No Law And No Court Can Compel Anyone To Sing Anything

                                                               I am very clear on one thing right from the time I was child: No one can compel anyone to sing anything which he/she does not want to sing. There is not even an iota of doubt in my mind that no law and no court can compel anyone to sing anything against his/her wishes. Our Constitution guarantees not just the right to freedom of speech and expression as envisaged in Article 19 but also guarantees to remain silent to what one does not wish to sing.

Having said this, let me refer here now to the judgment by the Madras High Court which had culminated from a goof-up by the Government of Tamil Nadu. A government job applicant – K Veeramani had in his entrance exam for the post of BT Assistant written to a question that Vande Mataram was written in Bengali. The examiner said that it was Sanskrit. The applicant challenged it as he missed by just one mark. The applicant contended that in all the books he had read, Bengali was mentioned as the language in which Vande Mataram was originally written.

Following this, the Judge had directed the Advocate General of Madras High Court – R Muthukumaraswamy to apprise the court of the correct answer in order to settle the dispute over the linguistic origin of the song. When the case up on July 13, the Advocate General informed the court that Vande Mataram was of Sanskrit origin but had originally been penned in Bengali by Bankim Chandra Chatterjee. The Judge directed the Teachers Recruitment Board to award the mark to the petitioner.

Needless to say, the Hon’ble Madras High Court should have focused only on this. Instead what we saw is that it stipulated that the national song Vande Mataram should be compulsorily sung and played in all schools and educational establishments across the State at least once a week. Justice MV Muralidharan also ordered that Vande Mataram should be played in all Government offices and institutions, private companies, factories and industries at least once a month. Certainly I must say here that patriotism cannot be thrust upon anyone. Singing of national song or anything else must be purely voluntary.

Be it noted, Justice Muralidharan also made it clear that nobody should be forced to sing the national song provided there were valid reasons. This itself proves that it is just not correct to force anyone to sing Vande Mataram or anything else which he/she does not want to sing. Singing or not singing anything cannot be made a crime by any law.

But the moot question that arises here is: Who will determine these valid reasons and what standards will be applied haven’t been specified? All this will only serve to provide more leeway to authorities and moral brigade to harass a common person who is just concerned about how to earn his/her bread and butter! Moreover, every citizen have been guaranteed the fundamental choice by the founding fathers of our Constitution to sing what they want or not to sing at all! No law and no court can force any citizen to sing any song whether it is national song or anything else! Patriotism cannot be forced at gun point or lawpoint or any other point!

This latest order of Madras High Court is reminiscent of the Supreme Court direction in November 2016 on the compulsory singing of the national anthem in cinema houses. We all know how some fringe elements exploit such orders to further their own narrow vested political interests by forcing people from a particular religion or group to sing something which they feel their religion does not permit them to sing! This is why I very strongly feel that no one should be forced anyhow to sing anything against his/her wishes because this is no way to usher in nationalism.

Truth be told, there are many who don’t like to sing any song but they love our nation as much as we do. Why should they be made to sing any song against their wishes? Why should goons be given a pretext to attack those who refuse to sing song? How can this be legally justified?

Don’t we know that there were incidents of physical assaults on those who did not stand up when the national anthem was played in theatres and in some cases even the physically disabled people or those who can’t hear properly or see properly were beaten up! What sort of nationalism is this? Such sort of forced nationalism cannot be justified under any circumstances! All courts right from bottom to top must guard against giving such judgments which can be misconstrued by goons to further their own vested interests or the vested interests of their political masters!

Nationalism cannot be forcibly spoon-feeded. What is the guarantee that those who sing Vande Mataram or any other song would be good citizens or would not indulge in anti-national acts or corruption? Who invited Pakistani invader Gen Pervez Musharraf who masterminded Kargil war in which we lost more than 500 brave soldiers as per official figures? Who gave Most Favoured Nation status to Pakistan unilaterally for more than 20 years which is even now continuing? Those politicians who love singing Vande Mataram and other songs!

Everyday our brave soldiers are dying because of the proxy war being waged by our rogue neighbour – Pakistan and yet our politicians who keep chanting “Bharat Mata Ki Jai, Vande Mataram etc etc” are not ready to declare Pakistan as a “rogue and terror” nation just like Kuwait did recently and severe all ties with Pakistan! No national party is willing to support the likes of independent MP Rajeev Chandrashekhar who has tried several times to bring in a private member Bill to declare Pakistan a terror state! Most shameful!

Even former Rajya Sabha MP Maulana Mehmood Madani who is also leader of Jamiat-e-Ulema had demanded sometime back that Pakistan be named “Aatankistaan” and India should severe all ties with Pakistan but our mainstream parties who enjoy singing national songs are just not prepared for it and feel very strongly that no matter how many soldiers are killed but relations with Pakistan must remain intact! Corruption is silently killing so many people more than that of terror killings and there are so many corrupt politicians who never tire of singing national songs yet shamelessly and wantonly indulge in corruption by nexus with corrupt contractors, engineers etc in making weak roads, weak bridges and weak buildings etc thus directly ensuring that many innocent people are killed in the most brazen manner! Thus there can be no two opinions about the irrefutable truth that moral character is the biggest asset and this should always be stressed upon right from childhood but nowadays it seems that more focus is attached on national songs etc which alone is just not enough!

It is most unfortunate that sparks flew in the Maharashtra Legislative Assembly on July 28 as the ruling BJP MLAs slammed Samajwadi Party’s Abu Asim Azmi who opposed a demand for making the singing of the song mandatory in the schools and colleges of the State. What is most disconcerting to note is that Maharashtra Public Works Minister and BJP leader Chandrakant Patil even went to the extent of saying that those who want to live in the country must say Vande Mataram and Bharat Mata Ki Jai! This is just not done!

India is a very liberal and democratic country where everyone is free even to worship any God of his/her choice or not worship any God and remain an atheist! How can anyone be forced to worship a particular God or Goddess? I myself consider Bharat as father and not as Mata so will those who disagree with me beat me up? Same is the case with singing of national song or anthem. If some person does not like singing anything, that does not imply that he/she is an anti-national or does not love his/her country!

I am reminded of 1994 when my faith in Lord Shiva was completely shattered and my best friend Sageer Khan took a vow from me that I would worship Lord Shiva till my last breath just like he himself worshipped Allah. He rightly said to me to always remember that anything can be changed but parents, religion which includes God whom we worship right from our childhood days and nationality can never be shunned or changed! I had to agree not at gunpoint but because of friendpoint which he pointed towards me and while visiting temple alone I used to utter “Matha to tekna hain tekna hain tekna hain Shraddha nahin hain bhakti nahin hain paar matha to tekna hain tekna hain tekna hain, naak to ragaadni hain Sageer Khan ne kahan hain Sageer Khan ne kahan hain”.

An old priest used to observe me daily and one day he said to me that, “You are doing a crime by worshipping Lord Shiva against your wishes and Lord Shiva will be more angry with you”. I said that I don’t care but I have to fulfill the vow which I gave to my best friend Sageer. He said that Lord Shiva will be most angry with your best friend Sageer Khan because no God wants that anyone should worship him/her against his/her own wishes and your best friend Sageer Khan has committed the biggest sin by forcing you to worship Lord Shiva whom you don’t want to even see! From then on I decided to always go to temple only with true dedication and not because of gunpoint or friendpoint – Sageer Khan! Also, Sageer himself never wanted that I should worship Lord Shiva in a disinterested manner or in a forcible manner.

Same is the case with singing of songs. No song whether it is national song or national anthem can be forced on anyone whether it is Waris Pathan or Abu Asim Azmi or anyone else! Singing of song or anthem has to be purely voluntary! There should be no coercion at all under any circumstances.  Just because a person does not sing a song or anthem does not make him/her an anti-national and just because a person sings a song or anthem does not make him/her a true patriot! This is what we all especially those who are educated must understand and stop quarreling over such trivial issues like illiterate people! Also, Supreme Court itself had on a writ petition on this specific issue of singing of national song clearly stated that there is no mention in the Constitution of the national song that Vande Mataram is meant to be.

Let me now conclude by quoting what the former Cabinet Secretary TSR Subramanian known for his impeccable credentials and genius whom all Central Governments keep consulting from time to time and even has headed many important Committees like the one on National Education Policy had to say in this regard: “I believe that most people in India are patriotic, while they may not be overly demonstrative about it all the time. Love for one’s country is something that comes naturally and can’t be forced. Nothing can be ensured by using force.  The national anthem and Vande Mataram deserve to be respected but binding people by rules can’t ensure patriotism. In my view, it is not to be brought to the bazaar by saying that every shop and every courtroom will sing it every morning. While I respect the spirit of the Madras High Court ruling. I am critical of its application. By asking to play Vande Mataram in every classroom and every office, the court is certainly overdoing it. We should accept and accommodate different views. I think that a debate on patriotism or Vande Mataram, per se, is not required. There are insufficient debates on what’s affecting the country like poverty, preventive medication and education. Our government, Parliament, media and judiciary are not paying attention to these vital subjects.” Very rightly said! What more should I say on this? What the former Cabinet Secretary TSR Subramanian has said must be adhered to by all of us!

Sanjeev Sirohi

No New Appointments To Be Made From In-Service Candidates Against Bar Quota To District Judge Post: SC

In a major and significant development with far reaching potential consequences, the Supreme Court which is the highest court has on May 10, 2019 in Dheeraj Mor vs Hon’ble High Court of Delhi [Petition for Special Leave to Appeal (C) No(s). 14156/2015 (Arising out of impugned final judgment and order dated 19-02-2015 in WPC No. 9303/2014 passed by the High Court of Delhi At New Delhi) ([only IA no. 49518 of 2019 application for stay in w.p. (C) no. 414/2016 to be listed]) with W.P. (C) No. 414/2016 (X) (Only IA no. 49518 of 2019 application for stay to be listed) very clearly and categorically ordered that no new appointments to the post of District Judges shall be made from in-service candidates against quota reserved for Bar ‘now-onwards’. The Bench of Apex Court comprising Justice Arun Mishra and Justice Navin Sinha has refused to pass any further interim orders either by permitting in service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar. In other words, the Apex Court has explicitly directed that, “No new appointments to be made from in-service candidates against Bar quota to District Judge post”.

It is a no-brainer that lawyers are very elated to learn this as they have always felt that those Judges who already made it to the Judges post by qualifying for Civil Judge were wrongly and unfairly being allowed further to make inroads to the District Judge post through direct recruitment which earlier since last more than 65 years has always been reserved only for lawyers and those who were already Judges being in Civil Judge had their own quota by which they become District Judges! Earlier they were permitted but now the Supreme Court has chosen to correct this blatant wrong and the lawyers who fought this case now feel that their stand on it has been vindicated by this latest, landmark and laudable judgment! Very rightly so!

To start with, the ball is set rolling in this landmark and laudable judgment by first and foremost observing that, “In these matters, it is in dispute as to whether the incumbents who have joined the services as Civil Judge can stake their claims for the posts meant for direct recruitment from the Bar reserved for practicing advocates for appointment as District Judges. Since there is a quota in the direct recruitment of Bar Members, in order to attract talent from the Bar out of practicing advocates. There are separate quota of promotional posts for the incumbents who have joined the services as Civil Judge to the post of District Judge. There is a set procedure for that and there is a merit promotion quota which has to be made by virtue of the limited departmental examination as held in All India Judges’ Association & Ors. v. Union of India and Ors. (2002) 4 SCC 247 and followed in All India Judges’ Association & Ors. v. Union of India And Ors. – (2010) 15 SCC 170. Nowhere it is provided that such in-service incumbents can stake their claim as against posts which are reserved for direct recruitment from the Bar.”

