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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate

High Court Of England And Wales Rejects Pak’s Claim

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions and Disposition

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHARGE-1

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

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

CHARGE-2

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi

Article 370 And Article 35A Are Nothing But Treacherous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi,

Strictest Punishment For Mob Lynching Needed Now Most

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

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

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

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

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

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

A.                Preventive Measures

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

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

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

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

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

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

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

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

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

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

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

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

B.            Remedial measures

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

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

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

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

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

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

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

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

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

C.                   Punitive measures

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

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

 

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

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

 

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

Sanjeev Sirohi

UK Supreme Court Declares Prorogation Of Parliament Unlawful And Void

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

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

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

                  What is prorogation

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

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

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

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

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

         The run-up to this prorogation

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

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

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

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

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

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

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

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

                 This prorogation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi

Trivia of Right to Shelter and its Clash with Forced Evictions of underprivileged sections from public lands.

By:- Dushyant Mainali

Advocate

High Court of Uttarakhand

 

·  The Prologue

As per the Census of India 2011, India has more than 1.7 million homeless persons, of which 938,384 are located in urban areas. After nine long years thereafter, however, it seems to be nauseatingly misjudging the real number of homeless persons at present. Civil society organizations estimate that at least one per cent of the population of urban India (about 378 million) is homeless. Based on this estimate, it can be extrapolated that the population of the urban homeless is at least three million.[1] After a thorough study of the Zonal Integrated Police Network (ZipNet) data the Housing and Land Rights Network (HLRN) has calculated that between January 2010 and 31 May 2016, at least 23,846 homeless persons have died from a multitude of reasons: infectious diseases, chronic ailments, exposure to the cold, heat, and rain, violence, sexual abuse, murder, road accidents, and drug overdose.[2]

Living beneath open sky or in makeshift arrangements without any form of refuge seriously increases the susceptibility of the homeless to maltreatments, bloodshed, injury, disease, and untimely deaths. Many of these deaths are preventable, especially if the homeless had access to adequate

 

 

housing, food, water, sanitation, and healthcare facilities. Housing being the elementary stride towards dignified living, the shelter has been considered to be the fundamental comfort a person can have. In our Indian Society the axiom “Roti Kapda aur Makan” (food, clothing and shelter)  has been used to connote three bare minimum facilities, a human can have for a satisfactory life. Shelter despite being one of the three basic needs has always been in conflict with actions of the local administrative authorities in removing encroachments from public lands and demolishing unauthorized slums and housing structures by implication of force.

 

·    Right to Shelter ; as a social right and human right in the radiance of International Covenants/ Declarations

 

International Covenant on Economic, Social and Cultural Rights[3] recognizes the right of all individuals to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. Article 11.1 of the ICESCR obligates on the signatory nations as:-

 

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consen

 

Right to housing has also been recognized as a human right under the Universal Declaration of Human Rights[4]. Article 25(1) of Universal Declaration of Human Rights states as under: –

 

“Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

 

·       Right to Shelter; as a Fundamental Right in judicial eyesight.

In various pronouncements, the Hon’ble Supreme Court of India has broadened the meaning of life under Article 21 of the Constitution so as to include within its realm, the right to shelter. Before discussing the principles laid down by Supreme Court of India in this regard it will be apposite to refer a recent Allahabad High Court Judgment which carries the essence of the right to shelter through the reference of various precedents which came from the Supreme Court in

last many decades. In Rajesh Yadav v. State of UP[5] decided on 01.07.2019, the Allahabad High Court has held:-

“Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.

The signpost Judgment of the Supreme Court, which in 2019 the Allahabad High Court considered, is more than three decades old Olga Telis & Ors. vs. Bombay Municipal Corporation & Others[6], where analyzing the rights of the pavement dwellers the  Hon‟ble Supreme Court observed in para 32 of the text of the verdict, as:

“32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely,

that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.”

 

Thereafter in 1990 Supreme Court dealt with facets of right to life in a civilized society in Shantistar Builders vs. N.K Totame[7] and observed as under:

 

“.9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud- built fire-proof accommodation.”

