttarakhand, Thiruvananthapuram which is capital of Kerala, Raipur which is capital of Chhattisgarh, etc! Allahabad High Court must get its due share as it has maximum pending cases, maximum Judges and what not yet has just one bench since 1947 till 2019 which is most shameful and most disgraceful! Allahabad High Court needs special care and not special neglect as most unfortunately we have been seeing till now!

Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world yet its former Chairperson Darvesh Yadav just within three days of being elected is brutally murdered right inside court premises by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti? Just recently we saw a senior and eminent lawyer in Meerut named Mukesh Sharma being brutally murdered just adjacent to his house while he had gone for walk and similarly in other districts of West UP we saw lawyers being murdered! Another advocate Zahid was murdered in Baghpat! In Muzaffarnagar still another advocate Ameer Saifi was murdered! For how long will West UP’s legitimate claim for a high court bench be consistently ignored?

Needless to say, UP must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful state like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Bluntly put: Is this is what Article 14 which talks about right to equality stands for? Is Centre not making an open mockery of Article 14 of Indian Constitution? Are the people of West UP not entitled to get “speedy justice”, “justice at doorsteps” and “cheap justice” just like the people of Karnataka, Maharashtra, Assam etc? Why is it that the high court and benches of 8 states are closer to West UP as compared to Allahabad? Why even Lahore High Court in Pakistan is closer to West UP as compared to Allahabad High Court? Still should a high court bench not be created here?

Needless to say, Centre must clarify its stand and not maintain a conspicuous and deafening silence on it! Former Attorney General Soli J Sorabjee had clearly said in 2001 while he was Attorney General that, “Centre is fully empowered to create a bench in any of the districts in West UP without any recommendation from the Chief Justice or anyone else in this regard.” Former Supreme Court Bar Association Chairman  Krishnamani had also said that, “Only by the creation of a high court bench in West UP will the people living here get real justice.”CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had appreciated the dire need for a bench in West UP but also had said that it is for Centre to decide on it!

One hopes fervently that the new CJI would seriously look into it! He himself being a product of a high court bench should certainly go into it deep and set up benches not just in West UP but also in other needy places in different states as was rightly recommended by 230th report of Law Commission of India also so that more talent comes to the horizon and we see that the “poorest of poor” people get “justice at doorsteps” and they are not compelled to travel a long way to get justice as it is they who have to spend more and suffer innumerable hassles! He must act as Centre has failed to act in last more than 72 years especially in case of UP and Bihar which inspite of being lawless states have just one bench and no bench respectively!

It is most shocking that peaceful states like Karnataka, Maharashtra, Assam, Madhya Pradesh among others have more high court benches but the most lawless states have either just one or no bench at all! This must be set right at the earliest! Let’s hope that the CJI designate – Sharad Arvind Bobde will act courageously on this score and do what none of his predecessors has ever dared to do and tended to play safe by always leaving the ball in Centre’s court which has done just nothing at all even though the incumbent Law Minister of India Ravi Shankar Prasad is from Bihar and the PM Narendra Modi himself is from UP representing Varanasi!

Sanjeev Sirohi

Checklist of Licenses for starting a food business in India

Akshita Sodhi

Food business is one of the fastest growing businesses in India. With increase in urbanisation and Industrialisation, there is a change in the lifestyle of people. Today half of the population of the country, prefers to buy market food or to eat food outside. In the fast moving life of today’s world, where no one has time to make food at home, people prefer it more to eat outside or to eat the fast food.

There are various kinds of formalities which you need to follow for starting a food business in India. Apart from getting licenses there are various other legal formalities as well which you need to follow up to avoid any kind of further hindrance in your business.

Before starting a food business in India, its very crucial for you to decide carefully what kind of food business you want to start,whether manufacturing food business, storage, transport, e commerce, retail, food service or imports and what are its pros and cons.

Moreover, it’s also very important for you to decide carefully what kind of company you want to start for your food business. Limited liability Company, Limited Liability Partnership, and Sole proprietorship are some of the most common kinds of associations for starting a business in India.

In this article, I shall be going to brief you about what kind of licenses are required to start a food business in India:-

FSSAI license: Food Safety and Standards Authority of India is that autonomous body which is responsible for promoting public health and tomainian the standard of food and to regulate food safety, its main duty is to supervise food safety. Depending on your eligibility, location or need you can get either central license or state license from FSSAI. For applying for the FSSAI license, you can surf the official of FSSAI. If your food business is operational is more than one state, it’s crucial for you to get central license.

There are various kinds of licenses which are provided by FSSAI, some of them are:-

State license, Central license, Registration and Railway license.

The licenses issued by FSSAI can be applied for a maximum period of 5 years.

 

The fee charged by FSSAI for Central license is Rs 7500, for Registration its Rs 100 , for starting a food business at railway its Rs 2000

The list of documents required for registration:-

Photo of Food Business Operator
Document for Identity Proof like Ration Card, Voter ID Card, PAN Card, Driving License, Passport, Aadhar Card, Senior Citizen Card, Department Issued ID
Supporting Documents (if any):- NOC by Municipality/Panchayat, Health NOC.
You can also get the  list of Documents Required for central licensing and state licensing by clicking on the link

 

Liquor license: You can apply for a liquor license to the excise department of your state for the sale of liquor. But it must be noted that liquor is prohibited in states of Bihar, Gujarat and Nagaland as well as the union territory of Lakshadweep. Moreover, every state has its own procedure and rules and regulations for providing liquor license, for this you need to apply to the excise department of your state.

