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

 

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

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

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

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

“5. Continuance of existing laws and their adaptation-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi,

Maxwell Chambers Suites Officially Opens Today Giving Yet Another Boost to Singapore’s Legal Hub Position

The world’s two largest economies, the United States and China, and three of the four largest economies in Asia, China, India and South Korea, along with 46 States met in Singapore today and inked a new international treaty on mediation that will enable the enforcement of mediated settlement agreements amongst the signatory countries. Singapore was the first signatory of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, when it opened for signature in Singapore today.

Ministers and Senior Officials representing 70 countries attended the Singapore Convention Signing Ceremony and Conference to give their support to the new international treaty. To mark the historic signing, Minister for Home Affairs and Minister for Law K Shanmugam, SC and the United Nations (UN) Assistant Secretary-General for Legal Affairs Stephen Mathias jointly named an orchid, “Aranda Singapore Convention on Mediation”. This is the first time an orchid is named after a United Nations (UN) Treaty.

Singapore Minister for Home Affairs and Minister for Law K Shanmugam, SC today officially opened Maxwell Chambers Suites, the new extension of Maxwell Chambers. He was joined by Minister in the Prime Minister’s Office and Second Minister for Finance and Education Indranee Rajah and Senior Minister of State for Law and Health Edwin Tong, as well as ministers and senior officials from 12 countries, and more than 350 guests from the government, judiciary, law firms, dispute resolution institutions, law associations, businesses and academia.

The opening of Maxwell Chambers Suites will further enhance Singapore’s status as an international legal hub. It follows the opening of INSOL’s Asia hub on 5 August 2019 and the signing of the Singapore Convention on Mediation on 7 August 2019.  In his keynote speech at the opening of Maxwell Chambers Suites, Minister Shanmugam announced yet another two boosts to Singapore’s leading position:

First, the American Arbitration Association International Centre for Dispute Resolution (AAA-ICDR) will set up its Asia headquarters and case management centre at Maxwell Chambers Suites. AAA-ICDR will be the 6th dispute resolution institution to establish its case management office there, making it home to the highest concentration of case management offices in the world. AAA-ICDR joins INSOL which announced the launch of its Asia hub in Singapore on 5 August 2019. Maxwell Chambers Suites will house at least 11 international institutions (Annex A) and 20 disputes chambers and practices from 11 countries (Annex B).
Second, to meet growing demand for dispute resolution services in Asia, Maxwell Chambers will also be expanding its hearing facilities. 15 more hearing and preparation rooms will be added to its current 22 rooms, bringing the total to 37, a 60% increase. The new hearing facilities will be operational in August 2019. Maxwell Chambers will also offer six specially-designed executive suites for short-term rental to arbitrators, mediators and counsel who are based overseas but fly in and out of Singapore for dispute resolution.
Explaining the significance, Minister Shanmugam said, “This week, two top international institutions, INSOL which is based in London and AAA-ICDR based in New York, announced setting up their respective Asia Hubs in Singapore. We are happy that they have chosen Singapore, it shows their assessment of the opportunities in Asia, and that Singapore can help tap into those opportunities.” Maxwell Chambers Chairman, Philip Jeyaretnam SC said, “Maxwell Chambers, which will house more hearing facilities and international institutions and a record number of case management offices, is a tangible expression of the capability we have built up over the years, which will power our ambition to be the top international legal hub, in Asia and the world. Maxwell Chambers is the place to be, for many dispute practitioners. Their cases are heard here, in purpose-built facilities designed to support their work, and there are synergies to be gained from being part of a community and an entire eco-system in Singapore, not found anywhere else in the world. We have seen rising caseload and are operating near maximum capacity on some days. The new hearing facilities and executive suites are opportunities for us not just to meet demand, but to set new frontiers and continue to be the global standard-bearer.”

For arbitration, in 2018, Singapore was ranked as the top arbitration seat in the Asia-Pacific, and third in the world, after London and Paris. Singapore was also ranked within the top four in all regions of the world, except Latin America, including Europe, North America, Africa and Middle East. Singapore was the only Asia-Pacific jurisdiction to be ranked within top four outside the Asia-Pacific. For mediation, in December 2018, the United Nations General Assembly adopted a new international treaty on mediation, and agreed for it to be named after Singapore. Ministers and other senior officials from [xx] countries attended the signing ceremony yesterday to support the Singapore Convention on Mediation. Maxwell Chambers is the world’s first integrated dispute resolution complex, housing both best-in-class hearing facilities and top international dispute resolution institutions. Since its establishment in 2010, Maxwell Chambers has quickly become one of the most preferred hearing facilities in the world. The new Maxwell Chambers Suites adds 120,000 square feet of floor space, allowing Maxwell Chambers to triple its current size.

INSOL, established in London in 1982, is a worldwide federation of 44 member associations, with over 10,500 restructuring and insolvency professionals as members. It is at the forefront of education and technical training for practitioners, and assists in the development of countries’ restructuring and insolvency systems. The AAA-ICDR, established in New York in 1996, is the largest international provider of arbitral and dispute resolution services. It provided dispute resolution services for 993 international cases filed in 2018. The ICDR serves parties in more than 90 countries, with a staff fluent in over a dozen languages. Through more than 725 independent arbitrators and mediators, the ICDR provides a flexible, party centred process over a broad range of industries and geopolitical issues.