After observing about the importance of right to housing and shelter with right to life the Apex Court went further ahead and categorically held that right to life implies right to shelter and in Chameli Singh vs. State of UP[8], has held that right to life implies right to shelter. The para 8 of the judgment it held:-

 

“8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under

an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights”.

 

Thereafter in plethora of judgments the Supreme Court kept

on amplification of the Right to Shelter. In a summarized manner A reference can be made to:-

 

Ø U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd. (1996):[9]The Supreme Court affirmed that: “The right to shelter is a fundamental right, which springs from the right to residence under Article 19 (1) (e) and the right to life under Article 21.”

 

 

Ø Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors. (1997):[10] The Supreme Court directed the state to construct affordable houses for the poor.

 

 

 

Ø People’s Union for Civil Liberties v. Union of India and Others:[11] In this case, a series of orders were passed for ensuring food to the needy under various schemes. The case also included the issue of homelessness and resulted in several landmark orders regulating shelters for the homeless across India.

 

In PC Gupta Vs State of Gujarat and Ors[12], in 1994, the Court went further by holding that:-

 

“the right to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As its part, allotment of houses was adopted, as is enjoined by Arts.38, 39 and 46, Preamble and 19(1)(e), facilities and opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imperative of the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21 of the Constitution”

 

Public Lands as a resource and Trusteeship of Government in scrutiny of Public trust doctrine.

If exercise of Right to shelter can be exercised is an unfettered manner and it is one of the fundamental rights then the demolitions of slums, huts and other makeshift tents on public lands can seem to be an oppression  of the poor by the state at first glance.

Then the question that occurs in forethought is, if not homeless people then who owns the Public Land?  Land being a resource like air, sea, forests and water being a gift of nature, should be made freely available to everyone irrespective of the status in life, this is the principle of ancient Roman origin Doctrine of Public Trust. The doctrine bids upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Indian Room of public trust doctrine

Accommodating public trust doctrine from common law, the Indian courts have applied this in their Judgments. Articles 48A and 51A of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This also enjoins upon the encroachment free forests and wildlife habitats.

Putting it minimally the Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the reasonable use of the public. As per this Doctrine of Public Trust, the State is the trustee of all national resources which are by nature meant for public use and enjoyment. The Public at large is the beneficiary of the natural recourses including lands. The State as a trustee is under a legal duty to protect the natural resources including public lands; that says these resources including lands meant for public use cannot be converted into private ownership. This Public trust doctrine has matured from Article 21 of the Constitution of India and has been refined by the successive judicial pronouncement.

 

·       The Catastrophe of Forced Evictions from Public Lands.

The tragedy of forced eviction of poor from the public land is widespread in India. The only documented resource in this respect is the data collected by Housing and Land Rights Network, New Delhi, with the assistance of partner organizations, reveals that government authorities, at both the central and state levels, demolished more than 41,700 homes, thereby forcefully evicting at least 202,200 (over 2 lakh) people

across urban and rural India. This is in addition to the over 260,000 people evicted in 2017, the majority of whom were not resettled by the state and thus continue to live in extremely inadequate conditions characterized by high insecurity, lack of access to basic services, precarity, and fear. Furthermore, data compiled by HLRN also reveals that at least 11.3 million people across India live under the threat of eviction and potential displacement.[13]

However, this can be said to be conservative estimate and presents only part of the real picture and scale of forced evictions in the country, as they only reflect cases known to HLRN. The actual number of people evicted and displaced in India as well as those facing the risk of eviction, therefore, is likely to be much higher

 

Definition of ‘Forced Eviction’ 

 

Definition of ‘Forced Eviction’ which HLRN has used in its report uses the definition of ‘forced eviction’ provided by General Comment 7 (1997)1 of the United Nations (UN) Committee on Economic, Social and Cultural Rights[14], as:

 

“The permanent or temporary removal against the will of individuals, families or communities from their homes or land, which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

 

The apathy of lack of Sustainable focus

Across the country, a large number of communities are struggling against projects and freeing public lands that threaten to displace them from their shleters. It is ironic that forced evictions and demolitions have continued across the country despite the much talked about central government’s Pradhan Mantri Awas Yojana (PMAY) or ‘Housing for All–2022’ scheme and other state government housing programmes that claim to focus on the provision of housing for marginalized and low-income populations in urban and rural areas.
Forced evictions violate multiple human rights and have severe impacts on the affected population, both in the short-term and long-term, as well as on social justice and the nation’s development and prosperity.