Health/trade license: For the purpose of starting a food business in health trade, or any business which may affect the public health directly, every entity is required to get health trade license for the same. If you get a health Trade license, you have authority to trade in any food items and services which may have direct impact on public health. It is provided by Municipal Corporation. For example in delhi, for applying for the health trade license, you need the following documents:an application form, a copy of site plan and key plan, an indemnity bond of Rs 100 on non judicial stamp paper and proof of legal occupancy.

Eating House license: Eating house is a place where different kinds of food and drinks are served to the general public for consumption. For applying to eating house license, you need to make an application to the police commissioner of your state. For getting the eating house license, you need to go to the official website of the state police in your state, and then you need to fill the application form and upload the requisite documents.

Fire security license: You need to get a NOC from chief fire officer to get the same. You can also apply online for the same, your premises might be inspected by the officer before issuing you an Noc for the same. For getting fire security license, you need to apply toDivisional Fire Officer, located in the Head Quarters of every district for the same. Some states requires fire security alarm as a requisite for issuance of license for the same.

Environment Clearance: You need to apply to the state or city Pollution Board to get the Environment Clearance Certificate. It’s a Certificate given by the government that your business is environmentally benign and is not causing any pollution to the environment. It’s also being issued by the state of your city. You can surf the official website of Ministry of Environment Forest and climate change.

Signage License: For the purpose of advertising and promoting your business through the use of words, signs and pictures you need a permit for the same called the Signage license.You need to apply to the local municipal body to get the license for the same.

Trademark Registration: You need to register the trademark of your shop or entity to avoid copyright infringement. Moreover Registration of your entity is necessary so that some other company or entity should not misuse you name and good will in the market for profit. For the registration of trade mark, you can surf the official website of IP India.

Music license: To avoid Copyright infringement of any kind of music,lyrics and albums, you need a license for the same from Indian Performing Right Societies(IPRS) to play music or videos in your restaurants, clubs, pubs or cafes.

Registration under Shop and Establishment Act: Every entity or business is required to register itself under the Act within 30 days of commencement of business. At some places establishing shops in residential area is not allowed, this act was enacted to regulate the same as well. This act also ensures that the workers in the entity should get proper wages, flexible working hours, leaves and better working conditions as per provided by the act. Each state has its own Shops and Establishment act.

“Stop Stubble Burning, Construction & Demolition Activities In Delhi-NCR”: SC Issues Slew Of Directions To Curb Air Pollution

We all know fully well that air pollution in Delhi and even adjoining regions like several districts of West UP are crossing all limits and this year even in districts adjoining Delhi like Meerut where air pollution was never felt so much as is now being felt. Delhi is obviously the worst affected and this is most concerning for our nation as it is the national capital of India. India’s reputation in containing air pollution right in the capital itself is at stake and it is high time that a host of strong steps are taken in the right direction to ensure that it is checked immediately.

It must be mentioned here that the Apex Court Bench of Justices Arun Mishra and Deepak Gupta on November 4, 2019 took up the issue of air pollution in Delhi-NCR in the wake of the Environment Pollution Control Authority (EPCA) declaring a public health emergency taking note of the severely deteriorated air quality. First and foremost, it is pointed out by the Bench that, “We have heard Mr Bhrelal who has pointed out about irrigation. We have also heard some experts from the Ministry and the IIT and learned senior counsel for the parties and Amicus Curiae.”

Without wasting any time, the ball is then set rolling by pointing out that, “Today everyone is concerned about level of pollution in Delhi and NCR region. This is not something new, every year this kind of piquant situation arises for a substantial period. It is compounded by the fact that year to year in spite of various directions issued by High Court, other authorities including this Court, the State Governments, Government of NCT of Delhi and the corporations of Delhi and nearby States are not performing their duties as enjoined upon them. This is a shocking state of affairs in which we are put as on today. This is blatant and grave violation of right to life of the sizable population by all these actions and the scientific data which has been pointed out indicates that life span of the people is being reduced by this kind of pollution which is being created and that people are being advised not to come back to Delhi or to leave the Delhi due to severe pollution condition which has been created. There cannot be large scale exodus. People have to perform their duty in Delhi also and people cannot be evacuated from Delhi being a capital city. We are at a loss to understand why we are not able to create a situation in which this kind of pollution does not take place, that too in a routine manner every year. Obviously, it is writ large that the State Governments, Government of NCT of Delhi and civic bodies have miserably failed to discharge their liability as per the Directive Principles of State Policy which have found statutory expression, they are being made statutory mockery and also the directions of this Court and High Courts in this regard are being violated with impunity.”

Why should heavy fine not be imposed on the respective State Governments and those civic bodies who have failed utterly to discharge their liability  as enshrined in the Directive Principles of State Policy? Why should they be allowed to get away freely or lightly? Why should they not be taken to task forthwith?

Without mincing any words, the Bench then goes forth to very rightly point out in simple and straight language that, “Time has come when we have to fix the accountability for this kind of situation which has arisen and is destroying right to life itself in gross violation of Article 21 of the Constitution of India. No farmer can be said to be having a right under the guise that he is not having sufficient time to use the stubble for the purpose of manure, since they have less time between two crops, cutting and sowing of next crop. As such, they cannot by burning it in their fields, put life of sizeable population in jeopardy.” Farmers too must understand their responsibility which they owe to the nation! Centre and respective State Governments too must do all that they can to ensure that the farmers are helped in every possible manner to help dispose of the remains without polluting the atmosphere! They have so far not done enough adequately in this direction!