Condition Of Lady Advocates Vulnerable: Lawyer Approaches Supreme Court Seeking CBI Enquiry In Darvesh Yadav Murder Case

To start with, a woman advocate named Ms Indu Kaul who is a regularly practising lady advocate duly entered on the roll of bar Council of Delhi under Advocates Act, 1961  has approached the Supreme Court by filing a Public Interest Litigation (PIL) seeking CBI enquiry in the murder case of Ms Darvesh Yadav who was the newly elected President of UP Bar Council and who was shot dead within just three days of her election right inside court premises! It merits no reiteration that her brutal murder in court premises itself has thrown up very serious questions regarding the security level and this has been taken very seriously even by the Allahabad High Court itself! Chief Justice Govind Mathur of Allahabad High Court has asked all the District Judges of the State to take necessary steps for security of court campuses across the state. The Registrar General of Allahabad High Court in the communication dated June 21 has asked all the District Judges to ensure that adequate security is provided to all the persons related to ‘dispensation of justice’ in the state.

                         Earlier a delegation led by acting Chairman of UP Bar Council Prashant Singh Atal had met the Chief Justice with  regard to murder of advocate and  Chairperson of UP Bar Council – Darvesh Yadav on the Agra court premises. The delegation had demanded security for office-bearers and members of the UP Bar Council and also earnestly requested the Chief Justice to ban entry of persons carrying weapons in court premises across the state. Why ban entry of persons carrying weapons in just UP alone? It should be banned uniformly all across India in all the courts in our country!

                                      It must be mentioned here that in her PIL, advocate Indu Kaul has also sought a direction to the Bar Council of India to formulate a scheme towards the Social Security Measures for lady advocates and also for providing police security to lady advocates in court premises and its amenities beyond court working hours throughout the country. There is a lot of merit in what she has said so eloquently in her petition. The Supreme Court has agreed to hear the matter on June 25.

                                        First and foremost, it is pointed out in the petition that, “The instant petition under Article 32 of the Constitution of India is in the nature of a Public Interest Litigation highlighting the dastardly murder of first chairperson of U.P. Bar Council and lady advocate Ms Darvesh Yadav practicing at Agra District Court on 12.06.2019 by her male colleague Manish Sharma inside the chamber situated in precinct of Agra district court, State of U.P. Late Darvesh Yadav got elected as Chairperson of the Bar Council of Uttar Pradesh on 09.06.2019 and immediately after that she propelled into the world of success being the first lady Chairperson of the state bar council. Prior to this no lady advocate in the country has earned this accolade in any Bar Council in the country. Darvesh was 38 years of age and was single and unmarried. The irony is that the scourge of her dastardly murder was none other than her male colleague Manish Sharma who had been her senior in law college also and thus an old acquaintance. It is claimed by several eyewitnesses to her murder as reported in livelaw.in on 12.06.2019 and the Times of India dated 13.06.2019 and other websites namely Bar and Bench, The First Post etc. that Manish Sharma was heard saying “Tu jeet gayi (You’ve won.)” before he shot her dead thrice minutes after the victory procession was taken out at Agra district court celebrating the victory of Darvesh Yadav’s on her becoming elected as the Chairperson of Uttar Pradesh Bar Council. As reported there had been a fallout between Darvesh and Manish recently and advocate colleagues were surprised to see Manish present at the celebrations. Manish Sharma shot her thrice and then shot himself. Darvesh Yadav succumbed to her injuries on the spot. Manish Sharma was taken to the hospital where he died later. Male insecurity has been a common feature from women placed at a higher position and in many instances this becomes a constant threat for successful women. While reporting this incident it has also been found on social media that this male insecurity might have been the motive for killing Darvesh Yadav as she broke the glass ceiling by intruding and trespassing into the men’s domain.”

                          Furthermore, it is then mentioned that, “It is germane to mention that Bar Council of India respondent no. 3 has made an appeal for Advocate Protection Bill. As reported in livelaw.in dated 12.06.2019 Chairman, Bar Council of India issued a Press Release demanding that a compensation of Rs. 50 lakhs be given to the family of the deceased besides strict security of members of the Bar across country. It is ironical that the Bar Council of India Respondent No. 3 instead of paying a suitable compensation to the deceased from its own Advocate Welfares’ Fund collected from the enrolment advocates’ across the country through respective state bar councils is issuing a Press release. In addition to this Bar Councils from different states and Bar Council of India collect a huge amount of money on the sale of Advocates’ Welfare Stamp affixed mandatorily on every Vakalatnama irrespective of the fact that the case is criminal, jail petition, of women, old and indigent persons and/or PIL.”