Despite the severity of the nationwide crisis, the issue of forced eviction not only continues to be ignored by both state and non-state actors, but is being intensified by multiple acts of commission and omission at various levels.

 

·       The repercussions of the Anti-encroachment & area beautification drives.

An analysis of the causes of forced evictions and home demolitions, finds that the majority occurred for reasons related to removal of houses of the urban poor, based on the perception of the state and its agencies that they are “illegal” or “encroachments.” Such “slum-clearance/anti-encroachment/city-beautification” drives, including those related to mega events and for implementation of “slum-free city” schemes, resulted in the highest number of people (over 94,000) being evicted in 2018.

 

 

 

Across the Nation, homes of the urban poor continue to be considered as “illegal/encroachments” by all branches of the government—the legislature, executive, and often the judiciary—and are demolished without any consideration that people have been living at those sites for decades, sometimes 40–50 years, and possess documents such as election and ration cards that validate their ‘legality’ and proof of residence. They work on improving the quality of the land, develop vibrant neighbourhoods and settlements, and contribute to the economy, but when the value of the land on which they live appreciates or when the state decides to commercially develop that land, they are considered dispensable and evicted.[15]

 

·       Prejudiced perception of poor posing security threat & Role of Courts in Forced Evictions

Without any strong foundation a general perception amongst many middle class and wealthy groups in Indian cities is that the urban poor pose a “security threat” to wealthier residents, it is also evident in the way that the state treats them. The Indian Courts despite recognizing Right to shelter as a fundamental right, loud and clear have always impressed upon encroachment free public lands. Sometimes they care for the displaced and often they become ignorant of their troubles.

Some examples of cases in which the High Courts in India have ordered evictions and removal of people from their place of living for encroaching upon government land and hence denying the right to housing/ shelter are the following:

 

·       Almitra Patel vs. Union of India (2000);[16]

·       Navniti CGHS vs. Lt. Governor (2004);[17]

·       Hem Raj vs. Commissioner of Police (2005);[18] and,

·       Unnamed Girl Child of 13 Days through its Mother the Natural Guardian Noori Sameer Mujavar v. State of Maharashtra andOthers, 2016: ( In this case though recognizing the housing need of those evicted, the state was absolved of its duty and obligation to provide housing to the affected families. )

 

Though the Supreme Court of India and several state High Courts have, in numerous judgments, upheld the right to housing/shelter as an incontrovertible component of the fundamental right to life, various court orders and their interpretation by state authorities have always been responsible for forced eviction. As recorded by HLRN even in a single year 2018 these Court orders resulted in the eviction of over 52,000 people, including in Chandigarh, Chennai, Dehradun, Delhi, Gurugram, Jaipur, Mumbai, Patna, Prayagraj, and Srinagar, among other locations.[19]

 

The Madras High Court, in various cases, ordered the removal of low-income houses considered as “encroachments,” primarily for the protection and “restoration of water bodies.” The order of the Madurai Bench of the Madras High Court in W.P. (MD) 20884/2018 resulted in a drive to remove 198 identified settlements along the Panaiyur Canal, during which people protesting the eviction were arrested. In W.P. 29811/2014, the Madras High Court ordered eviction in Konnur High Road, Otteri, Chennai, resulting in the removal of 315 families that had been living there for more than 50 years and who worked in the neighbourhood as domestic workers, construction workers, drivers, rickshaw-pullers, small vendors, and tailors. Similarly, in Salem, nearly

 

 

211 houses built on the water-spread area of the Vasishta River, reportedly, were demolished, on an order of the Madras High Court. In Kallikuppam, Chennai, 213 houses were demolished for the restoration of Korattur Lake despite strong protests from residents who had been living at the site for more than 30 years. The Madras High Court, in W.P. 1294/2009, had categorically prohibited the regularization of settlements situated near water bodies such as Korattur Lake, leaving no scope for in situ rehabilitation of the residents, forcing them to relocate to sites situated on city outskirts.