As things stand, the Bench pointed out that, “It was contended that in certain cases, interim relief has been granted by this Court and by virtue of the interim directions issued, certain in-service incumbents participated in the exam and other process by staking claim to be appointed in the quota which is basically meant for lawyers. Since the entitlement of Civil Judges to occupy posts of Bar quota is yet to be decided by hearing matter finally and in case such interim orders are continued to be granted and the Civil Judges from the judiciary are permitted to be appointed as against the quota which was basically meant for practicing lawyers, serious prejudice may be caused to the Bar incumbents. In the past, for the last 65-66 years no person from the Civil Judge cadre were permitted to stake their claims as against the posts which are reserved for direct recruitment from the Bar.”

As it turned out, the Bench made it amply clear that, “It is settled proposition of law that final relief cannot be granted by way of interim measure when direct recruitment has to be from Bar, we cannot continue to grant interim order of final nature leaving the situation virtually irreversible, an incumbent from Bar has to be deprived of the post given to in-service candidate which is reserved for Bar, question of seniority would also arise and in case relief is not finally granted several other complications would arise. In any case such ad-hoc arrangements by appointing such incumbents is not at all warranted that too in higher judiciary unless and until the case is decided in favour of in-service candidates.”

What’s more, the Bench then points out that, “It was also contended that in Dheeraj Mor case, certain interim orders have been passed allowing the members of the judicial service to stake their claims for the posts which are meant to be filled by the direct recruitment from the Advocates. In the circumstances, for years together such interim orders cannot be granted nor interim orders can be treated as a precedent. As they are creating more complications and the question of entitlement of in-service candidates has been referred to Larger Bench which will take call on it. It is considered appropriate that quota meant for the Bar be no more filled by in-service candidates. However, the recruitment from Bar shall be subject to the final outcome of the matter which has been referred.”

Going forward, the Bench then held that, “We are of the considered opinion that we cannot direct any more appointment by way of interim orders of Civil Judges as against posts meant for practicing advocates or allow the judiciary members to participate in such examination to make position worse. Serious complications would arise in case ultimately in-service candidates are not found eligible for such quota.”

Furthermore, the Bench then held that, “As such we are not inclined to pass any further interim orders either by permitting in service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar. It would not be proper to stop all recruitments for years together, so as to prevent complications as to seniority as well as the quota which is required to be maintained.”

To say the least, it was then pointed out by the Bench that, “It was submitted that if such an anomaly is permitted to be continued, the posts reserved for the Bar members in the High Court too will have to be filled even from the District Judges who might have earlier practiced for 10 years. Be that as it may, as we are not on that issue, in the facts and circumstances of the case, we find that it is not appropriate to pass such interim orders any more. As the matter is urgent, we request Hon’ble The Chief Justice to post the matter before appropriate Bench for hearing it finally as early as possible.”

Finally and most importantly, it is then  held in the concluding para that, “We make it clear that we are not disturbing the appointments which have been made so far by virtue of such interim orders. However, no new appointments be made from now onwards of in-service candidates against quota reserved for Bar. In case even if in-service candidate has been selected in the examination held earlier as against the Bar quota no further appointment to be made of such candidates. However, the practicing advocates who have been found selected for appointment, their result be declared and they be appointed subject to the outcome of the pending matter.”

No doubt, in the ultimate analysis, it is a path breaking judgment which has clearly signalled that from now onwards no new appointments to be made from in-service candidates against Bar quota to District Judge post. It has also made it amply clear that the Bar quota is meant to recruit candidates from the Bar who practice as lawyers and Civil Judge who have their own quota will not be eligible to stake their claim from the Bar quota as it is meant only for lawyers and if they are allowed then this will cause serious prejudice to the lawyers. It also refused to pass any further interim orders either by permitting in-service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar.

However, the Bench clarified that it is not disturbing the appointments which have been already made so far by virtue of such interim orders. But from now onwards the Bench clarified that even if in-service candidate has been selected in the examination against the Bar quota no further appointments to be made of such candidates! Needless to say, the lawyers mostly are most pleased and happy at this latest, landmark and extremely laudable order especially those who aspire to become District Judge and for this full credit goes to all those lawyers who took up the cudgels and filed a PIL which ultimately culminated in this noteworthy judgment!

Sanjeev Sirohi,

Mere Pendency Of Civil Case Between Complainant And Accuused Not A Ground To Qash Criminal Case: SC

Let me begin at the very beginning by first and foremost explicitly pointing out that in a latest, landmark and laudable judgment titled Md. Allauddin Khan vs The State of Bihar & Ors in Criminal Appeal No. 675 of 2019 (Arising out of S.L.P.(Cri.) No. 1151 of 2018) delivered just recently on April 15, 2019 has clearly and convincingly observed that, “Mere pendency of civil case between complainant and accused is not a reason to quash criminal case.” There can be no reason to quash a criminal case just because a civil case is pending between complainant and accused. So the Apex Court has very rightly ruled so accordingly!

While setting the pitch for this extremely landmark and laudable judgment delivered by the Apex Court authored by Justice Abhay Manohar Sapre for himself and Justice Dinesh Maheshwari, it is pointed out in para 2 that, “This appeal is directed against the final judgment and order dated 11.09.2017 passed by the High Court of Judicature at Patna in Criminal Miscellaneous Application No. 27078 of 2013 whereby the High Court allowed the Criminal Miscellaneous Application filed by respondent Nos. 2 & 3 herein and quashed the complaint filed by the appellant herein.”

Needless to say, it is then pointed out in para 3 that, “A few facts need mention here in below for the disposal of this appeal, which involves a short point.” Para 4 then envisages that, “By impugned order, the High Court quashed the order dated 13.02.2013 passed by the Judicial Magistrate 1st Class, Saran at Chapra in Complaint Case No. 21/2012 whereby the Judicial Magistrate took cognizance of the complaint filed by the appellant herein against respondent Nos. 2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”) by holding that a prima facie case was made out against respondent Nos. 2 and 3 on the basis of allegations made in the complaint.”

To put it succinctly, it is then observed in para 5 that, “So, the short question which arises for consideration in this appeal filed by the complainant is whether the Judicial Magistrate was right in holding that a prima facie case is made out against respondent Nos. 2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 IPC so as to call upon them to face the trial on merits or whether the High Court was right in holding that no prima facie case has been made out against respondent Nos. 2 and 3.”

After observing in para 6 that, “Heard Mr. Binay Kumar Das, learned counsel for the appellant, Mr. Prabhat Ranjan Raj, learned counsel for respondent Nos. 2 & 3 and Mr. Devashish Bharuka, learned counsel for respondent No. 1-State.”, the Bench then goes on to add in para 7 that, “Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and restore the order of the Judicial Magistrate dated 13.02.2013.”

Furthermore, the Bench then observes in para 8 that, “The High Court examined the case in para 6, which reads as under:

“6. On perusal of complaint petition, I find that the complainant has asserted that firstly, he had contracted for purchasing the shop premises from the land owner, but the petitioners offered more money and got the document registered in their favour. There is no chit of paper on record to support the agreement of sale or payment of any amount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancy of the complainant. The petitioners have filed an Eviction Suit No. 10 of 2012, in which the complainant has filed his written statement admitting tenancy in the said shop premises. The complainant has further asserted that he has been remitting rent of the said shop regularly and when he learnt about the transfer of shop premises in favour of the petitioners, the complainant has filed a Title Suit No. 2 of 2012. The dispute between the parties appears to be a civil dispute. The relationship of landlord and tenant stands admitted by the complainant in the eviction suit. I further find that there are contradictions in the statement of witnesses on the point of occurrence. The criminal prosecution of these petitioners in the above background appears to be an abuse of process of Court”.”

Truth be told, the Bench then minces no words in pointing out in para 9 that, “On perusal of the impugned order, we find that it suffers from two errors.” Elaborating further, para 10 then states that, “First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not.”

While highlighting the discrepancies in the High Court’s verdict, the Bench then observes in para 11 that, “Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties.”

Furthermore, while rapping the High Court on its knuckles, the Bench then minces no words to say it upfront in para 12 that, “It is on this ground, the High Court proceeded to quash the complaint. This approach of the High Court, in our view, is faulty.” Also, it is then laid bare in para 13 that, “Though the High Court referred to the law laid down by this Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. (AIR 1992 SC 604) but failed to apply the principle laid down therein to the facts of this case.”

Not stopping here, it is then pointed out in para 14 that, “The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not.”

To say the least, the Bench also sought to make it clear point blank in para 15 that, “The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.”

While pointing out the second error in the verdict of High Court, it is then held in para 16 that, “The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.”

While making the picture on this lacuna in the High Court verdict more clear, it is then held explicitly in para 17 that, “In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

What’s more, it is then observed in para 18 that, “It is due to these two errors, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court for quashing the complaint filed by the appellant against respondent Nos. 2 and 3 is not legally sustainable and hence it deserves to be set aside.”

It also cannot be lost on us that it is then observed in para 19 that, “In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the order of the Judicial Magistrate dated 13.02.2013 is restored because it records a finding that a prima facie case for taking cognizance of the complaint is made out.”

Before parting, it is then finally held in the last para 20 that, “The Judicial Magistrate is accordingly directed to proceed to conclude the trial on merits on the basis of evidence adduced by the parties in the trial strictly in accordance with law uninfluenced by any observations made by the High Court in the impugned order and in this order made by this Court.”

In conclusion, it can be said with consummate ease that this extremely landmark and laudable judgment while clearly and convincingly not concurring with the High Court verdict lays down that explicitly that mere pendency of civil case between complainant and accused is not a ground to quash criminal case. It thus also directs the Judicial Magistrate to conclude the trial on the basis of evidence adduced by the parties strictly in accordance with law without being influenced in anyway by the observations of the High Court! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Delhi High Court Directs Government To Set Up 18 Fast Track And 22 Commercial Courts

In a path breaking and hugely significant development, the Delhi High Court in a latest, landmark and extremely laudable judgment titled Prag Chawla vs Government of NCT of Delhi and another in W.P.(C) 3939/2019 has very rightly and commendably directed the government of NCT Delhi to decide on the establishment of 18 fast track courts and 22 commercial courts in various districts of Delhi as demanded by the Delhi High Court. It also sought a report on the decision taken before May 30. A Division Bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani held quite explicitly on May 16, 2019 that once the High Court has made a demand for establishment of certain courts (fast track and commercial) for speedy disposal of cases, the State Government cannot sit over the appointments but instead is duty bound to sanction the requisite number of posts.

Needless to say, the Delhi High Court was hearing a writ petition filed by one Prag Chawla who sought directions for appointments to the posts for these courts. This matter remained pending before the State government for more than two years. Senior Counsel Dayan Krishnan appeared on behalf of the petitioner along with others while Anupam Shrivastava appeared on behalf of the Delhi government and Rajshekhar Rao represented the Delhi High Court itself.