                             More importantly, it is then pointed out in the next para that, “This petition raises an important issue that there is no social security provided to the advocates either through bar councils or bar associations. Many a times in case of premature death or fatal illness some bar associations for e.g. Supreme Court Bar Association extends a paltry sum of Rs 50000/- to Rs. 1 lakh for illness and Rs 5 lakhs in case of death and it is not out of context to mention here that on the common appeal for financial assistance by advocates, there has been some occasions when senior advocates/advocates who are well off have made generous contributions/donations. Recently as per the newspapers and bar circulars Delhi Government has promised a sum of Rs. 50 lakhs to the Bar Council of Delhi but as per the information of the petitioner there is no uniform policy of disbursement of the ‘Advocate Welfare Funds’ to ill, indisposed of on death of an advocate. Neither the bar councils nor the bar associations have formulated any policy for providing social security to the advocate members. It will not be out of context to mention here that even after ‘one bar one vote’ advocates do take membership of different associations for availing the bar facilities in the court premises but may opt to cast their vote in a bar of their choice, the paradox is when they suffer illness or injury they are left at the mercy of their own funds. The petitioner by this writ petition vindicates the fundamental rights of ill, indisposed, indigent, old and lady advocates (young and married) as guaranteed under Article 21 of the Indian Constitution to lead a life with dignity in such conditions when they are not in active practice. For instance, the petitioner by way of this Public Interest Litigation raises an issue of national importance as to would there have been any source of sustenance of Darvesh Yadav if luckily she would have survived the attack but became physically indisposed for being able to continue in active practice? An advocate like any other citizen of India has to pay for medical treatment by taking life insurance, medi claim insurance, pension, disability allowance, non-practising allowance for looking after themselves, their old parents, children’s education etc. The present petition thus raises the issue of social security of advocates at large and particularly of lady advocates and protection of lady advocates in court premises, chambers, restrooms, car parking, bar offices and libraries after the court hours.”

                                  What’s more, the sequence of events is then described in chronological order stating that, “The List of Dates is as follows:

09.06.2019 Darvesh Yadav was elected as the Chairperson of Bar Council of U.P.

12.06.2019     The last rites of Ms. Darvesh Yadav were performed in her native village Chandpur, Etah district, UP. State Law Minister Brijesh Pathak also attended the last rites of Darvesh Yadav.

12.06.2019    FIR No. 0390 dated 12.06.2019 has been lodged at P.S New Agra Distt. Agra, Uttar Pradesh by one informant Sunny Yadav, nephew of the deceased. It is reported that the chief minister of Uttar Pradesh gave instructions to the Distt. Authorities for investigation through SSP but no announcement has been made to give ex gratia amount to the deceased advocate.

19.06.2019    The petitioner invokes the extra ordinary jurisdiction of this Hon’ble Court by way of Public Interest Litigation under Article 32 of the Constitution of India praying for protection of lady advocates in the court precincts including her chamber and implementation of social security system by bar councils who have enormous funds in the name of Advocates’ Welfare Funds.”

                     Most importantly, the reasons why relief is sought is very rightly highlighted by the petitioner in para 9 stating, “That the present Writ Petition under Article 32 of the Constitution of India raises important issues pertaining to protection of lady advocates in court premises and also for having a uniform social security measure provided to them for sustaining themselves in case they suffer from any physical disability and premature death. The Petitioner thus invokes the extra ordinary civil writ jurisdiction for the issuance of the writ of mandamus on following amongst other:-

                            REASONS

I.                 BECAUSE the safety in court premises, chamber blocks, bar libraries, bar offices, car parking has no security provision like deployment of police personnels at these places.

II.              BECAUSE for the safety of lady separate rest rooms for ladies at distanced locations in close proximity of chamber blocks need to be constructed.

III.          BECAUSE there are combined chamber blocks for men and lady advocates, lady advocates fall easy prey to misbehaving male advocates including those who do not desist from consuming liquor inside the chambers and under the pretext of liquor loosely conduct themselves at public places like car parking, bar libraries and at times inside the bar offices.

IV.          BECAUSE women by and large are still unsafe in this country post amendments in criminal law and as almost every day one finds reporting about incidents of rape, sexual assault, acid attack etc. The common psyche of men in general and male advocates in particular is a lady advocate working late hours and/or wearing modern dresses is an easy going person and often lewd comments are passed against her.

V.             BECAUSE Lady advocates are found to be contesting elections in many bar associations and bar councils, the brutal murder of Darvesh Yadav in court chamber is a big deterrent for any lady advocate to dare to contest elections.

VI.          BECAUSE such incidents of rape, sexual assault, voyeurism, eve teasing reflects gender disparity even after nearly 100 years of entry of lady advocates who still maintain the rule of ‘sunrise to sunset practice’ as they still do not find it safe to work beyond court hours.

VII.      BECAUSE the women representation in the legal profession is abysmally low despite mushrooming law colleges all over the country as lady advocates still prefer corporate practice and law firms instead of litigations mainly due to lack of infrastructural facilities and security.

VIII.   BECAUSE the young lady advocates who get into marriage and have to stay away from courts periodically when they are on family way, there is no social security measure introduced towards maternity benefits. In case of illness, indisposition, old age and her becoming indigent her situation is even worse for want of non practising allowance.

IX.          BECAUSE there is no retirement age in the profession a lady advocate becomes pitiable in her old age when her practice diminishes due to her health condition and her family still nourishes the impression that being an advocate she must be capable of earning her livelihood. Through social security measures there must be a provision for pension when she opts out of active practice.

X.              BECAUSE wide gender difference is found despite increased women participation due to the professional uncertainties. The requirement of legal professional coupled with societal expectations act as inherent barriers for women. One has to invest at least 12 hours every day to survive in the field. Under these circumstances, a lady lawyer has to slog for long hours in their chambers so without adequate security facilities it is not possible.

XI.          BECAUSE if a lady advocate breaks the stereotype of being meek and that she can break the glass ceiling all circumstances start working against her such as hostility from male colleagues, insecurity in the court premises, lack of social security measures and family expectations. She has to fight it all alone.