The Madras High Court (W.P. 36135/2015), while supporting removal of homes of the urban poor living along water bodies in Tamil Nadu, also ordered that, “In case the encroachments are not removed even after due process of law, the authorities are at liberty to remove such of those encroachments by use of force, if need be, and in such circumstances, the police authorities shall give all necessary assistance to the authorities for removal of the said encroachments.”

In Prem Nagar, Dehradun, an order of the Uttarakhand High Court in W.P. (PIL) 47/2013 led to the demolition of 50 houses. In the order dated 18 June 2018, the Court stated that, “Towns have been reduced to the status of slum areas,” and consequently, directed the authorities to remove all unauthorized encroachments on public streets “by using its might,” including the imposition of Section 144 of the Criminal Procedure Code60 to aid the demolition process and prevent any protest. In Jaurasi, Roorkee, authorities demolished 42 houses without any notice, acting on the order of the Uttarakhand High Court in W.P. (PIL) 148/2016 to remove encroachments for widening roads in order to accommodate the rise in vehicular traffic. The eviction was carried out despite clarification from the Supreme Court of India, in S.L.P. (C) 30026–30027/2018 that protocol had to be

 

 

 

followed before the eviction, including issuance of adequate notice and opportunity to be heard. Similarly, in W.P. (PIL) 170/2017, the Gujarat High Court ordered the removal of all “encroachments” without any delay from the streets of Ahmedabad to ease vehicular traffic. In its order dated 7 August 2018, the Court observed that if the “encroachers” were allowed “to remain in settled possession for a long period, they may claim a semblance of right.”[20]

These are however a mere references and not conclusive list of incidents but such actions indicate the increasing criminalization of poverty and go against the foundational principles of the Indian Republic as well as the Constitution of India that guarantees everyone the right to equality and the freedom to reside in any part of the country. They   also indicate the distortion of the notion of ‘public land,’ as the state that is entrusted with the protection of such land for the people continues to act against the people, by evicting them.

 

·       Right to shelter, evictions and observance of due process.

Although most of the incidents of the forced evictions are carried out under court orders, the judiciary has also upheld the right to housing in a few progressive orders and has taken care that even an encroacher be given opportunity of being heard. For instance, in W.P. (C) 11616/2015[21], the High Court of Delhi regularly monitored the condition of people evicted in 2015 in Shakur Basti (West), Delhi, and passed orders for the provision of electricity and installation of toilets. In its final judgment of 18 March 2019, the Court strongly affirmed the right to housing as a human right, held that forced evictions without due process, including survey, notification, and resettlement are illegal, and declared that the urban poor could not be viewed as “encroachers” or illegal occupants of the land. The Delhi Court held that forced eviction without following due process established in the case of Sudama Singh Vs. Government of Delhi[22] and other relevant policies would be illegal.

It stated therein that: “Once a JJ basti/cluster is eligible for rehabilitation, the agencies should cease viewing the JJ dwellers therein as ‘illegal encroachers.’ The decisions of the Supreme Court of India on the right to shelter and the decision of Delhi High Court in Sudama Singh[23] require a Court approached by persons complaining against forced eviction not to view them as ‘encroachers’ and illegal occupants of land, whether public or private, but to require the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in the above decisions [emphasis added].”

 

The High Court of Delhi also affirmed the ‘right to the city’ of the urban poor, in strong contrast to judgments which presume “illegality” of urban settlements and order eviction. The Court held that:

 

 

 

“The ‘Right to the City’ acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life. Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritizing the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution [emphasis added].”

 

The Supreme Court of India, in an ongoing case (W.P.(C) 55/2003)[24], has passed a series of positive orders to safeguard the rights of homeless persons across the country. In an order dated 7 September 2018, passed in these proceedings the Court reiterated that “housing is a basic need of everybody” and required all states / Union Territories to formulate a Plan of Action for the urban homeless which would include the methodology for identification of homeless persons, nature of shelters, and identification of land.