To start with, this judgment sets the ball rolling in para 1 by first and foremost observing that, “This writ petition has been filed by the petitioner in public interest and the prayer made reads as under:

‘a) Direct the Respondent No. 1 to make the FTC scheme as a permanent feature in place of the present ad-hoc and temporary FTC scheme and accordingly sanction 20 posts of Additional District & Sessions Judge in Delhi Higher Judicial Service along with 95 posts of ancillary staff on permanent basis for Fast Track Courts.

b) Direct the Respondent No. 1 to create 22 posts of Delhi Higher Judicial Service in super time scale for commercial court judges along with ancillary staff.

c) Pass any other order(s) which this Hon’ble Court deems fit and proper, in favour of the Petitioner’.”

To be sure, it is then pointed out in para 2 that, “The Full Court of the High Court of Delhi had sanctioned 20 posts of Additional District & Sessions Judge in Delhi Higher Judicial Service and other requirements and 22 further posts in the Delhi Higher Judicial Service in super time scale for establishment of commercial courts.”

As things stand, para 3 then brings out that, “The matter is pending before the Govt. of NCT of Delhi/respondent No. 1 since more than 2 years and finally the communication received from time to time from the Govt. of NCT of Delhi and the response of the Delhi High Court have been brought before us by Shri Rajshekhar Rao, learned counsel representing the Delhi High Court in the form of a paper book which contains various communications between the Govt. of NCT of Delhi and the Delhi High Court.”

Be it noted, it is then brought out in para 4 that, “On 06.05.2019, the Principal Secretary (Law, Justice & LA) has made a communication to the Registrar General of this Court which reads as under:

“Sir,

With reference to your office letter No. 5002/DHC/Gaz/G-1/2018 dated 22.11.2018 on the above captioned subject, I am directed to inform you that the proposal for creation of 18 post of ADJs in Delhi Higher Judicial Service along with 86 posts of ancillary staff for fast Track Courts was placed before the Council of Ministers for consideration. However, the following information is further required to take necessary action in the matter:

1. Total number of criminal cases relating to serious offences which are pending for more than two years in District Courts.

2. Average rate of disposal of cases @ each Fast Track Court in last two years to consider whether if only 18 Fast Track Courts shall serve the purpose or more number of Courts are required to be established.

The above information may kindly be provided at the earliest”.”

It is then observed in para 5 that, “From the aforesaid, it is clear that the Department wants the total number of criminal cases relating to serious offences which are pending for more than 2 years in the District Courts in Delhi.”

As it turned out, it is then held in para 6 that, “Having heard Mr. Dayan Krishnan, learned Senior Counsel representing the petitioner, Mr. Anupam Srivastava, learned Addl. Standing Counsel for the respondent No. 1/Govt. of NCT of Delhi and Mr. Rajshekhar Rao, learned counsel for the respondent No. 2/Delhi High Court and on going through the records, we find that most of these details have already been furnished by the Delhi High Court and are available with the Govt. of NCT of Delhi. In spite thereof, if any further specific details are required, the Law Secretary should communicate it to the Registrar General of this Court by 18.05.2019 and the Registrar General shall personally furnish the entire information to the Principal Secretary (Law, Justice & LA) on 20.05.2019 by attending his office.”

Going forward, it is then held in para 7 that, “As far as the second query is concerned, the Govt. of NCT of Delhi wants to know as to how many further fast track courts are necessary to be established. The query clearly indicates that the Govt. of NCT of Delhi is even willing to sanction more courts and therefore there should not be any impediment in sanctioning at least the 18 courts indicated in the query.” Para 8 states that, “Accordingly, we direct that appropriate sanction for establishment of 18 fast track courts should be communicated immediately to the Delhi High Court.”

While underlying the reasons behind this landmark order, it is then pointed out in para 9 that, “We are constrained to pass the aforesaid order primarily on account of two facts: one, that the statistics provided by the petitioner which are based on information received under the Right to Information Act shows that more than 6,414 cases under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) are pending in various courts in Delhi and more than 2,800 cases under various other sections, particularly Section 376 IPC are pending in the courts in Delhi. The mandate of Section 309 of the Cr.P.C. is that cases under Section 376 IPC and cognate provisions, which would now also include cases under POCSO are required to be decided within two months; and decision of cases within the time-frame provided under the statute until and unless adequate number of fast track courts are sanctioned.”

What’s more, it is then pointed out in para 10 that, “That apart, Mr. Dayan Krishnan, learned Senior Counsel representing the petitioner has invited our attention to a Division Bench judgment of the Bombay High Court in the case of Vihar Durve s. State of Maharashtra & Ors., 2018 Law Suit (Bom) 2435 and the principles crystallized in paras 32 and 33 thereof which read as under:

32. This Court went to the extent of holding that when the State Government is conferred with the power to establish the Courts, the said power has to be exercised after consultation with the High Court and in the matter of such consultation, the view of the High Court will have a primacy.

33. Thus, it is already held that in the matter of establishing the new Courts, the views of the High Court will have the primacy. Considering the mandate of Article 21 and Article 39-A, it is the duty of the judicial system to take all such steps so as to ensure that no citizen is deprived of his fundamental rights guaranteed under Article 21 of the Constitution of speedy trial. It is a settled position that it is the obligation of the State to provide all possible infrastructure to the judiciary to ensure that the mandate of Article 21 is followed. If the argument of the State is accepted, it would mean that in a given case, when the High Court Administration is of the considered view that a particular place, it is necessary to create certain number of additional posts of Judges, the State will finally decide whether creation of additional posts of the Judges is necessary at that particular place. Therefore, it comes to it that the State will decide how many Judges are required to deal with the pendency of cases at a particular place and for ensuring the speedy trial. If this view is accepted, it will impinge upon the independence of judiciary which is a part of the basic structure of the Constitution of India”.”

It cannot be lost on us that it is then pointed out in para 11 that, “These principles clearly indicate that once the High Court has sought for certain courts for speedy disposal of cases, the State Government cannot sit over it and has no option but to sanction the posts as demanded by the High Court.”

Above all, it is then pointed out in para 12 that, “That apart, now under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the State is also bound to create commercial courts in an endeavour to dispose of commercial disputes. More than 22 courts are required to be established in various Districts of Delhi for clearing cases under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and the demand for the same is also pending before the Govt. of NCT of Delhi. Once the High Court has made a demand, the State is duty bound to sanction the posts and therefore we direct that with regard to 18 fast track courts and 22 commercial courts as demanded by the High Court, the matter be placed before the appropriate authorities namely the Cabinet, a decision taken and a report submitted to this Court on or before 30.05.2019.” The last para 13 then says that, “List on 30.05.2019.”

To conclude, State must comply with what the Delhi High Court has ordered in its extremely landmark and laudable judgment. It has already been stated in detail above. There is thus just no need of repetition!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Is The Criticism Of In-House Procedure Justified?

 

         It is most hurting to see that there is a scathing criticism of the Supreme Court’s in-house procedure without understanding it properly. It is being widely propagated that the clean chit given to the incumbent CJI Ranjan Gogoi by the three-Judge in-house panel headed by second most senior Supreme Court Judge Sharad Bobde and also comprising of two women Judges – Justice Indu Malhotra and Justice Indira Banerjee is just an eyewash! Nothing can be further from the truth!

It would be pertinent to mention here that a statement issued by Supreme Court Secretary General Sanjeev Kalgaonkar said explicitly and elegantly that, “The in-house committee has submitted its report dated 5.5.2019 in accordance with the in-house procedure to the next senior-most Judge competent to receive the report and also sent a copy to the Judge concerned namely the Chief Justice of India. The in-house committee has found no substance in the allegations contained in the complaint dated April 19, 2019, of a former employee of the Supreme Court of India.” The report was submitted to third senior most Justice Arun Mishra as the second seniormost Judge – Justice NV Ramana had recused after the complainant alleged close proximity of CJI with him!

Needless to say, in a letter to the panel, the woman staffer had expressed concern on the presence of Justice NV Ramana in the panel saying that, “He is a close friend of the CJI and like afamily friend to him because of which she fears that her affidavit and evidence will receive an objective and fair hearing.” On April 25, Justice NV Ramana who enjoys a totally impeccable reputation and who is set to become the CJI after the incumbent CJI Ranjan Gogoi and Justice Sharad A Bobde opted out of the Committee with a heavy heart saying that, “His decision to recuse is only based on an intent to avoid any suspicion that this institution will not conduct itself in keeping with the highest standards of judicial propriety and wisdom.”

It must be disclosed here that the second seniormost Judge of Supreme Court – Justice Sharad A Bobde who will take over as CJI after incumbent CJI Ranjan Gogoi retires in October had set up the panel after the CJI assigned him administrative and political powers to deal with the inquiry and cases arising from the sexual harassment complaint. In writing its report, the three-Judge panel considered a large number of documents – the complainant’s 28-page affidavit sent to all Judges on April 19 complaining of alleged sexual harassment on October 11, 2018, by the CJI, her statement recorded before the panel, records of Supreme Court inquiry proceedings drawn against the complainant leading to her dismissal in December last year and her resistance to being moved from the CJI’s residence office to the Supreme Court. She was shunted out after the CJI’s Secretary complained of her inappropriate behavior on October 12. Can all this be dismissed lightly? The panel had also examined the CJI. Can anyone deny or question this also?

Be it noted, the in-house panel’s report will not be made public. This is certainly not to hide anything. It is because of the reason pointed out by Supreme Court Secretary General Sanjeev Kalgaonkar who said that, “Please take note that in the case of Indira Jaising vs Supreme Court of India & Another [2003 (5) SCC 494], it has been held that the report of a committee constituted as a part of the in-house procedure is not liable to be made public.”

Be it noted, Kalgaonkar also said that, “The in-house committee has submitted its report dated May 5, in accordance with the in-house procedure, to the next Judge competent to receive the report and also sent a copy to the Judge concerned, namely the Chief Justice of India.”

In a hard hitting statement, the former Attorney General of India and one of India’s most reputed and distinguished lawyer-cum-jurist Soli J Sorabjee writes in his enlightening editorial in ‘The Indian Express’ newspaper titled “Undue criticism” while underscoring that ‘Court’s in-house procedure, by which allegations against CJI were examined, has stood the test of time’ stating that, “It is unfortunate that some, at lavish dinner parties, are raising fingers for untenable reasons against the three Judges of the Supreme Court who gave the report, without understanding the genesis and purpose of the in-house procedure. More unfortunate is my good friend Karan Thapar’s conclusion that it is a sad day for the judiciary. Let me remind him that the in-house procedure is published on the website of the Supreme Court. It has stood the test of time. If we do not trust Judges of the Supreme Court, then God saves the country. We must put a lid upon the unfortunate controversy and save the institution, the office of the Chief Justice of India, from further damage.”

In this same editorial, Soli Sorabjee further explains stating that, “The “in-house procedure” is in reality a peer review wherein the sitting Judges will examine the complaint to find out if it has any substance. This envisages an informal procedure of examining the complainant and also the material which may be produced by the complainant. The objective of the “in-house procedure” is to preserve the independence of the judiciary by having the allegations against the concerned Judge examined in the first instance by his peers, and not by an outside agency. The nature of inquiry is fact-finding, where the Judge would have his say. It is settled law that the inquiry would not be a formal judicial inquiry. It would not involve the examination and cross-examination of witnesses. The committee can devise its own procedure content with the principles of natural justice. If the allegations are found to be substantial, then further steps will be taken as provided in the Constitution. Otherwise, the matter is closed. Reports of the Peer Committee are not made public, and are to be kept confidential, as laid down by the Supreme Court in Indira Jaising’s case (2003) 5 SCC 494.”