XII.       BECAUSE the Bar Council of India instead of paying a suitable compensation to the deceased from its own Advocates Welfares’ Fund collected from the enrolment advocates’ across the country through respective state bar councils is issuing a Press release. In addition to this Bar Councils from different states and Bar Council of India collect a huge amount of money on the sale of Advocates’ Welfare Stamp affixed mandatorily on every Vakalatnama irrespective of the fact that the case is criminal, jail petition, of women, old and indigent persons and/or PIL. Bar Council of India, state bar councils have not formulated any social security measures for the sustenance of the lady advocates in their non-active period in the profession despite having huge savings under ‘Advocates Welfare Funds’ as enrolment fee, verification of licence fee and earnings from welfare stamps.”

                                             All said and done, the petitioner has raised very valid points in her writ petition by which lady advocates can stand to gain immensely if the Supreme Court grants her relief. The petitioner Indu Kaul who herself is a practicing lady advocate has very rightly sought direction to the Bar Council of India to formulate schemes towards the Social Security Measures for lady advocates and most importantly has very rightly sought police security to lady advocates not just in court premises but also beyond court premises in working hours throughout the country. It will be a major breakthrough if the Supreme Court accepts her writ petition and this will not just be her personal victory but it will be the victory of all lady advocates who under present circumstances are working in unfavourable conditions with no security available to them which some times even culminates in their gruesome murder also as we saw just recently in the case of UP Bar Council Chairperson Darvesh Yadav who was murdered right inside court premises shortly after attending the welcome ceremony of being elected as Chairperson! This burning issue directly concerning the security of lady advocates cannot be kept any longer in the cold storage! There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Plaintiff Cannot Be Forced To Add Parties Against Whom He Does Not Want To Fight: Supreme Court

It is worth noting and worth mentioning that in a latest, landmark and laudable judgment titled Gurmit Singh Bhatia Vs Kiran Kant Robinson and others in Civil Appeal Nos. 5522-5523 of 2019 delivered on July 17, 2019, the Supreme Court while exercising its civil appellate jurisdiction has reiterated that, in a suit, the plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. All the courts must always bear this in mind while delivering judgments in such matters. There can be no denying or disputing it!

                                            To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice DY Chandrachud of Supreme Court wherein it is pointed out that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 3.7.2013 passed in Writ Petition No. 856/2012 and order dated 5.8.2013 passed in Review Petition No. 169/2013 in Writ Petition No. 856/2012 by the High Court of Chhattisgarh at Bilaspur, by which the High Court has allowed the said writ petition preferred by the original plaintiffs and has quashed and set aside the order passed by the learned trial Court allowing the application preferred by the appellant herein for impleading him as a necessary party to the suit filed by respondent nos. 2 and 3 herein – the original plaintiffs, the original applicant – appellant has preferred the present appeals.”

                                       To recapitulate, it is then stated in para 2 that, “The facts of the case leading to these appeals in nutshell are as follows:

          Respondent nos. 2 & 3 herein – the original plaintiffs filed a suit against respondent no. 1 herein – original defendant no. 1 for specific performance of the agreement to sell/contract dated 3.5.2005 executed by respondent no. 1 – original defendant no. 1 in the Court of learned 4th Additional District Judge, Bilaspur. That during the pendency of the aforesaid suit and despite the injunction against respondent no. 1 herein – original defendant no. 1 – original owner not to alienate or transfer the suit property, respondent no. 1 herein – original defendant no. 1 executed a sale deed in favour of the appellant herein vide sale deed dated 10.07.2008. The appellant herein – purchaser who purchased the suit property during the pendency of the suit filed an application in the pending suit under Order 1 Rule 10 of the CPC for impleadment as a defendant in the suit. It was the case on behalf of the appellant herein that he has purchased the suit property and is a necessary and proper party to the suit as he has a direct interest in the suit property. That by an order dated 5.11.2012, the learned trial Court allowed the said application and directed the original plaintiffs to join the appellant as a defendant in the suit.”

                                    Put plainly, it is then pointed out in para 2.1 that, “Feeling aggrieved and dissatisfied with the order passed by the learned trial Court dated 5.11.2012 allowing the application and permitting the appellant herein to be joined as a party defendant in the suit filed by the original plaintiffs – respondent nos. 2 & 3 herein, respondent nos. 2 & 3 herein filed writ petition No. 856/2012 before the High Court of Chhattisgarh. By the impugned judgment and order dated 3.7.2013, the High Court has allowed the said writ petition and has quashed and set aside the order passed by the learned trial Court allowing the impleadment application preferred by the appellant herein by holding that as regards the relief claimed against the original defendants and as no relief has been claimed against the appellant herein, the appellant cannot be said to be a necessary or formal party. That thereafter the appellant preferred a review application which came to be dismissed. Hence, the present appeals by way of special leave petitions.”

                                Be it noted, para 3.1 then discloses that, “Learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that once the learned trial Court allowed the impleadment application submitted by the appellant herein under Order 1 Rule 10 of the CPC holding that the appellant is a necessary and proper party, the High Court, in exercise of powers under Article 227 of the Constitution of India, ought not to have interfered with the same.”

                          Moving on, para 3.2 then further discloses that, “It is vehemently submitted by the learned Senior Advocate appearing on behalf of the appellant that as such the appellant has purchased the suit property from the same vendor and, in fact, the appellant was in prior agreement to sell holder and to protect the interest of the appellant, the appellant is a necessary and proper party. It is submitted that therefore the learned trial Court rightly allowed the impleadment application submitted by the appellant.”