Furthermore, it is then pointed out in the next para that, “It is apparent from the satellite images which has been produced before us for the period 30.10.2019 to 04.11.2019. The satellite image clearly indicates that in Punjab there is widespread stubble burning which has taken place as compared to Haryana, in which only in four districts it has taken place. There is some burning in Western U.P. also. It could not have taken place even in a singular district or gram panchayat area as we live in a civilized country in which such kind of activities which create such menacing pollution not only in the area concerned but to the neighbouring States also, by ill-effects of that people cannot be left to die or to suffer various ailments.”

While apportioning liability on all, it is then held by the Bench in the next para that, “Everybody has to be answerable including the top state machinery percolating down to the level of gram panchayat. The very purpose of giving administration power up to the panchayat level is that there has to be proper administration and there is no room for such activities. The action is clearly tortuous one and is clearly punishable under statutory provisions, besides the violation of the Court’s order. In the circumstances, as widespread stubble burning has taken place, we direct the States of Punjab and Haryana and adjoining State of Uttar Pradesh where there is blatant violation which has taken place, to halt it. We direct the Chief Secretaries of the States of Punjab, Haryana and Uttar Pradesh to be present in this Court on 06.11.2019 and Chief Secretary of Government of NCT of Delhi.”

Not stopping here, it is then further added very rightly in the next para while issuing strict directions that, “We direct the Chief Secretaries of the State Governments, District Collectors, Tehsildars, Director General, IG/SP and other police officers of the area of concerned police station and the entire police machinery to ensure that not even a single incident takes place of stubble farming henceforth. If it is found that any stubble burning has been made not only that person doing it will be hauled up for the violation of the order passed by this Court but the entire administration, right from the Chief Secretary, Commissioner, Collector and all other concerned functionaries and Panchayats. Gram Pradhan/Sarpanch Panchayat are also directed to ensure that no such stubble burning takes place.”

What’s more, it is then further strongly observed in the next para that, “Let the State Governments of Punjab, Haryana and Uttar Pradesh and officials also explain that why they should not be asked to pay the compensation for tortuous liability as they have acquiesced and due to their failure in preventing stubble burning which is in utter violation of the Public Trust doctrine, why they should not be held liable to compensate, and also the incumbents who are burning the stubble in spite of clear restrictions imposed by this Court and statutory prohibition.” In other words, the Apex Court has made it abundantly clear that it is not just the farmers who indulge in stubble burning who will be held accountable but also the State Governments of Punjab, Haryana and Uttar Pradesh will have to be held accountable for not doing enough to check air pollution in their respective states and allowing stubble burning with impunity by not taking any strict action against those indulging in it!

As if this is not enough, it is then also further added in the next para while fixing accountability that, “We also direct the Sarpanch of each and every Panchayat and SHO of the concerned area to prepare inventory of the incumbents who have burnt the stubbles in their fields. We also direct the Sarpanch, Gram Panchayat as well as the concerned police of the area and local administration including the Collector and all subordinate authorities to ensure that no further stubble burning takes place. In case, any stubble burning takes place responsible machinery from top to bottom and Sarpanch, Gram Panchayat shall be liable for tortuous act and for not complying with the order passed by this Court and let the Gram Panchayat also advise forthwith the villagers not to involve in stubble burning anymore and take appropriate action.” Very rightly so! Unless accountability is fixed and very strict action is taken against all those violating the rules, we cannot control air pollution under any circumstances no matter how much day dreaming we continue to indulge in! This was exactly what eminent and senior Supreme Court lawyer and former Solicitor General of India – Harish Salve also very rightly pointed out while talking in a news channel!

Be it noted, the Bench then very rightly directs and underscores in the next para that, “We also direct the State Governments, Central Government as well as the Government of NCT of Delhi to take immediate steps to take care of the emergent situation due to air pollution which has taken place. No doubt about it that everybody knows the situation, let the steps be taken forthwith with the help of the experts. We direct the Government of NCT of Delhi as well as various corporations to work in tandem and to see that waste and garbage which is contributing to air pollution is tackled at war level. The efforts should be made right from today without any loss of time.”

Each and every one of us who stay in India must adhere to what the top court has said so rightly, elegantly and commendably! If we abide by what the top court has said, we would only be improving not just our own lives but also other lives and the lives of the coming generations! No time should be wasted on this score as the Apex Court has rightly emphasised!

While elaborating further, it is then pointed out by the Bench that, “Let the EPCA consider as it was suggested by Ms. Aprajita Singh, learned senior counsel and the learned Amicus Curiae that diesel vehicle should not enter the Delhi. Let the EPCA immediately take the steps in this regard as may be considered appropriate as it has the power to do the needful taking care of the emergent situation.”

Going forward, it is then envisaged that, “With respect to demolition and construction activities we direct that no demolition and construction activities take place in Delhi and NCR region. In case it is found that such activity is done, the local administration as well as the municipal authorities including the Zonal Commissioners, Deputy Zonal Commissioners shall be personally held responsible for all such activities. They have to act in furtherance of the Court’s order and to ensure that no such activity takes place.”

It must be brought out here that the Bench then adds that, “We are informed that use of coal based industries have been stopped. In case any violation of this is found the concerned person including Zonal Deputy Commissioner would be liable for violation of the order of this Court and liable to be punished for contempt of Court.”

Coming to odd/even scheme, the Bench then notes that, “It was also pointed out by Mr. Sanjiv Sen, learned senior counsel, that during odd/even scheme in Delhi more use of two wheelers has taken place and they are being plied more causing equal pollution, as such no useful purpose is being served by stopping the use of certain vehicles only on the basis of odd and even numbers. He has also pointed out that it would be appropriate to stop the use of diesel vehicle, in case it is necessitated as the diesel vehicles cause more pollution as compared to petrol and CNG vehicles. Let the Government of NCT of Delhi explain this aspect and file the data in this regard in the Court on the basis of the previous experience and whether if three wheelers and taxies are plying more on road during such restriction and relevant data be placed.” Definitely, if this is done carefully and correctly, we would come know the real picture on air pollution!