While continuing in the same vein, Sorabjee in this same enlightening editorial further goes on to say that, “In the present case, the Chief Justice authorised the next senior-most judge, Hon’ble Justice SA Bobde, to decide on the steps to be taken in the matter. Accordingly, a committee of three Judges was constituted to look into the matter. The committee comprised the senior most puisne Judge of the Supreme Court (Hon’ble Mr Justice SA Bobde) and two women Judges (Hon’ble Ms Justice Indu Malhotra and Hon’ble Ms Justice Indira Banerjee). The committee duly followed the established in-house procedure, which has existed for the last 20 years, and multiple inquiries have been held under it. The in-house procedure expressly states that no lawyers shall be permitted to participate and contemplates only sitting Judges to be members of the inquiry committee. The committee, therefore, did not accede to the request of the complainant for a lawyer. The complainant appeared and was examined on three separate dates. She was permitted to produce documents and also examine documents. Thereafter, she chose to walk out and withdraw from the proceedings. Therefore, the committee was entitled in law to proceed further in the matter and complete the inquiry. In the present case, the report of the committee was submitted to the next senior-most Judge competent to deal with the matter, Justice SA Bobde.”

It must be reiterated here that Soli J Sorabjee has practiced in Supreme Court for more than 50 years and many top lawyers like the highest paid lawyer in India – Harish Salve who is also the former Solicitor General and many others have all grown up under his supervision and able guidance. What he says cannot be lightly dismissed by even former CJI and any jurist under any circumstances! Even Judges and CJI listen in silence when he speaks!

No doubt, Sorabjee also rightly points out in the same editorial that, “To recapitulate, in the current case, the Peer Committee examined the complainant who, then, chose to walk out. Thereafter, the Chief Justice of India was examined. The committee examined the relevant material produced by either side and thereafter gave a report holding that the complaint was bereft of substance.” How can all this be lightly dismissed? Those who are casting aspersions on it are directly questioning the Supreme Court which cannot be justified under any circumstances!

Now regarding the controversy, Sorabjee points out that, “Controversy has arisen about the “secretive” manner in which the Peer Committee performed its functions. The criticism is as follows: The Peer Committee did not allow assistance of a lawyer to the complainant; the report has not been given to the complainant, while it has been given to the Chief Justice of India; the report has not been made public; outsiders should have been associated with the Peer Committee. In my opinion, the above criticism is untenable. The in-house committee procedure evolved by the Supreme Court in 1999 was followed. The objective is not to protect or absolve any Judge of misconduct but to preserve the independence of the judiciary and to ensure fearless discharge of duties by Judges. For the same reason, the Peer Committee must comprise only sitting Judges. Peers cannot include retired Judges, lawyers, politicians or even academics.”

Right at the outset, Soli Sorabjee points out that, “JUDGES IN INDIA perform important functions. The losing party, not unexpectedly nurses a grudge against the Judge who has decided the case against him or her and at time labours under the mis-impression that the Judge is corrupt. Apparently, a Judge needs to be protected from the displeasure and wrath of the losing party. The Judges Inquiry Act, 1968, has been enacted for that purpose and for the same reason an “in-house procedure” has been evolved by the Supreme Court of India.”

Will critics now question Sorabjee also who is respected all over the world for his immense experience and knowledge? Have a heart! Have some respect not for me but at least for Sorabjee whom even Fali Nariman and other eminent jurists like the late Nani Palkhiwala always admired!

At least learn to respect the likes of Soli J Sorabjee whose whole life is an inspiration for others to follow! Bar Council of India Chairman Manan Mishra, Arun Jaitley and Harish Salve and many others all agree with him completely! There is no reason why any sane person will disagree with him! India is fortunate to have a CJI like Ranjan Gogoi who never comes under pressure and has compelled all the high courts to fill up the Judges vacancies lying vacant since last many years and has also ensured that senior lawyers are not given out of turn hearings except when there is strong compelling ground! Justice Sharad A Bobde, Justice Indu Malhotra and Justice Indira Banerjee are all independent and fearless Judges known always for their impartial and impeccable judgments but critics are not sparing them also and very conveniently ignoring that they are not subordinate to CJI in any manner and the CJI is only “first among equals”! Justice Sharad A Bobde will become CJI after the incumbent CJI Ranjan Gogoi retires on October 17, 2019! Why will he fear anyone? Critics are only mocking at themselves when they question such experienced and learned Judges of the top court that is Supreme Court! I really pity their ignorance! They deserve pity!

Sanjeev Sirohi,

Why Should UP Have Least High Court Benches In India?

 

      Let me begin on a bitter note by expressing my profuse disappointment and utmost disenchantment with the continuous and callous disregard of more than 19 crore people living in different parts of UP which is more than 10 small states put together by Centre since 1947 till 2019! Why is it that only Eastern UP has high court at Allahabad and a single bench at Lucknow and all the other regions like Western UP, Bundelkhand and Purvanchal etc have been completely disregarded and denied their legitimate share by giving them at least one high court bench? Why no government in Centre has ever taken any initiative to correct this worst injustice since 1947 till now in 2019? It is UP where maximum cases of crimes takes place and West UP alone owes for more than half of the total cases in UP and yet it has not even a single bench of high court even though Justice Jaswant Singh Commission headed by former Supreme Court Judge Jaswant Singh categorically recommended bench for West UP in early 1980s even though on its historic  recommendations benches were created in Aurangabad in Maharashtra and Madurai in Tamil Nadu and other places!

Which state has maximum districts in India – 75? UP! Which state sends maximum MPs to Lok Sabha – 80? UP! Which state sends maximum MPs to Rajya Sabha – 31? UP! Which state sends maximum members to Vidhan Sabha – 404? UP!

Which state sends maximum representation to Vidhan Parishad – 100? UP! Which state elects maximum Mayors? Which state elects maximum representatives at all levels? UP! Which state has maximum population which is more than 19 crore as per 2011 census even though in public rallies UP CM Yogi Adityanath and PM Narendra Modi keep saying more than 22 crore? UP!

Which state has maximum villages more than one lakh even though no other state has more than few thousand villages at the most? UP! Which state has maximum poverty? UP! Which state has maximum cities which is more than 700? UP!

Which state has maximum crime to the extent that former UN Secretary General Ban ki moon had slammed UP as the “rape and crime capital of India”? UP! Here too which part of UP owes for more than 52% of pending cases of UP and yet has no high court bench? West UP! Which state has maximum pending cases which is more than the cases of 10 states put together? UP! Which state owes for maximum dowry deaths? UP! Which state owes for maximum custodial deaths? UP! Which state has maximum pending cases in lower courts more than 65 lakhs? UP!

Which state has maximum pending cases of communal violence and riots as we saw in Muzaffarnagar in 2013, Meerut riots in 1988, Bareilly riots, Agra riots etc all in Western part? UP! Which state has maximum pending cases of rape, molestation, murder and other crimes against women? UP! Which state has maximum strength of Judges both in high court at 160 and in lower courts at 5000? UP! Which state has maximum vacancies of Judges? UP! Which state has sent maximum PM which includes Narendra Modi from Varanasi? UP!

The larger point that I want to make here is this: Why is it that Allahabad High Court tops among all states when it comes to the number of pending cases which is more than 10 lakhs whereas most of other states have not more than one lakh cases and still Centre is busy creating more and more high court benches for them with latest at Jalpaiguri for just a handful of districts!  Assam till a few years ago had 7 high court benches but after Manipur, Meghalaya and Tripura were given separate high courts, it now stands reduced to 4! But Allahabad High Court which is the biggest court not just in India but in whole of Asia with so vast a jurisdiction has just one!

Lamentably, even small states like Sikkim, Tripura, Meghalaya, Manipur, etc with just about 6 lakh population, 29 lakh , 36 lakh, 27 lakh have high courts but West UP with more than 9 crore population has not even a single bench of high court! Even Andaman and Nicobar islands with just 3 lakh population has bench but not West UP with more than 9 crore population!

Not just this, Centre has always ensured that this high court has maximum vacancies of Judges which is highest in country with more than half of seats which stands at 160 keep lying vacant! Is this fair? Is Centre not aware that Allahabad High Court needs “special attention” and not “special neglect”?

Is Centre not aware that Justice Jaswant Singh Commission had categorically pointed out that West UP owes for about 57% of the total pending cases which is more than half of the total pending cases in UP still why its landmark recommendation to create a bench here to take care of nearly 40 districts at Agra with circuit benches at Nainital and Dehradun overlooked?

Why when Sampoornanand recommended a high court bench to be created at Meerut in 1955 after more than 100 elected representatives met him and convinced him of the dire need of the same did Nehru refuse? Why when a bench could be created at Lucknow in 1948 could a bench not be created at Meerut which is more than 700 km away in 1955? Why when Kapil Sibal wanted a high court bench to be created at Meerut when he was Union Law Minister as another Union Minister RPN Singh had disclosed but the then UP CM Akhilesh Yadav objected did Centre not listen to its own reputed and one of the most reputed jurist of India?   Why Centre said that the recommendation made by Law Commission in its fourth report in 1955 recommended against creating more benches and so West UP could not be given a bench conveniently overlooked everything when it came to other states and kept on creating benches there and also overlooked that the Law Commission in its 230th report recommended creation of more benches yet West UP and other parts of UP like Bundelkhand were kicked by not creating more benches for Allahabad high court?                             Why Centre took no time to create 2 more high court benches for Karnataka with just 6 crore population which is less than even West UP population alone and which already had a bench at Hubli for just 4 and 8 districts at Gulbarga and Dharwad respectively but for 26 districts and more than 9 crore people of West UP not a single bench was approved even though the lawyers here keep going on strike as they did thrice like once in 2001 for 6 months from July to December and for 3 to 4 months as they did in 2014-15 and for one month as they did in 2010 and for many weeks as they keep doing every year apart from the strikes on Saturdays for last 38 years and many times even on Wednesdays? Why Centre disregarded the most commendable recommendation made by one of the most eminent jurist of India – Soli J Sorabjee who as Attorney General in 2001had categorically recommended that, “Centre is empowered to create a high court bench in West UP without any recommendation from the Chief Justice or Chief Minister or anyone else in this regard”? Why Centre even disregarded what former Chairman of Supreme Court Bar Association BN Krishnamani said that, “Only by the creation of a high court bench in any of the districts in West UP will the people living there get real justice”?

Why Centre approves one more bench for Mumbai high court at Kolhapur for just 6 districts which already had 3 benches at Panaji, Aurangabad and Nagpur just recently in 2018 itself but cites 100 reasons for not creating a single more bench for Allahabad High Court in any hook and corner of UP leave alone West UP? Why Centre from 1947 till 2019 has taken the stand that, “Ask anything for UP but not a high court bench as only Lucknow deserves it”? What rubbish!