                                          Going forward, it is then further added in para 3.3 that, “Making the above submissions and relying upon the decision of this Court in the case of Robin Ramjibhai Patel v. Anandibai Rama @ Rajaram Pawar, reported in (2018) 15 SCC 614 and the decision of the Bombay High Court in the case of Shri Swastik Developers vs. Saket Kumar Jain, reported in 2014 (2) Mh. L.J. 968, it is prayed to allow the present appeals and quash and set aside the impugned judgments and orders passed by the High Court and restore the order passed by the learned trial Court.”

                                        On the contrary, we then see that para 4 discloses that, “The present appeals are vehemently opposed by Shri M. Shoeb Alam, learned Advocate appearing on behalf of the original plaintiffs. It is vehemently submitted that in fact the appellant purchased the suit property during the pendency of the suit and that too in violation of the injunction granted by the learned trial Court. It is submitted that as such the prior agreement to sell upon which reliance has been placed by the appellant is a concocted and forged one. It is submitted that in any case the appellant cannot be impleaded as a defendant in a suit filed by the original plaintiffs for specific performance of the agreement to sell/contract to which the appellant is not a party. It is submitted that the original plaintiffs are the dominus litis and without their consent nobody can be permitted to be impleaded as defendant.”

                                         While  citing the relevant case law thus adding more ammunition to its submissions, it is then pointed out in para 4.1 that, “It is vehemently submitted that as such the issue involved in the present case is squarely covered against the appellant in view of the decision of this Court in the case of Kasturi v. Iyyamperumal, reported in (2005) 6 SCC 733”.

                                       Furthermore, it is then illustrated in para 4.2 that, “Insofar as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) as well as the decision of the Bombay High Court in the case of Shri Swastik Developers (supra) by the learned Senior Advocate appearing on behalf of the appellant, it is vehemently submitted by Shri M. Shoeb Alam, learned Advocate appearing on behalf of the original plaintiffs that the said decisions shall not be applicable to the facts of the case on hand. It is submitted that in the aforesaid two cases, it was an application by the original plaintiff to implead the subsequent purchaser who purchased the property during the pendency of the suits. It is submitted that as held by this Court in the case of Kasturi (supra), it is for the plaintiff/plaintiffs to implead a particular person/persons as defendant/defendants and if he/they does not/do not join then it will be at the risk of the plaintiff/plaintiffs. It is further submitted that the plaintiff cannot be forced to implead any other person, more particularly who is not a party to the contract, against the wish of the plaintiff. It is submitted that therefore the aforesaid two decisions, upon which reliance has been placed by the learned Senior Advocate appearing on behalf of the appellant, shall not be applicable to the facts of the case on hand. It is submitted that as such the decision of this Court in the case of Kasturi (supra) clinches the issue and shall be squarely applicable to the facts of the case on hand.”

                                              To put things in perspective, it is then ruled in para 5.1 after hearing the learned counsel for the respective parties at length that, “At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner – vendor – original defendant no. 1 for specific performance of the agreement to sell with respect to suit property dated 3.5.2005. It is an admitted position that so far as agreement to sell dated 3.5.2005 of which the specific performance is sought, the appellant is not a party to the said agreement to sell. It appears that during the pendency of the aforesaid suit and though there was an injunction against the original owner – vendor restraining him from transferring and alienating the suit property, the vendor executed the sale deed in favour of the appellant by sale deed dated 10.7.2008. After a period of approximately four years, the appellant filed an application before the learned trial Court under Order 1 Rule 10 of the CPC for his impleadment as a defendant. The appellant claimed the right on the basis of the said sale deed as well as the agreement to sell dated 31.3.2003 alleged to have been executed by the original vendor. The said application was opposed by the original plaintiffs. The learned trial Court despite the opposition by the original plaintiffs allowed the said application which has been set aside by the High Court by the impugned judgment and order. Thus, it was an application under Order 1 Rule 10 of the CPC by a third party to the agreement to sell between the original plaintiffs and original defendant no. 1 (vendor) and the said application for impleadment is/was opposed by the original plaintiffs. Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him?”

                                     As it turned out, it is then envisaged in para 5.2 that, “An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.”

                          More significantly, it is then further added in this same para 5.2 that, “That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi (supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the parties to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party-defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no. 1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.”

                                  It cannot be lost on us that it is then envisaged in para 6 that, “Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an applicant for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi (supra).”

                         All told, it is then finally held in the last para 7 that, “In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no. 1 against the wish of the plaintiffs. Accordingly, the present appeals stand dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.”

                                   In the ultimate analysis, the Apex Court has made it absolutely clear in this notable case that plaintiff cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. It has been elaborated upon also in great detail which we have already discussed above. No doubt, all  the courts must always comply with it in all such cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Delhi High Court Imposes Rs. 50,000 Cost On Woman For False Sexual Harassment Plea

It is most heart warming to note that Delhi High Court in a latest, landmark and extremely laudable judgment titled Anita Suresh vs. Union of India & Ors in W.P.(C) 5114/2015 delivered on July 9, 2019 has rightly gone the extra mile and imposed Rs. 50,000 cost on a woman for false sexual harassment plea. The blatant misuse of laws against men is all too well known even though much as woman activists among others would like to gloss it over on one ground or the other! But this latest extraordinary judgment has served to send a very loud and stern message to all women that they dare not try to misuse laws against men without any valid cause and if they dare to do so then they should be prepared to face the music and cough up a huge amount as fine! From now onwards, women must always ensure before approaching courts that their own hands are clean and if they still don’t care then well they might find themselves landing in a hot soup as we see has happened with the petitioner in this commendable case!