 

 

·                      Conclusion

 

Though, as it apparently comprehensible that the Supreme Court and several state High Courts have, in numerous judgments, have upheld the right to housing /shelter as an inalienable component of the fundamental right to life, but its travesty lies in the non foresighted state actions in demolitions

 

without prior rehabilitation of the poor encroachers. The due process is mostly not adopted in the encroachment removal drives and housing of the poor is demolished without providing them adequate shelter which renders them homeless and displaces and vulnerable to various diseases and sufferings and infringing their Right to Shelter.

Despite all judicial spotlights, on inalienable Right to Shelter the Governments have not taken any concrete measures to address this crisis of homeless and landless people. The adequate housing is a crisis in India, due to high cost of the land rights which are inaccessible for the poor population, which precludes the approach of the human right to adequate housing for the vast majority of population. In the welfare state, course of action of drawing balance  between public trust of public lands, and Right to shelter need to be re- visualized in order to respect and uphold the Right to shelter of the poor marginalization and destitute sections of the society.

******************

[1] Special Rapporteur on the Right to Adequate Housing, Housing and Land Rights Network (India)
[2] http://zipnet.in/
[3] International Covenant on Economic, Social and Cultural Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 (https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx)

[4] The Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in Paris on 10  December 1948 (https://www.un.org/en/universal-declaration-human-rights/)

 

[5] 2019 SCC OnLine All 2555
[6] (1983) 5 SCC 545
[7] (1990) 1 SCC 520
[8] (1996) 2 SCC 549
[9] (1996) AIR 114 1995 SCC.
[10](1997) 11 SCC 121.
[11]People’s Union for Civil Liberties v. Union of India, W.P. (C) No. 196 of 2001.
[12] JT 1995 (2) 373
[13] Forced Evictions in India in 2018: An Unabating National Crisis, Housing and Land Rights Network, New Delhi, 2019
[14] The right to adequate housing (Art.11.1): forced evictions : . 20/05/97. CESCR General comment 7. (General Comments) (https://www.refworld.org/docid/47a70799d.html)
[15]  Ibid 13
[16] (2000) 2 SCC 679.
[17] WP (C) 5697/2002, High Court of Delhi, August 2004.
[18]WP (C) 3419/ 1999, High Court of Delhi, 14 December 2005.
[19]  Ibid 13
[20]  For Reference Official websites of the respective High Courts (ecourts.gov.in)
[21] ecourts.gov.in
[22] (2010) 168 DLT 218 (DB))
[23] supra
[24] E.R. KUMAR vs. UNION OF INDIA (https://sci.gov.in/case-status)

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi

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

 

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

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

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

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

“5. Continuance of existing laws and their adaptation-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi,

Right To Access Internet Is Part Of Right To Privacy And Right To Education: Kerala HC

It is highly remarkable that the Kerala High Court has just recently on September 19, 2019 in a latest, landmark and extremely laudable judgment titled Faheema Shirin RK Vs State of Kerala and others in WP (C) No. 19716 of 2019 (L) has taken a giant step forward by declaring clearly, categorically and convincingly that right to access internet is a fundamental right forming part of right to privacy under Article 21 of the Constitution of India. This commendable judgment was delivered by a single Bench of Justice PV Asha while allowing a petition filed by a student named Faheema Shirin challenging the unwarranted restrictions on the usage of mobile phones in a girls hostel.   The Kerala High Court also added that it also forms part of the right to education. Very rightly so!