Briefly stated, while questioning the Odd/Even Scheme sponsored by the Delhi state government, it is then mentioned in the next para that, “During Odd/Even Scheme what is the difference being caused by stopping use of four wheelers when various other contributing factors are not taken care of by Government of NCT of Delhi.”

To put things in perspective, the Bench rightly points out the reasons for air pollution that, “As per the Air Quality Inspection Construction and Demolition Activities in Delhi/NCR region causing damage in Noida, Faridabad, Gurugram, Ghaziabad as well as instances of Delhi have also been mentioned.

1.  Construction and demolition.

2.  There is open dumping of waste/garbage.

3.  Unpaved road/pit.

4.  Road dust.

5.  Garbage burning.

6.  Traffic congestion.

As it turned out, the Bench then holds that, “We direct that construction, demolition and activities be stopped forthwith as well as garbage burning. In case, any person is found in construction and demolition activity and garbage burning in Delhi and NCR region, he/she shall be penalized. Any person doing construction and demolition activity in violation of this order, shall be penalized with Rs. 1 Lac for such activity. For garbage burning he/she shall be penalized with Rs. 5,000/- and besides liable for violation of the order passed by this Court to be dealt with in accordance with law.”

Moving on, the Bench then further holds that, “With respect to open dumping of waste and garbage, we direct the Government of NCT of Delhi as well as the concerned Municipal Corporation to chalk out immediate plan and to ensure that waste and garbage to be removed to safe places forthwith and also to ensure that no open dumping takes place. We direct Zonal Deputy Commissioner to be responsible with other officers in this respect. Let road-maps be prepared so as to provide proper amenities in order to prevent open dumping of waste and garbage, and be placed before this Court within four weeks.”

Now come to think of roads, the Bench on this score lays down that, “For taking care of the road dust let water sprinklers/dust suppressors be used on the roads. An IIT expert suggested about the appropriate water pressure for the sprinklers. At what pressure water should be sprinkled so as to reduce the pollution and dust so that it does not add to the pollution. Let the Corporations act on advice of the expert of the IIT. Such roads where traffic congestion is more, let traffic plan be also prepared in such a manner so that there is no extra burden on a particular road so that traffic congestion is taken care of. It is for the concerned traffic authorities to take immediate steps in this regard.”

More importantly, it is then observed in the next para that, “Since we are fixing the liability on the person responsible for inaction at the village level as well as three States in the NCR regions as well as Delhi, let the widest publicity by all means of publication i.e. Television, Media, newspapers, Radio be made. In Gram Panchayats by beat of drums also and other modes to ensure that villagers are made aware of their responsibility and liability towards the other humans so that they do not involve in such acts. Let the Gram Panchayat, police station, district and taluk levels by the concerned administration take steps in this regard. Let the State Governments also take the requisite steps to extinguish the stubbles which are burning and for that let State Level High Level Committee meet forthwith and take appropriate decision and implement it. Steps taken be informed to this Court on 06.11.2019 by the concerned Chief Secretaries of the three States and Government of NCT of Delhi.”

No less important is what is then stated in next para that, “Let the concerned authorities of EPCA meet forthwith and take a call in this regard with respect to industrial activities which are causing pollution on how to control it. We also direct all pollution control Boards of three States and Government of NCT of Delhi that polluting industries/activities against norms are put to halt forthwith.”

In addition, it is also then directed that, “It was also submitted by M/s. Sanjiv Sen and Gopal Sankaranarayanan, learned senior counsel that in certain States generators are also being used which increase pollution mainly due to cut off in the electricity supply. Generators in Delhi also add to pollution in Delhi as well as in NCR region. Let the State Governments and Government of NCT of Delhi ensure that electricity is not cut so that generators are not used and let no generators be used till next day of hearing except in emergency/healthcare services.”

Last but not the least, it is then held that, “Let the State Governments, NCT of Delhi and also the Government of India prepare a road map for preventing this kind of situation in future and be placed before this Court, within three weeks. Let the Action Taken Report be submitted within four weeks. Directions/order to be effective unless otherwise ordered.”

In conclusion, it is high time and there is no reason why Centre, Delhi government and governments of neighbouring states of Delhi like Punjab, UP and Haryana among others should not obey strictly the directions laid down by this top court in this latest, landmark and extremely laudable judgment. There is no reason why pollution of air can’t be controlled if the commendable directions laid down by the Apex Court in this noteworthy case are followed in letter and spirit. We all also must as good citizens do our best to contribute as much as possible to control air pollution as it is we ourselves who are worst affected by it!

Sanjeev Sirohi

Judicial Panel To Probe Lawyer-Police Clash At Tis Hazari Court Complex

To start with, it has to be remarked first and foremost that in the aftermath of the most unfortunate ugly violence that broke loose at Tis Hazari court on November 2 between lawyers and police which left many injured, the Delhi High Court without wasting any time on November 3 very rightly constituted a judicial committee to conduct an enquiry within six weeks into November 2 violence. Retired Justice SP Garg will be the head of this judicial committee. He will be assisted by Director (Intelligence Bureau), Director (Central Bureau of Investigation) and Director (Vigilance).