                               To start with, the ball is set rolling in para 1 of this notable judgment by Justice JR Midha of the Delhi High Court wherein it is pointed out that, “The petitioner has challenged the order dated 20th January, 2012 of the Internal Complaints Committee (ICC). The petitioner is seeking a direction to respondent No. 2 to withhold the retirement benefits of respondent No. 3 to initiate independent departmental enquiry against respondent No. 3 and to also prosecute respondent No. 3.”

                            To recapitulate, it is then outlined in para 2 that, “The petitioner was working as an Assistant Director with ESI Corporation in Manesar, Gurgaon in July 2011. On 08th July, 2011, the petitioner made a written complaint to the Director General of ESI Corporation alleging sexual harassment by respondent No. 3. According to the petitioner, respondent No. 3 misbehaved and made attempts of sexual advances. The petitioner reported following two incidents dated 07th July, 2011 in the complaint:-

(i)                         ‘Yesterday when I was seated with my colleagues on the 1st floor of the building, Sh. Verma came and commented indicating sexual advances. I cannot for the reasons of modesty bring on papers the filthy language he uses for me’.

(ii)                      ‘Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon’.”

                                                 To be sure, para 3 then states that, “Respondent No. 1 constituted an Internal Complaints Committee to examine the complaint of the petitioner. Respondent No. 3 appeared before the Committee and denied all the allegations made by the petitioner. According to respondent No. 3, the petitioner made the complaint because of the grudge against him due to certain official work disposed by him in her absence.” Para 4 then reveals that, “The Committee examined the petitioner as well as respondent No. 3. The Committee examined eight witnesses namely Rashmi Kapoor (O.S.), Lakhan (Supervisor Housekeeping), Rajender Yadav (SSO), Prasanna (Staff Nurse), Hema (Staff Nurse), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician).”

                                     Be it noted, para 5 then envisages that, “The Committee submitted its report on 20th January, 2012, in which it observed that the exact content of communication of the incident dated 07th July, 2011 could not be established. The Committee gave benefit of doubt to respondent No. 3 and recommended relocating both the petitioner and respondent No. 3 from their present posting.”

                                     Needless to say, para 6 then brings out that, “Learned counsel for the petitioner urged at the time of the hearing that the findings of the Committee are erroneous and unjustified. It is submitted that the petitioner had proved by sufficient evidence that respondent No. 3 misbehaved and made attempts of sexual advances against the petitioner on 07th July, 2011 mentioned in the written complaint on 08th July, 2011. Respondent No. 3 pressurized the petitioners to withdraw her complaint whereupon a warning was issued to him on 04th November, 2011. The transfer of both the parties to different places was not a justified penalty to the respondent No. 3.”

                                  As things stand, para 7 then discloses that, “Learned counsel for the respondent No. 1 urged at the time of the hearing that respondent No. 1 transferred both the petitioner and the respondent No. 3 from their posting. It was further submitted that respondent No. 3 superannuated on 28th February, 2015.”

                            Furthermore, it is then disclosed in para 8 that, “Vide order dated 28th March, 2019, this Court directed the employer, ESI Corporation to produce the original relevant records which were produced on 09th April, 2019 and have been examined by this Court.”

                              Moving on, it is then illustrated in para 9 that, “The petitioner made the complaint dated 08th July, 2011 against the respondent no. 3 which is reproduced hereunder:-

‘To,

The Director General,

ESI Corporation,

Hqrs. Office, CIG Marg,

New Delhi – 02.

   Sub: Sexual harassment by Sh. O.P. Verma, Dy Director, ESI Hospital, Manesar, Haryana.

Sir,

         I am posted as Assistant Director in the office of ESI Hospital, Manesar. In the same office another officer Sh. O.P. Verma, Dy. Director is seated in the adjoining room where I work. For some time passed Sh. O.P. Verma has been misbehaving with me and makes attempts of sexual advances. It was only yesterday when I was seated with my colleagues on the 1st floor of the building. Sh. Verma came and commented indicating sexual advances.

        I cannot for the reasons of modesty bring on papers the filthy language he uses for me. Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon.

       I am to request you to safeguard my honour and take necessary action against him. I will explain the earlier instances of harassment as and when the matter will be investigated.

           This matter has also been brought to the notice of the Medical Superintendent in earlier and in the afternoon of 07.07.2011 also.

                                                       Yours faithfully,                                                                                  Signed/-

                                                    ( Anita Suresh)

                                                Assistant Director

                                              ESI Hospital, Manesar.’”

                                To say the least, para 10 then states that, “As per the complaint dated 08th July, 2011 of the petitioner, the respondent no. 3 made comments indicating sexual advances against the petitioner who was sitting with her colleagues on the first floor of the building on 7th July, 2011. The second incident mentioned in the complaint is that the respondent told the petitioner to come alone in the male toilet to check the shortcomings in the presence of the staff and other members.

                            More significantly, para 11 then discloses that, “The Committee examined the petitioner who could not recollect the names of any of the persons present at the time of the aforesaid incidents. The petitioner was shown the relevant papers relating to the staff members present on that day but still she could not recollect the names. The petitioner stated that she confided the incidents to Rashmi Kapoor (O.S.) on the same day after the incident. The Committee examined Rashmi Kapoor who stated that she was not present at the time of incident. However, she stated that the petitioner told her that the attitude of respondent No. 3 towards the petitioner was not good. She further stated that the petitioner told her that respondent No. 3 made two inappropriate comments against her. However, these two comments were not stated by the petitioner in her statement to the Committee.