To start with, the ball is set rolling in para 1 of this commendable judgment which briefly states the background of the case by saying that, “A 3rd semester B.A. student of Sree Narayanaguru College, Chelannur, Kozhikode, has filed this Writ Petition aggrieved by her expulsion from the hostel. It is stated that she has been staying in hostel run by the college which is an aided college affiliated to University of Calicut. It is stated that the inmates of the hostel were not allowed to use their mobile phone from 10 p.m. to 6 a.m. within the hostel and that undergraduate students were not allowed to use laptop also in the hostel. While so from 24.06.2019 onwards the duration of the restriction in using the mobile phones was changed as 6 p.m. to 10 p.m. The petitioner claims that though she, along with other inmates of the hostel, met the Deputy Warden – the 5th respondent, requested to convene a meeting of the inmates, explaining the inconveniences caused to them on account of the restrictions, the Deputy Warden or the matron did not respond. It is also stated that though a meeting was convened within a week thereafter, no discussion was made regarding the restriction of the electronic devices. It is stated that the 5th respondent sent a Whatsapp message informing that those who do not abide by the rules would have to vacate the hostel. The petitioner claims that she thereupon approached the Principal on 03.07.2019 and submitted Ext.P2 letter requesting to relax the restrictions. Thereupon, Ext.P3 letter was obtained from her in writing to the effect that she was not willing to abide by the new rule restricting usage of phone between 6 p.m. to 10 p.m. Thereupon her parents were asked to meet the Principal on 05.07.2019; the 4th respondent informed them that the petitioner has to vacate the hostel as she refused to abide by the rules; Ext.P4 memo dated 05.07.2019 was issued to her directing her to vacate the hostel immediately; respondents 4 to 6 convened a meeting of the hostel inmates on 08.07.2019 when the students were informed about the action taken against the petitioner based on her request to relax the rules and that the inmates were asked to give in writing their willingness to abide by the restrictions when all the hostel inmates except the petitioner submitted such willingness; on 11.07.2019, Ext.P5 notice was issued to the petitioner directing her to vacate the hostel within 12 hours; on 15.07.2019, the petitioner submitted Ext.P6 leave letter for the period from 12.7.2019 on 15.7.2019, as it was not possible for her to attend the classes since she had to travel nearly 150 km every day; when the petitioner reached the hostel on 15.7.2019 to vacate her room, it was seen locked and the hostel authorities did not allow her to take her belongings.”

Before proceeding ahead, it would be useful to mention the names of all the 7 respondents. They are as follows: –

1. State of Kerala represented by the Secretary;

2. University of Calicut represented by its Registrar;

3. University Grants Commission represented by its Secretary;

4. Principal Sree Narayanaguru College, Chelannoor, Balussery, P.O. Kozhikkode;

5. Deputy Warden, Women’s Hostel, Sree Narayanaguru College;

6. Matron, Women’s Hostel, Sree Narayanaguru College; and

7. SFLC.IN represented by its Executive Director, New Delhi.

No doubt, it is rightly pointed out in para 8 that, “The question to be considered is whether the restrictions imposed by the hostel authorities on use of mobile phones while enforcing discipline has infringed the fundamental rights of the petitioner, even assuming that such modification was brought about at the request from the parents.”

Going forward, it would be useful to have a quick look at the relevant part of para 9 which states that, “However in this case the question to be examined is whether such enforcement of discipline by restricting the use of mobile phones would result in curtailing the right of the students to acquire knowledge by different means. Using of mobile phones by itself would not cause any harm to anyone. If a restriction is unreasonable and arbitrary and infringes the fundamental right of an inmate, it cannot be said that the student has to abide by such restriction, especially when the inmate is an adult.”

Furthermore, while examining the impact of using mobile phone in hostel, it is then enunciated in para 10 that, “It is therefore necessary to examine whether usage of mobile phone during 6 pm to 10 pm would amount to indiscipline and whether the refusal to abide by the instruction in using it should result in expulsion from the hostel. It is stated that the object behind introducing such a restriction is to see that the students are utilizing their study time for study purposes alone. The respondents have not stated whether usage of mobile phone by the petitioner or by any inmate caused any disturbance to other inmates. Therefore, indiscipline comes only to the extent of disobedience of an instruction. Then the question is whether an instruction or restriction can stand in the way of acquiring knowledge by the inmates. It is also necessary to examine whether they can utilise the study time for study purposes using the mobile phones also, in this advanced world of technology. The college authorities as well as parents should be conscious of the fact that the students in a college hostel are adults who are capable of taking decisions as to how and when they have to study. It is a fact that there is large scale misuse of mobile phones; but that misuse can happen with the laptops also; it can be even before 6 pm and 10 pm, before and after the study time.”