If Lucknow is capital then so are Bhopal which is capital of Madhya Pradesh, Dehradun which is capital of Uttarakhand, Bhubaneshwar which is capital of Odisha, Dispur which is capital of Assam, Raipur which is capital of Chhattisgarh and Thiruvanathapuram which is capital of Kerala yet they have neither high court nor bench! Also, Lucknow’s area jurisdiction is just 62,00 square km and that of West UP is 98,933 square km! The number of districts which come under the jurisdiction of Lucknow bench is just 12 and that of West UP is 26! The population of districts under Lucknow jurisdiction stands nowhere as compared to West UP whose population at more than 9 crore is more than any other state except UP of which it is itself a part, Maharashtra and Bihar and here too areawise West UP has 98,933 square km and that of Bihar is just 94,000 square km!

Why catchy slogans like “speedy justice”, “justice at doorsteps” and “cheap justice” not implemented for West UP and other remote areas of UP by creating more benches here? Why Mayawati wanted high court itself for West UP by recommending to Centre that it be made a separate state way back in 1995 but Centre is not ready to concede even a bench for West UP? Why is BJP a blind follower of Congress in this regard and till now has ensured that not a single high court bench is created in any hook and corner of UP except the one created already by Nehru 70 years ago in 1948 at Lucknow?

This despite the fact that former PM Atal Bihari Vajpayee had thundered in Parliament way back in 1986 as Opposition Leader demanding the creation of a High Court Bench in West UP and Yogi Adityanath who is now UP CM also himself thundered while demanding for a High Court Bench at Gorakhpur way back in 1998 right inside Parliament but 20 years later we don’t see any High Court Bench anywhere being created in UP! One can understand that Vajpayee didn’t enjoy majority but Modi has it but we see no action forthcoming on this so far even though he is taking other steps for UP like pompously inaugurating the 14 lane highway connecting Delhi with Meerut and other districts of West UP in which many crores of rupeeshave been spent which will reduce the time limit from Meerut to Delhi from 2 hours to just 45 minutes which is commendable but what about high court bench in West UP which is affecting the litigants of 26 districts most adversely due to which they are still compelled to travel more than 700 km all the way to Allahabad whole night without reservation many times and bear all sorts of inconveniences?  When will action be taken on this score? Why can’t few crores be spared for creating a bench in West UP and other needy areas of UP like in Jhansi in Budelkhand and in Gorakhpur?

It is not for nothing that Union Minister Satyapal Singh demanded in Parliament the creation of 5 high court benches at Meerut, Agra, Jhansi, Gorakhpur and Varanasi but the real tragedy is that his own PM is not listening to him and not creating even one more bench anywhere else in UP other than the one which already exists at Lucknow! Similarly many other BJP MPs like former Union Minister Sanjeev Baliyan, Union Minister Gen VK Singh, Mahesh Sharma and other MPs like Rajinder Agarwal keep demanding benches but to no avail!

As per the Section 51 of the States Reorganisation Act of 1956, the Centre can create a high court bench in any of these 3 states – UP, Bihar and J&K directly by bringing it up in Parliament. Centre does not need any recommendation from State Government or the Chief Justice as has been very wrongly propagated for many decades! What a national disgrace that these very 3 states – Uttar Pradesh, Jammu and Kashmir and Bihar keep on grabbing the national news headlines for all the wrong reasons as crime incidents keep multiplying very rapidly and what is worst is Centre’s stupid and crazy determination to not allow a single more bench in all these 3 states!

It is incomprehensible why Centre can approve 3 or 4 or 5 benches for peaceful states like Maharashtra, Karnataka among others but not more than one for UP which has maximum pending cases which is more than 10 states put together! Allahabad High Court must be given its due honour and it must have maximum high court benches and not minimum! Disband all high court benches in India if Allahabad High Court cannot be given more benches, West UP cannot be given a bench nor can Bundelkhand or Gorakhpur (which is CM Yogi’s constituency and where BJP just recently lost) for people living so far away who face maximum sufferings because of this but which no PM has ever dared to address for reasons never disclosed!

This all-important issue directly affecting billions of litigants coming from all sections of society is lying largely unattended and untreated since many decades! But now not any longer! Allahabad High Court must get its due by creating more benches for it!

No one is safe in UP! Even lawyers and those in police are not safe! in Allahabad itself are not safe! Criminals know that it take ages for cases to be decided in UP as UP has least benches in India and maximum pending cases in India! Former UP High Court Chief Justice Dilip Babasaheb Bhosale in a case involving rape of few women on national highway in Bulandshahr in West UP rightly said that there is total lawlessness in UP as compared to Maharashtra where women can travel alone in night anywhere and this I have also seen myself at Pune from where I did LLB but see the difference that Maharashtra has four high court benches with latest at Kolhapur for just 6 districts  and Pune is all set to get another as CM Devendra Fadnavis has approved it for which we all must applaud him but Centre must create benches in UP also! When Maharashtra can get benches in no time then why Allahabad High Court in UP which has maximum pending cases be denied its due share? Please explain!

Why can’t Centre take serious steps to address this cancerous problem root and branch and not just resort to baby steps and bandaid measures like reducing time limit to reach Delhi by spending many crores of rupees on creating 14 lane national highways but doing nothing at all to create more benches anywhere in UP so that people are not compelled to travel whole night to Allahabad? Why can’t this be done? Is it such a big deal? Certainly not! Only political will needed!

Sanjeev Sirohi

Men Too Have Right Not To Be Defamed And Denounced

“You do me favors, I do you favors 30 years later

lets call it “me too”

A strong woman does not wait 30, 20, 10 years to speak up, she slaps him on the first “bad touch” and knocks him out

Don’t hide your weakness, the favors in returns that you enjoyed and the work you got by “I was too scared” cry now

You were scared to say NO then because its hard to stand up for what is right and you were scared to loose your status and position in the work place, so YOU CHOOSE to accept the molestation and went back for more …Its very easy to play the abla nari card later and gain sympathy

The Shakti does not wait later to speak up, she silences the evil on spot…

My thoughts on this nonsense of me too

I don’t have me too stories …anyone who tried got a tight slap then and there and I was never afraid to walk out with my head held high ..be it a Job or relationship!

“strong women don’t have me too sob

Stories, they have I gave him thappad

(slap) back short essays”.”

–        Geetanjali Arora in Sunday Times of India dated October 21, 2018

 

First and foremost, I must laud Geetanjali Arora for what she has written so courageously on 9 October at 5.35 pm which got published on October 21, 2018 in one of the most reputed newspapers of India – The Times Of India! Why should women be treated always as victims? Why should women keep quiet for many decades and then speak up if she herself has nothing to hide from the world?

Even as this “#MeToo” campaign is being celebrated all over the world after American actress and activist Alyssa Milano kickstarted it by sending out a tweet asking anyone who’s faced sexual harassment or violence to write ‘me too’ as a reply which elicited a huge response in 85 countries, let me not shy away from saying that I very strongly feel that even men too have right not to be defamed and denounced before being tried in court of law in accordance with due procedure! This media trial even before the court trial has begun can never be justified under any circumstances! When women has nothing to hide from the world then why should there not be court trial instead of media trial?

It cannot be ignored that even BJP lawmaker Udit Raj has termed the “#MeToo” movement as “wrong practice” and questioned the relevance of making sexual harassment allegations against anybody after 10 years. He has rightly questioned that, “What if complaints outing men for allegedly sexually harassing women proved wrong and the prestige of a man was destroyed? Taking action or seeking resignation of an accused merely on a complaint merely on a complaint of sexual exploitation means there is no need of police or the judicial system! Considering oral or written complaint of the victim of sexual exploitation as a judgement and taking action or seeking resignation means there is no need of police or judicial system. What if the matter proves wrong? Can the soiled prestige of a man be restored? The #MeToo movement has intensified in the country with more women recounting their experiences of sexual harassment in the entertainment and media industry. There are several instances where women did this after taking money and then moved on to the next target.”

Does men have no right? Should only women have all the right to speak up whenever she likes? Very few know that a woman had levelled serious allegations against eminent film actor Jitender about an act allegedly done by him 47 years ago when she was very young but the Himachal Pradesh High Court didn’t accept it and rejected the petition as it said that the time limit of lodging the complaint within the limitation period of 3 years was not complied with! Similarly MJ Akbar was left with no option but to resign as Union Minister of State for External Affairs even before the charges have been proved against him in any court and he too became a victim of “MeToo Media Trial”! Hang him if he is guilty but condemning him even before charges have been framed against him in any court and tarnishing his “impeccable reputation” which he has earned in his entire life in just few seconds cannot be justified under any circumstances!

Is he not entitled to the benefit of the due process of law and legal defence? Should he not be given a chance to prove his innocence? There are many senior women journalists like Tavleen Singh who have always appreciated him and have said that they have never experienced any such “alleged misconduct” from him but this is never highlighted in the media! Most recently, a woman journalist deposed in court in his favour and admired his upright approach in always dealing with her. Only the numbers are highlighted that 16 or 17 women have levelled most serious charges against him but I want to ask: Why they never dared to lodge FIR against him in any police station of India till now? Why they kept quiet for so many years? Why inspite of being professional they chose to keep quiet? Were they not aware of their legal rights? Why did they not immediately complaint? Why they didn’t spill the beans earlier? Why was there a consensual conspiracy of silence? Why were they lured to keep quiet? Why they compromised themselves just for getting some material benefit? Are they not guilty just like an adulterous women?

Union Minister Pon Radhakrishnan asked: “If someone makes an allegation that such a thing happened when the incident happened we were playing together while in class 5. Would it be fair? The ‘MeToo’ movement had sullied the image of the country. Will it be right for men to start making similar accusations like them.” Even Union Minister for Tourism K Alphons has cautioned against frivolous complaints by “insincere” people with an agenda. He said that, “People should be extremely careful when they raise an allegation. Yes, if something inappropriate has taken place, it should be in public domain. There should not be any doubt about it, but I hope frivolous complaints are not raised by insincere people to fix people whom they do not like.” Just recently KWAN founder Anirban Das attempted suicide after sexual misconduct allegations but was saved by an alert police team patrolling the Navi Mumbai bridge! There are very few who care for what “mental trauma” a man undergoes when false allegations are levelled against him and he is defamed by “media trial” to the fullest even before charges are framed against him in any court! This must stop once and for all as it mutilates and maims to pieces a men’s integral right to reputation and right not to be defamed and denounced even before any court takes cognizance of the charges levelled against him!

It is rightly pointed in ‘The Times Of India’ editorial dated October 23, 2018 that, “The biggest threat to #Me Too is not fears of a male backlash over public shaming but anonymous complaints with sole intent to defame. Anonymous complaints have dangerous repercussions for personal lives, families and companies. Something as real and pervasive as corporate or professional rivalry and personal animosity can set the ball rolling. This then becomes less about #MeToo and more about settling scores, hurting companies financially, or even gaming and subverting #MeToo. Social media platforms also have a responsibility in such cases to remove the defamatory, anonymous material before it does more damage to reputations.”

What has really shaken me most is the enlightening editorial written by Ramesh Thakur who is Professor of Public Policy, Australian National University in ‘The Times Of India’ dated November 9, 2018 titled “Believe Evidence Over Gender” which begins by coming straight to the point saying that, “The #MeToo campaign began as a long overdue effort to call out men abusing positions of power and authority to exploit vulnerable women sexually, but then morphed into some settling of scores for dates gone wrong. In the age of social media, #MeToo swarms of screaming mobs, and bird-dogging, the wildest accusations are amplified instantaneously across the whole world. This makes the charge themselves a powerful political weapon.” He rightly suggests the following to check mud slinging matches: “First, ensure anonymity for both or neither. Name only the guilty party after the trial. If the verdict is inconclusive, keep all names confidential. Second, treat both accuser and accused with sympathy, respect and courtesy. Evaluate the testimony of both with equal skepticism, ask questions accordingly, and weigh their statements against the facts. Everyone deserves a fair hearing: no one deserves to be believed in the absence of evidence; and shifting evidence and timeline to suit the narrative warrants over suspicion. Third, match the prosecution and penalty for false accusations to those of conviction. This will put in place a powerful deterrent. Without consequences, the political weaponisation of false charges will continue. Above all, believe evidence over gender. Senator Susan Collins was branded a rape apologist for doing so.”