                                   What’s more, para 12 then points out that, “The Committee examined Lakhan (Supervisor Housekeeping) who stated that the petitioner was matching the goods with the list and he did not witness any incident on 07th July, 2011 as alleged by the petitioner.” Also, para 13 then reveals that, “The Committee examined Rajender Yadav (SSO) who was present at the time of incident and he stated that there was no altercation between the petitioner and respondent No. 3.” All this certainly serves to weaken the petitioner’s claims and the serious charges which she leveled against the respondent No. 3.

                                   Going forward, para 14 then further discloses that, “The Committee examined Prasanna (Staff Nurse) who stated that the petitioner had normal relations with respondent No. 3 who never commented on her in her presence.” Para 15 then also makes it clear that, “The Committee examined Staff Nurses Hema (Nursing Orderly), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician) who did not witness any incident on 07th July, 2011.”

                                  Not stopping here, it is then brought out in para 16 that, “The Committee examined respondent No. 3 who denied all the allegations of sexual harassment made by the petitioner. He stated that he brought the absence of soap in the male toilet to the notice of the petitioner. He further stated that his remarks were misinterpreted and taken totally out of context. He further stated that the petitioner made complaint against him due to a grudge which was the result of certain official work disposed by him in petitioner’s absence.”

                                To put things in perspective, para 17 then enunciates that, “On careful consideration of the record of the inquiry proceedings, this Court is of the view that the complaint dated 08th July, 2011 of the petitioner appears to be false. The complaint dated 08thJuly, 2011 contains two incidents out of which the first incident was in the presence of the staff and other members. During the inquiry proceedings, the petitioner could not give the name of any person present at the time of the incident. The petitioner was shown the record of the staff persons present on duty on the date of the incident but still she could not recollect the names of any colleague/staff member. It is not believable that the petitioner would not remember the names of any colleague/staff member. The Committee examined all the persons who were on duty on that day but no persons supported the allegations of the petitioner. The petitioner has not mentioned the alleged comments of respondent No. 3 in the complaint on the ground of modesty. The petitioner did not even disclose the alleged comments before the Committee. Nor reason or justification was been given by the petitioner for not disclosing the same before the Committee. The entire complaint of the petitioner appears to be false and has been filed with some ulterior motive.”

                           It cannot be lost on us that delving deeper, para 18 then brings to light that, “The record produced by the respondent No. 5 contains the service record of the petitioner. The petitioner joined ESI Corporation as an Insurance Inspector on 24thSeptember, 1997. On 15th February, 1998, the petitioner was issued a charge sheet for major penalty proceeding for negligently surveying two firms ignoring vital information and suppressing material information while submitting the survey reports. Vide order dated 23rdOctober, 2001, the Insurance Commissioner took the view that the petitioner had only put one year of service in the Corporation and no malafide intention was proved and therefore, a lenient view was taken and the penalty of ‘Censure’ was imposed upon her. On 03rd March, 2006, the petitioner was issued a charge sheet for major penalty proceeding by Regional Office, Delhi on the allegations that during her posting in Legal Branch as an Insurance Inspector for the period from 22nd March, 2004 to 12th July, 2004, the petitioner had exhibited gross misconduct as she failed to follow the reasonable order of her superiors and exhibited lack of devotion towards duty. Vide order dated 22nd September, 2009, the Insurance Commissioner observed that the conduct of the petitioner was unbecoming of a Corporation employee and imposed the penalty of reduction pay by one stage for one year. The petitioner filed an appeal which was rejected by the Appellate Authority vide order dated 27th October, 2010 and thereafter, she preferred a revision petition which was also rejected. This rejection order was further challenged by the petitioner before this Court in W.P. (C) 8529/2011 which was dismissed by this Court vide order dated 24th November, 2011. On 13thJuly, 2011, the Medical Superintendent of ESIC, Hospital, Manesar, Haryana, Dr. Archana Rani gave a written memorandum to the petitioner who was posted in the hospital as an Assistant Director to show cause as to why the action should not be taken against her for insubordination and gross misconduct. The above mentioned incidents show that the petitioner did not have a clean service record.”

                               Most importantly, it is then held in para 19 that, “There is no merit in this writ petition which is dismissed with cost of Rs. 50,000/- to be deposited by the petitioner with the Delhi High Court Advocates Welfare Trust within four weeks.” Thus we see that all the tall claims made by the petitioner falls flat and fails to impress the Delhi High Court as she could not produce anything substantial to back her tall claims against the respondent No. 3! This alone explains why it is then ruled in the next para 20 that, “Respondent No. 2 is at liberty to initiate appropriate action against the petitioner for filing false complaint against the respondent No. 3 in accordance with law.”