While underscoring the growing indispensable importance and necessity of mobile phones in routine life, it is then rightly pointed out in para 11 that, “The mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life and even to a stage that it is unavoidable to survive with dignity and freedom. Though initially it was a mere replacement of land phone enabling one to connect another and talk, on the advent of internet the connectivity became so wide. On availability of more and more facilities, since the year 1998, the number of users gradually increased and as at present India stands 2nd in the world in the usage of internet. The facilities to access internet, which was initially possible only through desktop computers, later in laptop, is now available in mobile phones which are handy and portable; with more and more applications, connectivity became feasible for everyone everywhere even among the common man. Apart from the facilities to read E-newspapers, e-books, etc. one can undergo online courses also sitting at home or hostel and it is pointed out that there are courses under SWAYAM recognized by the UGC, which students can undergo even when they are undergoing regular studies in colleges. Though the respondent college has stated that there is no restriction for the inmates to use laptops, all the students would not be ordinarily able to afford to have a laptop in addition to mobile phone. Assuming that the purpose is to prevent misuse of mobile phones during study time, such misuse is quite possible with laptops also. Thus the purpose of such restriction would not be achieved. It would not be proper for the college authorities to impose such restrictions on students of the college going age even if it is at the request of parents, in their anxiety to see that their children are studying and not being misdirected through mobile phones. It is a well known fact that these phones as well as the modern technologies are prone to misuse. At the same time, the college authorities as well as the parents cannot be permitted to shut their eyes on the innumerable advantages out of internet on various aspects of learning with world wide connectivity, on its proper usage. Apart from facilities for interaction, exchange of ideas or group discussions, there are several methods by which the devices can be usefully utilised by its proper use by downloading of data or e-books or undergoing other courses, simultaneously utilising the facilities under the Swayam program of UGC, etc; knowledge can be gathered by adopting the method which one chooses. When one student may be interested in garnering knowledge by reference of books in libraries, one may be interested in referring to e-books or downloading data.”

While batting for more freedom for students above 18 years, it is then rightly articulated in para 12 that, “By compelling one that she should utilise the books in the library during the study time or that she should not access the technological means during a particular time or study time may not always yield positive results. A student above the age of 18 years shall be given the freedom to choose the mode for her studies provided it does not cause any disturbance to others. The schools in Kerala promotes digitalisation with smart class rooms and the modern technology has taken its place in all the fields even from primary section. Thus the usage of mobile phones in order to enable the students to have access to internet will only enhance the opportunities of students to acquire knowledge from all available sources based on which they can achieve excellence and enhance quality and standard of education.”

While quoting liberally from the landmark cases, it is then pointed out in para 15 that, “As found by the Apex Court in Charu Khurana v. Union of India (2015) 1 SCC 192, women still face all kinds of discrimination and prejudice and the days when women were treated as fragile, feeble, dependent and subordinate to men, should be a matter of history.” Similarly, it is then held in para 16 that, “In the judgment in Puttaswamy’s case (supra) the Apex Court held that right to privacy is held to be an intrinsic part of the right to life, personal liberty and dignity and hence a fundamental right under part III of the Constitution.”

Be it noted, para 18 then envisages that, “Though it is true that the Principal of the college is the supreme authority to enforce discipline as held by this Court in Manu Wilson’s case, Sojan Francis’ case, Indulekha Joseph’s case (supra) and that there cannot be any dispute that rules and regulations lawfully framed are to be obeyed by the students and that teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education for maintaining excellence of education, the rules should be modified in tune with the modernisation of the technology so as to enable the students to acquire knowledge from all available sources. It would be open to the authorities in the hostel to supervise whether any distraction or disturbance is caused to other students on account of usage of mobile phone or take action when any such complaint is received. The total restriction on its use and the direction to surrender it during the study hours is absolutely unwarranted. When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”

What’s more, it is then eruditely pointed out in para 19 that, “It is pertinent to note that the learned counsel for the college vehemently argued that in the absence of any challenge to the rules and regulations, the petitioner cannot be heard to challenge the action taken in accordance with the rules. The learned counsel for the college also argued that in the light of the judgment of the Full Bench of this Court in Pavitran VKM V. State of Kerala & others 2009(4) KLT 20: 2009(4) KHC 4, the rules and regulations of the hostel will stand as long as it is not set aside. But in this case the rule was that the mobile phones shall not be used in the hostel. Therefore, what remains is only the decision/instruction restricting/banning the use of mobile phone from 6 pm to 10 pm and the direction to surrender the mobile phone to the warden. When it is already found that such an action infringes the fundamental freedom as well as privacy and will adversely affect the future and career of students who want to acquire knowledge and compete with their peers, such instruction or restriction cannot be permitted to be enforced.”