Just recently we saw how in a landmark judgment titled ‘Joseph Shine v Union of India’, the Supreme Court very rightly decriminalized adultery as it felt that sex with consent cannot be crime! Law has to change with time. Even the definition of rape needs change and sex with consent should not be termed rape. A woman after having consensual sex with a men for many years cannot and should not be allowed suddenly to scream rape and play the victim card by weeping!

The moot question that arises here is: Why the women promptly didn’t lodge complaint if she was forced to enter into sexual relationship? Also, why always men alone be condemned? What if it was women who lured men into sex?

Why always women version is to be believed? Why should women not be punished and sent to jail for at least an year if she levels false allegations against a men solely for denigrating, damaging and destroying his untarnished reputation in front of the world? Why should she not be made to pay compensation to him for tarnishing his reputation in front of the world? Why can’t the laws be suitably amended in this regard?

Why should only women have right to reputation and right not to be defamed and denounced? Why do we ignore that our laws and Constitution treats men and women as alike? Why should men be deprived of the basic fundamental tenet of law that everyone is innocent until proven guilty?

It cannot be lightly dismissed that in a criminal case, where the accused will forfeit his liberty if convicted, the standard of proof required to convict him not just is higher but also needs to be proved “beyond all reasonable doubt”. It is high time and all news channels and media groups should refrain from just glamourising “#MeToo” movement and should instead always convince so called “female victims” to approach the court at the earliest and not after 10 or 20 or 30 or 40 or 50 years and fight the legal battle which would seek evidence for both prosecution and proving innocence instead of just levelling the most damning allegations after many decades which only exposes her to “defamation suits” to get real justice for herself! Also, it must be ensured that the identity of both the women levelling the allegations and the men against whom allegations are levelled are not revealed in public until the case is decided at least in the lower court! Such cases too must be decided at the earliest and not after many years as the reputation of both the women and the men suffers enormously which only robs them of their right to privacy which just recently in KS Puttaswamy case has been declared to be a fundamental right!

We all have seen just recently how Italian actress Asia Argento who became a leading figure in the #MeToo movement after accusing powerhouse producer Harvey Weinstein of rape, paid hush money to a man who claimed she sexually assaulted him when he was 17! The $380,000 payment was made to Jimmy Bennett who is an actor and rock musician who claimed Argento assaulted him in a California hotel room in 2013, according to the Times, which cited documents sent to the paper by an unidentified party. This was reported in Hindustan Times dated August 21.

I am certainly not against women getting justice who have suffered at the hands of men but I also simultaneously favour the reasoned and logical stand that, “Men too have right not to be defamed and denounced without facing strictest legal scrutiny in accordance with due procedure of law”. Every Indian women must always abide by what Geetanjali Arora who is herself a female has said which I have quoted right at the beginning! Women are beating men in studies and outsmarting them in every field then why should they take things lying down when it comes to sexual offences?

Why not lodge complaint at the first place instead of just indulging in character assassination after many years as part of “#MeToo” campaign and getting defamed yourself also and making a huge public spectacle of yourself? Now it is for women to decide for themselves which course of action they would like to adopt but now they must stop laying the victim card and abide in totality by what Geetanjali has said and never tolerate any sort of any misconduct from any men under any circumstances whatsoever! It is high time and now women must be actually treated at par with men by not always allowing women to play the victim card and encouraging her to always take men head on whenever any men dares to violate her physical or mental integrity in any manner!

It is most heartening to read in the web portal “LiveLaw” what all has been stated in detail by the Bar Council of India (BCI) for which it too certainly deserves to be complimented and congratulated for the common person would not have come to know all this had it not been published by them in their website! I too have gathered most of my information from this website!  BCI says in no uncertain terms that there is nothing wrong with the report of the in-house committee which has given clean chit to the CJI and that its decision is “just and proper” as it has not found any merit in allegations against the CJI.

It also says that complainant was not happy with anyone after Justice Gogoi, she started blaming and commenting against Justice NV Ramana that he favoured Justice Gogoi [being close to him] due to which Justice Ramana had to recuse himself from the case after which two very noble, fair, polite and soft spoken lady Judges were included in the in-house panel. Not stopping here she still continued raising questions and did not attend the proceedings till the end and left it mid way while casting aspersions on the fairness of the proceedings itself! How can this be condoned or justified under any circumstances?

 

 

 

Judges Themselves Responsible For Such Unfortunate Situation

As anticipated, BCI rightly says that judiciary is itself responsible for the culture of “malicious complaints” by encouraging them. It says further that some of the totally “absurd, sentimental and reckless verdicts” of the Judges of the Supreme Court has resulted in lodging of such complaints frequently and expects practicality from Judges in future.

Going forward, BCI also gave a note of advice to Judges saying said that, “The oral testimony of the prosecutrix is enough to convict under Section 354 or 376 IPC,” Why? We are not in 18th century, that one can presume that a female will never make such allegations to falsely implicate her enemies. We have great respect  for our women. But time has changed, we must keep in mind. Our Judges are expected to be practical now, they should think of common man and other respectable citizen also while deciding or dealing with such cases. They should not be guided by the sentiment or presumptions only. Always think that like 498A IPC, such cases of false implications have now become very common/very easy/rampant.”

Hope That Our Judges Will Lay Down Some Law Soon

To put things in perspective, the BCI said that, “Bar is hopeful that our Judges would now realize the problems, the mental and physical agony and harassments of the common men. So long our traditional Laws, Evidence Act were properly applied by our Law Courts, we found 90% cases resulting in acquittals; but, when our Honourable, Learned, Experienced, Knowledgeable Judges started keeping the settled principles of Evidence Act in waste paper boxes, the incidents of false implications started increasing and today we have reached to this situation.”

Limitation

Be it noted, the BCI also rightly suggested that, “When Indian Judiciary and our Legislature are treating such offences of Section 354 or 376 I.P.C. very serious, then why should not there be some period of limitation for reporting such offences? If some delay is there in lodging a case of murder, it is viewed with doubt, then why should the case of 354 or 376 I.P.C. could be taken and accepted so casually, without considering the delay factor? The delay normally very much proves and establishes that the so called prosecutrix was/is either a liar or was a consenting party. And after sometimes, when the situation changes or for blackmailing, complaints are lodged.”

Moving on, the BCI also then rightly laments that, “But our Judges have made this most vital factor of delay in such cases totally meaningless and redundant. Is it not against the set principles of our Criminal Jurisprudence? If such cases are not reported immediately, the benefit of doubt should go to the accused. What is the sense in entertaining such cases reported after several days, several weeks, several months or even for several years of alleged occurrence/story?” Also, it rightly urges that, “This is the high time, the Parliament and our Supreme Court are required to apply their mind over this important factor in the changed social scenario and degeneration of moral values.”

It has to be said without any caveats that the BCI deserves certainly to be complimented, commended and congratulated wholeheartedly for taking such a balanced, principled and determined decision of fully endorsing the Justice Bobde panel report and also for reposing unflinching faith in the incumbent CJI Ranjan Gogoi who has always enjoyed an unblemished reputation and who never believes in giving out-of-turn hearing to even senior advocates and who believes that all advocates must adhere to rules and procedure while arguing cases and should not try to rush cases just because they are senior! BCI too feels that there is no substance in the allegations made by the complainant against the CJI Ranjan Ggoi! History will always judge BCI very lavishly on this score! Eminent and senior lawyers like Harish Salve too have posed their full faith in CJI Ranjan Gogoi and so have lawyer-turned-politicians like our Finance Minister Arun Jaitley and many others! Very rightly so!

I strongly believe that the time is ripe now for making changes in our penal laws and treating woman on the same platform as men. Just like adultery has been decriminalized there is now a dire need to ensure that if a woman makes false accusations against any men then she is not allowed to get away scot free. She must be also made to pay for her crime of making false accusations. There must be a minimum two years imprisonment and maximum five years imprisonment for anyone whether he/she is a man or woman who makes false allegations against anyone without substantiating it due to which the reputation of the person affected suffers irreparably! Also, a woman should not have any right of alleging rape after voluntarily indulging in sex herself! How can sex with consent be termed as rape?

Sanjeev Sirohi

Successive Bail Applications Should Be Placed Before The Same Judge Who Considered The First One: Supreme Court

 

In a fresh and latest development, the Supreme Court on May 6, 2019 has in a latest, landmark and laudable judgment titled M/s Gati Limited Vs. T. Nagarajan Piramiajee & Anr. in Criminal Appeal No. 870 of 2019 [Arising out of SLP (Cri.) No. 6677 of 2018] reiterated as it has several times in the past that successive bail applications filed by an accused should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available. If that Judge is not available who had refused bail at the first instance then it can be placed before some different Judge. Both the litigants and also all the Judges must always keep this key point in mind on such cases. There can be no denying or disputing it!

To start with, this notable judgment begins by first and foremost observing in para 2 that, “This appeal is filed questioning the order dated 25.07.2018 passed by the Madurai Bench of the Madras High Court in Cri. O.P. (MD) No. 9348 of 2018 passed by the Madurai Bench of the Madras High Court in Cri. O.P. (MD) No. 9348 of 2018 granting anticipatory bail in favour of Respondent No. 1.”

To recapitulate, it is then pointed out in para 3 that, “Respondent No. 1 is the accused (hereinafter “the accused”) in Crime No. 364 of 2017 registered at SIPCOT Police Station, District Thoothukudi, Tamil Nadu for the offences punishable under Sections 420, 465, 467, 468 and 472 of the Indian Penal Code (for short “the IPC”). The allegations against the accused as found in the First Information Report (FIR) are that he had furnished two forged Bank Guarantees each amounting to Rs. 5,00,00,000/- (Rupees Five Crores) to the Appellant in lieu of the services of the Appellant. Initially, the FIR was registered for milder offences. However, the High Court passed an order directing the police to alter the offences suitably, and accordingly, the FIR was altered by adding Sections 467, 468 and 472 of the IPC. The accused was absconding during that time. The High Court directed the police to arrest him and report to the Court by 22.12.2017. Despite the same, the accused was not arrested. Ultimately, on 02.01.2018, he filed an application for anticipatory bail before the High Court as Cri. O.P. (MD) No. 288 of 2017 in the first instance. The application came to be dismissed by the High Court on 09.04.2018. Prior to the disposal of the said application by the High Court, the accused had approached this Court in SLP (Cri.) Diary No. 7830 of 2018 questioning the order of the High Court directing alteration of sections in the FIR and the same had been dismissed by this Court with the specific direction that the accused was at liberty to surrender before the Trial Court and to obtain regular bail. Despite the said order of this Court, the accused subsequently pressed his anticipatory bail application before the High Court filed as Cri. O.P. (MD) No. 288 of 2017 which, as mentioned supra, came to be dismissed by the High Court. The said order of the rejection of the application for anticipatory bail by the High Court was confirmed by this Court in SLP (Cri.) Diary No. 15986 of 2018 on 17.05.2018. Thereafter, after a lapse of merely 13 days, i.e. on 31.05.2018, the accused filed a second application for anticipatory bail bearing Cri. O.P. (MD) No. 9348 of 2018 before the High Court that too without any change in circumstance. The High Court by the impugned order granted anticipatory bail to the accused.”