To say the least, the Delhi High Court while taking this ugly violence between lawyers and police most seriously wasted no time in directing the Delhi Police Commissioner to transfer two senior officers – Special Commissioner of Police (law and order) Sanjay Singh and Additional Deputy Commissioner of Police Harendra Kumar Singh for ordering the firing in which two lawyers got injured as they suffered bullet injury and for their alleged role in this incident. Just transferring these two senior police officers to some other place is not enough. They must be held accountable and punished adequately if they are really guilty of ordering firing on lawyers or in any other manner! Allowing police officers to escape lightly in such cases only serves to send a wrong message that police officers can get away even after indulging in wrong doing and this can never be approved of under any circumstances in a democratic country like India!

But most shamefully this is what we see happening in our country mostly. Police have no right to beat anyone on the slightest provocation and they too are bound by law just like lawyers! But what we see on ground is just the reverse!

What is worse is they are not given life term or death penalty for custodial deaths and are allowed to get away just by transfer or suspension for a brief time! Why violence by police is taken so casually in India? If lawyers resort to violence then a lot of brouhaha is made by media but when it comes to police the reaction is most lukewarm! This is what is most condemnable!

Taking suo motu cognisance of media reports, a Bench of Chief Justice DN Patel and Justice C Hari Shankar urgently held court on afternoon of November 3 while issuing notices to the authorities to be present for hearing at 3 pm. It must be mentioned here that a suo motu proceeding is initiated when the court deems some issue to be important that needs urgent hearing. The Delhi High Court Bench directed Delhi Police Commissioner Amulya Patnaik to suspend two Assistant Sub Inspectors who allegedly dragged an advocate inside the lock-up and beat him up and another for shooting at the lawyers.

How can advocates be dragged like hooligans? Are lawyers hooligans? How can the lawyers be fired upon as if they are criminals and terrorists? How can police ignore that even in case of criminals and terrorists, they don’t fire until and unless the criminals or terrorists don’t fire on them? How can police ruthless action be justified by any sane person under any circumstances?

We all saw lawyers loosing their cool and beating policemen. This is because of the way police treated lawyers that lawyers lost their calm which they normally don’t lose. Media only shows lawyers beating policemen but rarely shows policemen roughing up lawyers as if they were hooligans and firing at them without any just cause! This is where the real rub lies! This only serves to evoke too much sympathy for police and contempt for lawyers which cannot be justified under any circumstances.

How can lawyers retain their calm if police opens fire on lawyers? How can lawyers retain their calm if police misbehaves with lawyers as if they were criminals and terrorists? How can lawyers retain their calm when their fellow lawyers are brutally fired at and beaten by police?

How can lawyers retain their calm when police personnel lathi-charged lawyers as if they were some rogues and scoundrels? How can lawyers retain their calm when police personnel vandalized their chambers? How can lawyers retain their calm when police did not spare even women lawyers as is being alleged? Assam Bar Council member Khushboo Verma who was at the Tis Hazari court said that she too was attacked by policemen while protesting against the incident! Can this be also dismissed lightly?

It merits no reiteration that violence under no circumstances can ever be justified but if we have to take a holistic view of this entire episode then we must admit that it was police who first roughed up lawyers and even fired at lawyers! The details even we don’t know fully but it is being shown in all news channels that it was police who started the fight over parking and even fired at lawyers! This barbarism on the part of police is most condemnable!

It cannot be lost on us that this high handedness on the part of the police prompted the Delhi High Court Bench to suspend two Assistant Sub Inspectors who allegedly dragged an advocate inside the lock-up and beat him up and another for shooting at lawyers as mentioned above and also order an ex-gratia payment of Rs 50,000 to Vijay Verma, Rs 25,000 to Ranjit Malik and Rs 10,000 for Pawan Kumar Dubey as these three lawyers were badly injured during the police firing on November 2. It asked the Delhi government to provide all possible medical help to the injured lawyers.

How can lawyers be expected to be calm if police behaves in such a disgraceful manner and beat their fellow lawyers in front of them and even fire at them? Why do we forget that even lawyers are human beings and they have not descended from another planet that they will never lose their cool even if their fellow lawyers are brutally beaten up, locked up and fired upon by police without any cross firing? All of us must think on it with a dispassionate mind and the reason why lawyers lost their cool are not far to seek!

It must also be mentioned here that the Delhi High Court Bench said that there would be no coercive action against the lawyers in connection with the FIRs registered against them by the Delhi Police. The Chief Justice of Delhi High Court – DN Patel asked Delhi Police how many FIRs were registered, to which Rahul Mehra who appeared for the Delhi government and Delhi police said that four FIRs were registered and one will be registered today. He also said that an FSL team was at Tis Hazari court and that an SIT has been constituted under a DCP. He further said that the ASI who took the lawyer to the lock-up has been suspended and that the Special CP Vigilance is also conducting an independent internal departmental enquiry to take further action against any suspended police officers.

To put things in perspective, when the Chief Justice asked if any FIR was lodged at the behest of the injured advocates, police informed the court that statements of only some of them have been recorded and the rest would be recorded today. The Delhi High Court ordered the Delhi Police Commissioner to record statements of the injured advocates. It was also ordered that an FIR be registered immediately and copies supplied to the court.

Meanwhile, Delhi Chief Minister Arvind Kejriwal visited the injured lawyers at St Stephen’s Hospital. In a tweet, he said that, “Yesterday’s incident was unfortunate…the way lawyers were fired at, I condemn it. I met the two persons who were injured in firing, they are stable now. All of their medical expenses will be covered by Delhi government.” It is heartening to note that even Kejriwal has condemned the ruthless manner in which the police fired at lawyers. Were they criminals or terrorists? Even criminals are not fired upon in such a brazen manner when they don’t have weapons! Why is this not being discussed in media? Why only lawyers anger in beating policemen is repeatedly being showed in media? Media must show the full truth and not just the half truth with several twists and turns in it!