To put it succinctly, para 20 then states unambiguously that, “While enforcing discipline it is necessary to see the positive aspects of the mobile phone also. As held by this Court in the judgment in Anjitha K. Jose’ case (supra), the restriction should have connection with the discipline and when there is nothing to show that there was any act of indiscipline on account of the usage of mobile phone by the petitioner, that cannot stand. The fact that no other student objected to the restriction or that all others obeyed the instructions will not make a restriction legal if it is otherwise illegal. No student shall be compelled either to use mobile phone or not to use mobile phone. It is for each of the students to decide with self confidence and self determination that she would not misuse it and that she would use it only for improving her quality of education.”

While adding a word of advice for parents, hostel authorities and students, para 21 then states that, “The parents as well as the authorities of the hostel have to consider the fact that almost all the undergraduate students staying in the hostel have attained majority. They have joined the course after passing one or two public examinations. The students in that age group are expected to be conscious of their duty to study properly in exercise of their right to education. The manner in which as well as the time during which each person can study well, vary from person to person.”

More importantly, Justice PV Asha who delivered this landmark judgment then categorically observes in para 22 that, “I am of the view that what is required is a counseling for the students, as well as parents in the colleges. The students in the hostels should be given counseling in order to inculcate in them self restraint in the usage of mobile phones, to make them capable of choosing the right path, to make them aware of the consequences of misuse as well as advantage of its proper use. It should be left to the students to choose the time for using mobile phone. The only restriction that can be imposed is that they should not cause any disturbance to other students. While acting in exercise of right to privacy, persons like the petitioner shall also see that such exercise does not invade the right to privacy of another student residing in the hostel especially in her room.”

While spelling out the boundaries for enforcement of rules and discipline, it is then observed in para 24 that, “Regarding the contention of the respondent that any inmate is bound to abide by the rules and regulations or else she is free to leave the hostel, it is pertinent to note that rules and regulations require reforms to cope up with the advancement of technology and the importance of modern technology in day to day life. As per the University Regulations as well as the UGC Regulations, the college is bound to run a hostel to enable the students to reside near the college in order to enable them to have sufficient time to concentrate in their studies. Therefore, the hostel authorities are expected to enforce only those rules and regulations for enforcing discipline. Enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge.”

Finally, it is then held in the last para 25 that, “In view of the aforesaid reasons, I am of the view that imposing of such restrictions is unreasonable and therefore the respondent shall re-admit the petitioner in the hostel without any further delay. It is made clear that the petitioner or her parent shall not do any act in a manner humiliating any of the respondents or any other teacher or warden or Matron in the hostel/college. The petitioner or any other inmate shall also see that no disturbance is caused to others by usage of mobile phone in the hostel. The Writ Petition is allowed to the above extent.”

In the ultimate analysis, what can be easily inferred from the above foregoing discussion is that the Kerala High Court has laid down in no uncertain terms that right to access internet is part of the right to privacy under Article 21 of the Constitution of India and also the right to education. We all know fully well how crucial internet is to acquire invaluable information about anything which cannot be acquired from other sources so easily which makes it all the more important!

It also cannot be denied that even the UN General Assembly had declared right to internet to be a human right in 2014. Even the Kerala Finance Minister Dr Thomas Issac in 2017 in his budget speech had recognized right to internet as a human right and had disclosed that efforts were being made to make internet accessible to all. The only restriction that can be imposed is that the students using mobile phones should not cause disturbance to other students! This was made clear by the Kerala High Court also in this commendable judgments and all students must adhere to it!

Sanjeev Sirohi