To be sure, it is then pointed out in a sharp stinging remark in para 4 that, “On a perusal of the impugned order, it is clear that the High Court has not applied its mind to the merits of the matter. The High Court has not assigned any valid reason or shown any change of circumstance since the rejection of the first application for anticipatory bail, for granting anticipatory bail to the accused.” This is clearly a rap on the knuckles of the High Court which is pretty obvious. There can be no denying it.

Furthermore, it is then pointed out commendably in para 5 while citing some landmark cases that, “Another aspect of the matter deserves to be noted. The first application for anticipatory bail was rejected by a certain learned Judge, but the second application for anticipatory bail was heard by another learned Judge, though the Judge who had heard the first application was available. This Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 SCC 684, in a similar matter concerning filing of successive applications for anticipatory bail, made the following observations:

“5.  …The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in weakening the creditability of the court and the confidence of the other side being put in issue and there would be wastage of courts time. Judicial discipline requires that such matters must be placed before the same Judge if he is available for orders…”

In State of Maharashtra v. Captain Buddhikota Subha Rao, 1989 Supp (2) SCC 605, this Court placing reliance upon Shahzad Hasan Khan (supra) observed:

“7.  …In such a situation the proper course, we think, is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court’s time as a Judge familiar with the facts would be able to dispose of the subsequent application with dispatch. It will also result in consistency…”

At the risk of repetition, we would like to quote similar observations made by this Court on subsequent occasions. In the case of Vikramjit Singh v. State of Madhya Pradesh, 1992 Supp (3) SCC 62, this Court observed:

“3. …Otherwise a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened before another bench, and there would not be any end to such attempts. Besides, it was not consistent with the judicial discipline which must be maintained by courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary…”

To the same effect, this Court observed in M. Jagan Mohan Rao v. P.V. Mohan Rao (2010) 15 SCC 491:

“3.   In view of the principle laid down by this Court, since the learned Judge who had refused bail in the first instance was available, the matter should have been placed before him. This Court has indicated that such cases of successive bail applications should be palced before the same Judge who had refused bail in the first instance, unless that Judge is not available…”

In Jagmohan Bahl and Another v. State (NCT of Delhi) and Another, (2014) 16 SCC 501 too, this Court has observed along the same lines:

“15. …when the Sixth Additional Sessions Judge had declined to grant the bail application, the next Fourth Additional Sessions judge should have been well advised to place the matter before the same Judge. However, it is the duty of the prosecution to bring it to the notice of the Judge concerned that such an application was rejected earlier by a different Judge and he was available. In the entire adjudicatory process, the whole system has to be involved. The matter would be different if a Judge has demitted the office or has been transferred. Similarly, in the trial court, the matter would stand on a different footing, if the Presiding Officer has been superannuated or transferred. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum-shopping which is decryable in law”.”

               What’s more, the Bench then minces no words in pointing out in para 6 that, “In the matter on hand, it is clear that the well settled principle of law enunciated in the decisions cited supra has not been followed, inasmuch as the second application for anticipatory bail was heard by a different Judge in spite of the availability of the Judge who had disposed of the first application.”

It cannot be lost on us that it is then observed in para 7 that, “Be that as it may, even on merits we do not find any reason to take a lenient view in favour of the accused. This Court vide its order dated 19.03.2018 observed that the accused is at liberty to surrender before the concerned Trial Court and obtain regular bail, but he did not choose to surrender. In any event, since there has been no change of circumstance for grant of anticipatory bail in the second application since the disposal of the first, in our considered view, the High Court was not justified in granting anticipatory bail to the accused.”

More crucially, it is then observed in para 8 that, “It may be noted that the only reason assigned by the High Court for granting anticipatory bail is that the accused has shown his bona fides towards liquidating his liability by offering an encumbered property in Survey No. 121 belonging to his father, which might fetch a sum of Rs 45 lakhs, and also by handing over demand drafts for a sum of Rs 40 lakhs in favour of the complainant. Except for this, no other reason has been assigned. Since the allegation against the accused is that he has furnished two forged Bank Guarantees worth Rs. 10 Crores in lieu of the appellant’s services, and having regard to other facts and circumstances on record, we do not find this to be a change in circumstance that justifies the order of anticipatory bail based on the second application of the accused.”

Now it is time to dwell on the concluding paras. It is held in para 9 that, “In this view of the matter, we find that the order of the High Court granting anticipatory bail to the accused is liable to be set aside, and the same stands set aside accordingly.” Lastly, it is then held in para 10 that, “The accused is directed to surrender before the concerned Trial Court and it is open for him to seek regular bail. The appeal is allowed accordingly.”

As things stand, we thus see that leave is granted. Also, the appeal is allowed in terms of the signed order. The accused is directed to surrender before the concerned Trial Court and it is open for him to seek regular bail.

All said and done, this noteworthy, latest and commendable judgment makes it absolutely clear that successive bail applications should be placed before the same Judge who considered the first one. Many case laws were cited in this notable judgment to support this logical point of view which has already been considered in exhaustive detail in the above paras. It is only when the Judge either resigns or is transferred or is not available for some other reason that the bail application can be placed before some other Judge! All courts and all Judges must always strictly adhere to what has been laid down in this landmark and latest case by none other than the top court itself so explicitly and so elegantly!

Sanjeev Sirohi

Courts Cannot Decide Eligibility And Essential Qualifications For Employment: Supreme Court

At the outset, it would be imperative to mention that in a laudable, landmark and latest judgment delivered on May 3, 2019, the Supreme Court has laid down in no uncertain terms that the courts cannot decide eligibility and essential qualifications for employment. That is certainly also not the job of the Court! In this noteworthy Supreme Court judgment titled The Maharashtra Public Service Commission Through Its Secretary Vs. Sandeep Shriram Warade And Others in Civil Appeal No(s). 4597 of 2019 (arising out of SLP (Civil) No(s). 8494 of 2018) along with other Civil Appeals and authored by Justice Navin Sinha for himself and Justice Arun Mishra has clearly, categorically and convincingly held that, “If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same.”

First and foremost, the ball is set rolling in para 1 wherein it is observed that, “Delay condoned. Leave granted.” Para 2 then brings out that, “The appellants are aggrieved by the orders of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.”

On the one hand, it is pointed out in para 3 that, “Learned counsel for the appellants submitted that academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. The High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.”

On the other hand, para 4 then points out that, “Learned counsel for the respondents submitted that they were Post Graduates (M. Pharma) having more than three years experience in research and development coupled with testing of drugs in a laboratory. They were also eligible to be considered for appointment and were called for selection after scrutiny of their documents by a Committee constituted for the purpose and which recommended them as eligible for consideration. Once they were consciously permitted to participate in the selection process, they could not be declared ineligible for consideration. Reliance was placed on the definition of manufacturing process in Section 3(f) of the Drugs and Cosmetics Act, 1961 (hereinafter called “the Act”). No other grounds were urged by the parties.”

Be it noted, it is then disclosed in para 5 that, “The Maharashtra Administrative Tribunal (hereinafter referred to as “the Tribunal”) in O.A. No. 820 of 2013 held that experience of manufacturing or testing in a research and development laboratory could not be termed as experience for the purposes of the present recruitment. The said experience only entitled the candidate for a preference subject to possessing the basic eligibility and requisite experience in the manufacture and testing of drugs.”

What followed next is disclosed in para 6 which states that, “Reversing the conclusion of the Tribunal, the High Court in W.P. No. 6637 of 2014 and analogous cases held that to deny opportunity to a candidate possessing research experience in synthesis and testing of drugs in a laboratory on the ground that such research experience cannot be linked with manufacturing, would be a perverse interpretation. A candidate having research experience in synthesis and testing of drugs in a laboratory needed to be preferred and could not be denied opportunity by misreading the eligibility conditions. Research work carried out in well reputed laboratories is for the purposes of manufacturing drugs. This order was followed by the High Court in W.P. No. 7960 of 2016 instituted before the High Court directly.”

After hearing the version of both the sides and considering them duly, the Bench then goes on to observe in para 7 that, “We have considered the respective submissions. It is considered prudent to first set out Section 3(f) of the Act and the extract of the advertisements.

“3(f) “manufacture” in relation to any drugs (or cosmetic) includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution but does not include the compounding or dispensing of any drug or the packing of any drop or cosmetic in the ordinary course of retail business and to manufacture shall be construed accordingly.”

Needless to say, it is then stated in para 8 that, “The qualifications in the advertisement dated 04.01.2012 for Assistant Commissioner (Drugs) reads as follows:

“(b) Possess qualification and experience prescribed as under:-

(i)                         Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law, and

(ii)                      Experience gained after acquiring qualification in the manufacture or testing of drugs or enforcement of the provisions of the Act for a minimum period of five years”.”

As things stand, it is then brought out in para 9 that, “The advertisement for Inspectors, reads as follows:-

“Clause 4.5 – Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in clinical Pharmacology or Microbiology from a University established in India by law; and

Clause 4.6 – Practical experience gained after acquiring qualification above in clause (i) in the manufacture or testing of drugs or enforcement of the provisions of the Act for a period of not less than three years;

Clause 4.7 – Preference may be given to candidates having a post graduate degree in a subject mentioned in clause 4.5 or research experience in the synthesis and testing of drugs”.”

More importantly, the Bench then explicitly and elegantly held in para 10 that, “The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements of a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

To be sure, it is then clarified in para 11 that, “The fact that an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

What’s more, it is then pointed out in para 12 that, “The plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.”

Furthermore, it is then elucidated in para 13 that, “Manufacture has been defined as a process for making, altering, ornamenting, finishing, packing, labeling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution. Therefore, the experience of testing has to be correlated to the manufacturing process which naturally will be entirely different from the testing carried out in the research and development laboratory before the product is released for manufacture and sale in the market. To say that experience in testing of drugs in a research and development would be at par with the testing done at the time of manufacture before sale cannot be countenanced and has to be rejected.”

It also cannot be lost on us that it is then enunciated in para 14 that, “The preference clause in Clause 4.7 only means that if a candidate with the required degree qualification and practical experience in the manufacturing and testing of drugs for stipulated period of years has an additional desirable attribute of a research experience in a research laboratory, other things being equal, preference could be given to such a candidate. The term “preference” mentioned in the advertisement cannot be interpreted to mean that merely because a candidate may have had the requisite experience of testing in a research and development laboratory he/she possessed the essential eligibility and had a preferential right to be considered for appointment.”

Finally and perhaps most importantly, in the last para 16, it is then held that, “We are therefore unable to uphold the interpretation of the terms of the advertisement as made by the High Court both with regard to the posts of Assistant Commissioner (Drugs) and Drug Inspectors. The impugned orders of the High Court dated 04.05.2017 and 17.07.2017 are set aside. The appeals are allowed. There shall be no order as to costs.”