As it turned out, senior advocate Mohit Mathur who is President of Delhi High Court Bar Association told the court that, “By saying one person fired gunshot, they (police) are putting forward a scapegoat to protect their team.” Lawyers certainly don’t carry weapons in court. So where does the question of lawyers firing at police arise? Mohit Mathur also rightly said that police are not allowed to carry fully-loaded weapons to the court complex and claimed that many protocols were flouted. He said that, “Many women lawyers were attacked. One advocate was dragged by 14 police officers to the lock-up..we have been attacked at our workplace.”

What Mohit Mathur who happens to be none other than the President of the Delhi High Court Bar Association has disclosed is most shocking and one is aghast to learn all this! Why were women lawyers attacked by police? Were they also criminals? Does police have birth right to attack woman lawyers whenever they want, wherever they want and as they want?

Why media is totally silent on this? Why one advocate was being dragged by 14 police officers to the lock-up? Was he a terrorist or a dreaded criminal? No, he was an officer of the court yet he was treated like a notorious criminal by the police without assigning any reasons!

Even if the advocates car hit a police jail van, this alone cannot be a reason to take him to lockup and beat him badly. Tis Hazari Bar Association Secretary Jaiveer Singh Chauhan while speaking on this said that, “He was taken inside a lockup and beaten up badly. The SHO came but was not allowed inside. The District Judges of the Central and West District along with six other Judges went there but were unable to let the lawyer out.” Why did the police not listen to all these Judges who personally went there? Why when the Judges asked the policemen to allow them to speak with the advocate were they not entertained? Why was the advocate beaten up at the first place as if he was some wanted criminal and not an officer of the court? Will this enhance the reputation of courts and lawyers? If advocate beat police media is very quick to highlight it but when police beats lawyers then why media fails to highlight it? How can police brutal action be condoned on any ground?

Jaiveer Singh Chauhan disclosed that, “We will decide the further course of action after meeting representatives of bar associations. We are getting a lot of support from bar associations of the different states, including Rajasthan, Punjab and Chndigarh. All the lawyers would abstain from work. We are abstaining from work till the time action is taken against the culprits.” Even lawyers of West UP and lawyers of Lucknow went on token strike on November 4 in support and solidarity of lawyers of Tis Hazari who faced police ruthless action including lathis not sparing even women lawyers and bullets also! The Delhi Bar Association called for an indefinite strike and it was also made clear that the strike would spread across the country if no action is initiated against the alleged erring police personnel.

It cannot be lightly dismissed that even the Supreme Court Bar Association has termed the incident an assault on the judicial system and said the accused policemen should compensate for the destruction caused to the chamber of lawyers. Preeti Singh who is Secretary of Supreme Court Bar Association said that, “We would not abstain from work but to show our anguish and solidarity, we will hold a protest march from Supreme Court to India Gate. The lawyers will wear a white band on their arm as a mark of protest.” A representative of the Delhi High Court Bar Association while expressing no faith in Delhi Police said that, “We want some other police to come to the court premises. We don’t want to face Delhi Police.” Very rightly so!

As it turned out, Bar Council of India (BCI) Chairman Manan Kumar Mishra, co-chairman Ved Prakash Sharma also have expressed full solidarity with the lawyers of Tis Hazari. Mishra also requested the L-G and the city’s police commissioner to immediately lodge complaints against the guilty and have them arrested. KC Mittal who is Bar Council of Delhi Chairman told the court that, “The departmental enquiry being conducted by the Special CP is a complete farce.” Vinod Dua who is also a lawyer and has a chamber in Tis Hazari court premises said that he had to hide in one of the chambers. But his is never highlighted in media!

Ikrant Sharma who is senior Vice President of Tis Hazari Bar Association said that they are abstaining from work in all district courts. He urged that CCTV footage be examined to ascertain the role of the real miscreants. He said that, “I would urge that the CCTV footage be examined to see whether it was the lawyer or the police who started the scuffle.” Rahul Dev Sharma who is an advocate said that, “When the word spread, we asked the police to release him. When they refused, it led to a clash during which a policeman fired at us.”

There can be no gainsaying that truth must come out and all those who are guilty must be punished most strictly. Policemen had no business to fire on lawyers. They also had no business to lock up lawyer just because his vehicle hit a police jail van and most crucially when Judges also arrived there and requested them to meet them, they should have at least allowed this and ideally should have promptly released the lawyer also in this case!

All those responsible for the violence must be sternly dealt with. Burning of vehicles, firing at lawyers, lathicharging even woman lawyers among other shameful incidents cannot be condoned under any circumstances! Let’s wait and watch what is concluded by the Judicial Committee which has been set up exclusively for this purpose! One  hopes earnestly that those who were behind this ugly brawl would be dealt with most strictly and not allowed to get away lightly under any circumstances!

Sanjeev Sirohi,

Justice Sharad Arvind Bobde To Be The New CJI From Nov 18

                                                 It is official now that the seniormost Judge of Supreme Court – Justice Sharad Arvind Bobde to take over from the incumbent Chief Justice of India (CJI) – Justice Ranjan Gogoi on November 18 just a day after Justice Gogoi retires as CJI on November 17! PK Mishra who is the Principal Secretary to the PM Narendra Modi presented the warrant of appointment to the CJI-designate – Justice Sharad Arvind Bobde in New Delhi on October 29, 2019. President Ram Nath Kovind on October 29 appointed Supreme Court Judge – Justice Sharad Arvind Bobde as the next Chief Justice of India from November 18! He was sworn in as Chief Justice of Madhya Pradesh High Court on 16 October, 2012 which he held till 11 April 2013 and was elevated to the Supreme Court on 12 April 2013.

                                    To state the obvious, the notification issued by the Ministry of Law and Justice states that, “In the exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, the President is pleased to appoint Shri Justice Sharad Arvind Bobde, Judge of the Supreme Court, to be the Chief Justice of India with effect from 18th November, 2019.” Justice Bobde has certainly an impeccable reputation of always being polite, precise and yet powerful in expressing himself in his judgments which he has rendered in last so many years in his official capacity as Judge of the Supreme Court! Justice Bobde will be the 47th CJI and will have a fairly long tenure of almost one-and-a-half-years, with his term set to end on April 23, 2021.

                                           Needless to say, Justice Bobde is the second Judge from Maharashtra’s Nagpur region to be appointed CJI after Justice Mohammad Hidayatullah who was the 11th CJI from 25 February 1968 to 16 December 1970. The legal fraternity in Nagpur is certainly extremely delighted over his appointment into the most prestigious chair of CJI and they have every right to feel delighted because Nagpur town becomes the talking point in each and every corner of the country due to his being appointed as CJI. 

                                            He was born on April 24, 1956 at Nagpur and hails from a family of reputed lawyers. His grandfather was a reputed lawyer. His father – Arvind Shriniwas Bobde was a two time Advocate General of the Maharashtra government in 1980 and 1985. Justice Bobde’s elder brother late Vinod Bobde was also a senior Supreme Court lawyer  and a Constitutional expert.

                                          It must be mentioned here that Justice Sharad Arvind Bobde completed Bachelor of Arts and LLB degrees from Nagpur University. Nagpur High Court Bar Association (HCBA) Secretary – Praful Khubalkar, who once worked as a junior lawyer in Justice Bobde’s chamber was all praise for the CJI-designate over his knowledge and professionalism. Without hiding his true feelings, Khubalkar said frankly that, “It’s a proud moment for the legal fraternity in Nagpur that Justice Bobde, once a member of the bar here, has been appointed to the top post in Indian judiciary. He has worked in the Nagpur Bench for several years and he was designated as a senior advocate from Nagpur. Justice Bobde’s arguments in the court as a lawyer used to be so impressive that people would flock to listen to him. I had the opportunity to be in his chamber. I was his junior and closely watched the way he used to work and argue cases. I had the opportunity to be in his chamber. I was his junior and closely watched the way he used to work and argue cases. We have seen Justice Bobde work as a lawyer, senior advocate and then as a Judge of the Bombay High Court here.”

                                                     Not stopping here, Khubalkar further went on to add that, “He used to encourage junior lawyers. Senior members and lawyers here are very happy and delighted over his appointment. In his honour, we are planning a grand felicitation programme.” Nagpur District Bar Association President Kamal Satuja said that, “It was a matter of great pride that a legal luminary from Nagpur has been appointed as the CJI. He is a role model for all members of the legal fraternity. He will always be a source of inspiration for young lawyers who will be encouraged to strive for excellence. It is not only a dream come true for Justice Bobde, but for the entire legal fraternity.” There can be no denying it!

                                               We must also remember that Justice Bobde was appointed an Additional Judge of the Bombay High Court on 29 March 2000 just two years after he was designated as a senior advocate and remained a Judge of Bombay High Court till 15 October 2012. He had a practice of over 21 years and was involved in several high stake cases, including the Adarsh housing society scam and the PIL against Lavasa Corporation Limited. He had the power to always convince Judge by his strong persuasive power armed with deep knowledge of law while he was lawyer for which he shall be always remembered as the lawyers of Nagpur never tire to point out very rightly!

                                               Frankly speaking, when asked about what were his best moments in his 22 years as a lawyer, he took no time in replying honestly that filing insolvency pleas on behalf of 3.9 lakh Maharashtra farmers to save them from debt recovery officers was a very satisfying case. He candidly disclosed that, “The farmers were perennially debt ridden because their products didn’t even fetch them the money invested to grow crops. There was an agitation by Sharad Joshi to stop debt recovery officers of cooperative banks from entering the village as they were taking away the utensils and other items from the farmers’ homes. I advised them and then filed insolvency pleas on behalf of farmers. The Bombay HC and later SC stayed debt recovery from farmers.”  

                                       While recalling his experiences as a Judge, he pointed out that he dealt with a case of a rape-cum-murder of a young girl. A labourer Arumugam was convicted and sentenced. But the investigating officer committed suicide and left a note confessing that he had framed the labourer by planting false evidence and tutored witnesses. Justice Bobde then pointed out that, “I was of the opinion that not only the man should be acquitted, but there should be prosecution of the witnesses who gave false evidence. This case made me realise why a Judge should not only seem to do justice but also strive to do justice by looking deeply into every aspect of every case.”

                                                    It cannot be lost on us that it was Justice Bobde who while being on the Constitution Bench had first pushed for mediation of the Ayodhya dispute in order to “heal heart and minds”. It also cannot be ignored that it was Justice Bobde who had spoken up repeatedly during the 40-day hearings in court on the need to bring the bitter acrimony between the two communities to an end. During the hearing, he had very rightly observed that, “We cannot undo what has already happened. But we can put an end to the acrimony, heal the relationship between the two communities.” What can be more important than this what Justice Bobde has so very rightly pointed out! Justice Bobde has handled many important cases in his more than six-year tenure as a Supreme Court Judge!