In conclusion, it can well be said that the Apex Court has made it absolutely clear in this landmark judgment that courts cannot decide eligibility and essential qualifications for employment. This is not their job also! It has thus very rightly imposed self-restrictions on courts itself and made it clear that they are not to be violated! Para 10 of this extremely laudable judgment is most useful to recall in this regard. Very rightly so!

Sanjeev Sirohi,

Solitary Confinement Of Death Convict Prior To Rejection Of Mercy Petition Palpably Illegal: Supreme Court

 

                          In a major and significant development, the Supreme Court just recently on April 24, 2019 in a latest, landmark and laudable judgment titled Union of India and Ors. Vs. Dharam Pal in Criminal Appeal No. 804 of 2019 [@Special Leave Petition (Crl.) No. 498 of 2016] has clearly, categorically and convincingly observed that solitary confinement of a person sentenced to death prior to the rejection of mercy petition is palpably illegal. There can be no denying it! But simultaneously it has also to be borne in mind that the Bench of Apex Court comprising of Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer in this noteworthy and commendable judgment have also upheld the Punjab and Haryana High Court judgment that had commuted the death sentence awarded to a murder accused whose mercy petition was rejected by the President of India in 2013.

First and foremost, it is pointed in para 2 of the judgment that, “The instant criminal appeal is directed by the State against the decision of the High Court of Judicature of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 7436 of 2013 (O&M) whereby the High Court allowed the Writ Petition filed by the Respondent Dharam Pal and commuted the death sentence awarded to him to life imprisonment. The Respondent was tried and convicted under Section 302/34 of the Indian Penal Code (hereinafter, “IPC”) for the commission of murder of five persons belonging to the same family.”

To recapitulate, it is then pointed out in para 3 that, “The brief facts leading to the impugned Writ Petition are that, the Respondent Dharam Pal, in an earlier incident was convicted under Section 376/452 of the IPC vide judgment dated 04.07.1992 passed by the Additional Sessions Judge, Sonepat, in Sessions Case 11 of 1991 and sentenced to undergo rigorous imprisonment for ten years. The Respondent was released on bail by the High Court while admitting his appeal, however on the intervening night of 09.06.1993 and 10.06.1993 at around 03:30 a.m., the Respondent accompanied by his brother Nirmal Singh committed the murder of five persons who were the family members of the prosecutrix for whose rape the Respondent was convicted.”

Furthermore, para 4 then points out that, “The Respondent and his brother were tried and convicted under Section 302/34 of the IPC by the Sessions Court, Sonepat in Sessions Case No. 65 of 1993. Vide its judgment dated 05.05.1997, the said Court sentenced both the accused to be hanged until death. Death Reference was heard and the conviction and sentence was affirmed by the High Court by its judgment dated 29.09.1998. The Respondent and his brother, further filed an appeal before this Court, which came to be partly allowed, commuting the death sentence of the Respondent’s brother Nirmal Singh into life imprisonment, but upheld the death sentence of the Respondent taking into account his conviction in the rape case, and commission of murder of five family members of the prosecutrix of that case while on bail. Thus, this Court vide judgment and order dated 18.03.1999 confirmed his death sentence and directed that he be hanged until death.”

Moving on, it is then observed in para 5 that, “The Respondent filed a mercy petition before the Governor of the State of Haryana under Article 161 of the Constitution of India, which came to be rejected after which, on 02.11.1999, the Respondent sought pardon from the President of India in exercise of powers under Article 72 of the Constitution. However, on 25.03.2013, the President rejected his application, after an inordinate and unexplained delay of 13 years and 5 months, and a date was fixed for his execution. It is pertinent to mention that in the meantime, the Respondent had filed an appeal against his conviction in Sessions Case No. 11 of 1991 under Section 376/452 of the IPC before the High Court, which came to be allowed acquitting him for the said offence vide order dated 19.11.2003.”

What’s more, para 6 then enunciates that, “It is under these circumstances that the Respondent filed the impugned Writ Petition before the High Court praying for his death sentence to be commuted to life imprisonment in light of the changes in circumstances viz. his acquittal in the rape case, which was an important deciding factor by this Court in negating his appeal. He also challenged it on grounds of delay in deciding his mercy petition by the President, among other grounds.”

To be sure, it is then unfolded in para 7 that, “The High Court while allowing his Writ Petition held that it is a case of violation of the fundamental rights of the Respondent, which makes him eligible for getting his death sentence commuted to life imprisonment, and orders were passed accordingly. The State has filed this appeal against the decision of the High Court.”

Needless to say, para 8 then discloses that, “In the Statement of Objections filed by the State of Haryana before the High Court, it is admitted that the Respondent has remained in solitary confinement for a period of 18 years, and has undergone imprisonment for a total period of more than 25 years till date. It is also an admitted position that the order of acquittal of the Respondent in the Sessions Case No. 11 of 1991 was not put to the notice of the President while deciding the mercy petition, the failure of which is argued to be pivotal in deciding the mercy petition causing prejudice against the Respondent.”

While presenting the version of the appellant and the respondent, it is then brought out in para 9 that, “The learned counsel for the appellant argued that the impugned judgment is erroneous as the delay in disposing the mercy petition pending before the President was justified. He tried to explain the various stages and reasons for the delay in deciding the petition. He further brought to our attention the nature of the offence committed by the Respondent, i.e. the gruesome cold-blooded murder of five persons. He finally prayed the impugned judgment be set aside and orders for executing the Respondent be passed.

Per contra, the counsel for the Respondent supported the judgment of the High Court inasmuch as there is a real and apparent violation of the Respondent’s fundamental rights due to the inordinate delay in deciding the mercy petition, 18 years of solitary confinement before the rejection of the mercy petition and that the acquittal in the rape case was not put on record before the President at the time of deciding the mercy petition causing grave prejudice and injustice against the Respondent. He prayed that the appeal may be dismissed, and the Respondent be released from prison upon remission of sentence as he has already spent over 25 years in prison.”

After hearing both the parties, the Bench then observed in para 10 that, “We have heard the parties at length and have perused the case records. It is our considered opinion that the High Court is entirely justified in allowing the Writ Petition filed by the Respondents. We find no error or illegalities with the order passed, and concur with its findings.”

For the sake of brevity, only the key points of para 11 deserves mention. It very clearly and convincingly states that, “As mentioned supra, it is admitted that the Respondent has undergone incarceration for a total period of over 25 years, out of which 18 years were in solitary confinement. Throughout the period of deciding his mercy petition by the President, he was kept in solitary confinement in various jails.”

More importantly, it is then further very rightly pointed out in this same para 11 that, “Solitary confinement prior to the disposal of the mercy petition is per se illegal and amounts to separate and additional punishment not authorized by law.”

It would be worthwhile to also mention here that in this same para 11, it is then also rightly pointed out while referring to landmark case titled Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494, (Constitution Bench)] that, “The sum and substance of the judgment in Sunil Batra, (supra), is that even if the Sessions Court has sentenced the convict to death, subject to the confirmation of the High Court, or even if the appeal is filed before the High Court and the Supreme Court against the imposition of death punishment and the same is pending, the convict cannot be said to be “under sentence of death” till the mercy petition filed before the Governor or the President is rejected.”

Not stopping here, it is then further held in this same para 11 that, “This Court in Shatrughan Chauhan v. Union of India [(2014) 3 SCC 1, (3 Judge Bench)] with approval of Sunil Batra (supra) has observed thus:

“90. It was, therefore, held in Sunil Batra case [ Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri.) 155] that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners “under sentence of death”. The crucial holding under Section 30(2) is that a person is not “under sentence of death”, even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not “under sentence of death” even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be “under sentence of death” means “to be under a finally executable death sentence”.

91. Even in Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248], this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] and would amount to inflicting “additional and separate” punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155]”.”

To say the least, it is then held in para 12 that, “Thus, solitary confinement prior to the rejection of mercy petition, which has taken place in spite of various decisions of this Court to the contrary, is unfortunate and palpably illegal. In the present case, the Respondent underwent such a long period of solitary confinement that too, prior to his mercy petition being rejected, thereby making it a formidable case for commuting his death sentence into life imprisonment, as rightly held by the High Court.”

It cannot be lost on us that it is rightly elaborated upon in para 14 that, “In our considered opinion, the High Court examined the inordinate delay in disposing the mercy petition in the right perspective to hold it illegal, and thereafter commuted the sentence to life imprisonment in light of the aforementioned principles of law laid down in Shatrughan Chauhan (supra). These aspects, coupled with the fact that the authorities did not place the records regarding the acquittal of the Respondent in the rape case before the President for consideration of the mercy petition has caused grave injustice and prejudice against the Respondent. On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction. When the matter is placed before the President, it is incumbent on the part of the concerned authority to place all the materials such as judgments of the courts, as well as any other relevant material connected with the conviction. In the present case, this Court while upholding the death sentence of the Respondent and commuting the sentence of his brother to life imprisonment had placed reliance on the fact that the Respondent was convicted in the rape case, and the persons who he had killed were the family members of the prosecutrix of the rape case. The fact that he was subsequently acquitted for that case has great bearing on the quantum on sentence that ought to be awarded to the Respondent and the same should have been brought to the notice of the President while, deciding his mercy petition. Failure to do so has caused irreparable prejudice against the Respondent.”

Finally and perhaps most importantly, it is then held in para 15 that, “Therefore, considering the facts and circumstances of this case, it is our considered opinion that the High Court has not erred in setting aside the sentence of death of the Respondent and commuting the same into life imprisonment. Considering the aforementioned reasons discussed by us such as the unconscionable delay of more than 13 years in deciding the mercy petition, the failure to produce the relevant documents regarding the Respondent before the President for deciding the mercy petition and that the Respondent has undergone 18 years of illegal solitary confinement, we find no reason to interfere with the decision of the High Court. However, considering the fact that the Respondent had violated the conditions of bail imposed on him by the High Court in criminal appeal, inasmuch as he had committed the murder of five persons while on bail, cannot be overlooked while quantifying the actual sentence. In our considered opinion, having regard to the totality of facts and circumstances, and for the reasons mentioned supra, it would be appropriate to direct the release of the Respondent after the completion of 35 years of actual imprisonment including the period already undergone by him.”

In closing, it may well be said that the Apex Court has by this landmark ruling has sought to send an unmistakable and loud message that, “Solitary confinement of death convict prior to rejection of mercy petition is palpably illegal.” It cannot be justified on any ground. All courts must always bear this in mind while deciding on such cases!

In this significant ruling, we saw how Dharam Pal remained in solitary confinement for a period of 18 years in gross violation of the rules and how he also underwent imprisonment for a period of more than 25 years till date! This should never have happened but happened in case of Dharam Pal! This noteworthy judgment has also made it amply clear that prolonged delay in execution of death sentence violates the fundamental rights for which there can be no justification whatsoever!

No doubt, this commendable judgment also sends a very loud, clear and categorical message that all relevant material should always without fail be placed before the President while he considers mercy petition of convicts like the judgments of the courts as well as any other relevant material connected with the conviction! We saw how in this notable case the Bench itself observed that the fact that he was subsequently acquitted in the rape case (SC while confirming his death sentence had taken note of the conviction by Trial Court) has great bearing on the quantum on sentence that ought to be awarded to him and the same should have been brought to the notice of the President while deciding his mercy petition! There can be no denying or disputing it!

Sanjeev Sirohi