                                                  It must be recalled here that it was Justice Bobde who was part of the three-Judge Bench who passed the historic interim verdict that was passed on May 18, 2018, which set aside the order of Karnataka Governor Vajubhai Vala granting Karnataka Chief Minister BS Yeddyurappa 15 days to prove his party’s majority and instead directed that a floor test be conducted within 24 hours. On the administrative side, Justice Bobde headed the first-of-its-kind three-member in-house Committee, also comprising of Justices Indira Banerjee and Indu Malhotra of Supreme Court which gave a clean chit to CJI – Ranjan Gogoi who was facing serious allegations of sexual harassment leveled by a former Supreme Court staffer as they found no substance in those allegations leveled by the woman staffer on CJI Ranjan Gogoi!

                                      It deserves to be mentioned here that a few of the other important decisions passed by Justice Bobde include the two-Judge order passed in 2017, where the Apex Court rejected a woman’s plea seeking termination of her foetus, after reviewing a medical report that the 26-week-old foetus had a chance of survival; and a 2016 order passed by a three-Judge Bench which had suspended the sales of firecrackers in the National Capital Region, citing the extreme pollution. His notable judgments include his bold opinion upholding privacy as a fundamental right. He wrote that the first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. He also rightly wrote that, “There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy.”

                                                 Happily enough, Justice Bobde was also part of the Apex Court Bench which had rightly insisted that a citizen cannot be deprived of essential services and welfare subsidies of the State for lack of an Aadhaar card. He was also a member of the Apex Court Bench which had rightly suspended the sale of firecrackers in the National Capital Region in 2016 to curb pollution. In 2016, he was part of a Bench led by then CJI TS Thakur which ruled that seeking votes in the name of religion might be a greater evil than whipping up sentiments based on caste or religion. In 2017, he upheld that Karnataka government’s ban on a book on the grounds that it outraged the religious feelings of Lord Basavanna’s followers.  

                                                         It is most heartening to note that Justice Sharad Arvind Bobde is among the seven Judges of the Supreme Court who have disclosed their assets on the Apex Court’s website. When his attention was drawn to the thin presence of women Judges in the Constitutional Courts, he said politely that, “I will strive for an objective and unbiased approach to select more women Judges for the High Courts and the Supreme Court. But, the problem is their availability. They have to be 45 years or more to be eligible for selection as HC Judges. So, we cannot create woman Judges for Constitutional Courts overnight. They have to be in the system.” When asked whether there is a systemic bias against selecting more women Judges, he retorted that, “No, it is because of their non-availability. There could be another reason for this. Whenever the Collegium proposes a name to government for appointment as HC Judge, a steady stream of complaints pour in making all kinds of allegations. May be, the women do not want, and rightly so, to get enmeshed in such unwarranted controversies created by frivolous complaints.”

                                           On the question of age of Judges, Justice Bobde is on the same page as CJI who proposed to the Union Government to increase the retirement age of High Court Chief Justices and Judges of High Court to 65 years from the present 62 years. He struck the right chord when he said that, “It will ease the competition to become a Supreme Court Judge. But more importantly, it is a waste of experience and talent acquired over the years, if a Judge is eased out of the system at the age of 62 years when the person is at the peak of his intellectual ability.”   

                                       On appointments of Judges, he said that, “I agree there should be transparency in appointments but I also believe that protection of a person’s reputation is also important. We don’t complain why someone is not inducted in the Cabinet, as reasons for non inductions are not crucial. Similarly, in the army, do you say that why so and so has not been made a general? I don’t think withholding such things amount to secrecy, it’s primacy.”

                                                       While defending the time taken in the appointments of Judges, he agreed that the process was long drawn but said there was reason for it. He said that a lot of inputs are taken into account while appointing the Judges adding also that the information is processed at the High Court Collegium level, then at the Supreme Court level, and sometimes even independent information is taken into consideration. Many senior lawyers have wished him and hoped that justice will be delivered in time under his leadership! Sanjay Hegde who is a senior advocate in Supreme Court too said that, “I wish him good luck and good health, for the task ahead. Hopefully, he will be a calming influence in what looks like increasing turbulent times. Many high courts are working at half strength due to lack of appointments. His pleasant but firm personality may yet smoothen the path of judicial regeneration.”

                                                   We recently saw how Justice Bobde was heard saying in his courtroom that it was only lately that the Judges had understood the benefits of hearing a case continuously, without a break, as they had heard the Ayodhya dispute. This may be an indication that, in future, important cases may be heard on a day-to-day basis in the top court! What can be more good news than this for the litigants?

                                            In conclusion, it will be the biggest boon for litigants if cases are decided in time and Justice Sharad Arvind Bobde seems fully committed to achieve that! What more can litigants ask? We all must wish him the very best for all the challenges and opportunities that lies in his tenure as CJI!

                                              One is pretty confident that he will certainly rise high to fulfil the huge expectations that litigants and people have from him! His cool, calm yet firm approach while deciding cases will certainly immensely benefit our nation! He rightly says that, “Questioning by itself is healthy, but they should not be mala fide and vicious. Personal attacks on Judges are uncalled for and destructive. It is not only the authority of the judiciary which is under challenge by social media, online articles and opinion heads but every kind of authority worth its name. What is happening in society? There is challenge to authority of parents, schools, the Parliament. This is the age of challenging authority.” Justice Bobde has rightly pointed out and we all must strive to ensure that we behave in a disciplined way and refrain from such conduct which is totally uncalled for! There can certainly be no denying it!    

Sanjeev Sirohi