                                      To conclude, the Delhi High Court has acted most wisely by deciding to not allow the petitioner to go scot free. She willingly decided to defame the respondent No. 3 without any concrete ground in front of the whole society. So she had to be taken to task for it! This alone explains why the Delhi High Court imposed Rs 50,000 cost on petitioner for false sexual harassment plea. Very rightly so! Not just this, she should be jailed also for at least six months or an year so that the right message goes across to all women that they dare not misuse the sexual harassment laws against men whenever they want at their own whims and fancies! We all saw how recently even the incumbent CJI Ranjan Gogoi was not spared when a subordinate women employee levelled grave charges but failed to prove anything in front of the in-house Committee set up by the Supreme Court under the chairmanship of Justice Sharad A Bobde and so palapably the CJI Ranjan Gogoi had to be exonerated! Law must apply to erring women also now! This is what the Delhi High Court has rightly sought to do here! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That would take within its sweep the right to food, the right to clothing, the right to decent environment  and a reasonable accommodation to live in. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Why Can’t Centre Order High Court Bench In West UP?

 How long will Centre like a shameless mute spectator just keep watching the law and order situation in West UP from turning more and more lawless? How long will Centre overlook the repeated merciless murder of lawyers in West UP? How long will Centre overlook the repeated ghastly attacks on policemen in West UP in which many times they are either grievously wounded or killed? It would not be incorrect to say that the time to act is now. Else Ghalib’s lament, “Hum ne maana ki taghaful na karoge lekin, khaaq ho jayenge ham tum ko khabar hote tak, (I know you may not neglect me/but it may be too late by the time you act)” might just ring true! The million dollar question is: For how long will Centre just wait?

                                       How long will Centre overlook that while it proudly ensured the creation of a High Court Bench in West Bengal at Jalpaiguri for just about 4 districts which already had a Bench at Port Blair for 3 lakh people living there as the Justice Jaswant Singh Commission headed by former Supreme Court Judge – Justice Jaswant Singh had recommended a high court bench there in mid 1970s but has taken no steps to create a high court bench in West UP as recommended very strongly by it for the more than 9 crore people living in more than 26 districts here? How long will Centre be totally heartless for West UP?

                                     How long will Centre overlook that many UP CM have in the past recommended that high court bench must be created in West UP at the earliest? How long will Centre overlook that it was Sampoornanand who had first recommended the creation of a high court bench in West UP at Meerut in 1955 after more than 100 elected representatives from West UP met him and apprised him of the need for the same? How long will Centre ignore that even former UP CM ND Tiwari, Rajnath Singh among others had recommended as UP CM that West UP must have its own high court bench?

                                           How long will Centre just admonish UP CM Yogi Adityanath that he cannot do anything on this just like it admonished him for placing 17 castes in SC list as it is the Parliament’s jurisdiction and State cannot on its own do so but itself will just do absolutely nothing to create a high court bench in West UP even as the law and order situation is turning from worse to worst and even though many of its elected MPs, Union Ministers like Defence Minister Rajnath Singh, Home Minister Amit Shah,  Gen VK Singh, Sanjeev Baliyan and many other former Union Ministers also like Dr Mahesh Sharma, Satyapal Singh among others who have all spoken in one voice demanding the creation of a high court bench in West UP and have repeatedly raised this legitimate and crying demand in Parliament also? How long will Centre be just happy by dropping upright former Union Minister like Satyapal Singh who had demanded the creation of 5 high court benches in UP at Meerut, Agra, Jhansi, Gorakhpur and Varanasi and ensure that not a single bench is created not just in West UP but in whole of UP other than the one at Lucknow created by Nehru in 1948?

                                         Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 22 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948 about 71 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP!

                                        Why is it that West UP which owes for more than 57% of the total pending cases of UP as acknowledged by the Justice Jaswant Singh Commission itself has not even a single bench of high court in any of the 26 districts? Why is it that the situation in West UP is so lawless which can be gauged from this that the newly elected Chairperson of UP Bar Council – Darvesh Singh Yadav was shot dead right inside court premises just three days after being elected just recently on June 12, 2019 yet West UP has not even a single bench of high court? Why is it that another lady advocate Kuljeet Kaur who was a Supreme Court lawyer and wife of a retired Army Officer has been found murdered in less than a month after UP Bar Council former Chairperson Darvesh Yadav’s murder right inside her house in Noida in West UP which prompted the Honorary Secretary of the Supreme Court Bar Association to write to UP CM seeking protection of live and properties of the advocates and to say that, “This murder exposes the serious slackness in law and order situation in Noida.”

                                  Where is Noida located? It is in West UP where Centre for undisclosed reasons has been shamelessly opposing the creation of a bench in any of the 26 districts and the people living here are compelled to travel whole night all the way to Allahabad to attend court hearings as there is no bench here! Why Centre is totally unmoved by repeated incidents of murder of lawyers, police officers, women among others and can’t be generous enough to create a high court bench in West UP?

                                             Why is it that the former UP High Court Chief Justice Dilip Babasaheb Bhosale who hails from Maharashtra in a heinous case involving rape of few women on national highway in Bulandshahr in West UP had rightly said as Chief Justice of Allahabad high Court that there is total lawlessness in UP as compared to Maharashtra where women can travel alone in night anywhere without any fear but still see the crowning irony that Maharashtra has 4 high court benches at Panaji, Nagpur, Aurangabad and latest at Kolhapur for just 6 districts but for UP just a single bench since 1948? When peaceful states like Maharashtra can get benches in no time then why Allahabad High Court in UP which has maximum pending cases in India has been denied its due share unfairly for such a long time?

                                       Why the lawyers of more than 20 districts of West UP keep going on strike for last nearly 40 years from May 1981 till now every Saturday protesting the denial of bench but Centre does not deem it fit to even consider it most seriously? Why the lawyers of West UP even went on strike for 6 months in 2001 and earlier also several times similarly and not stopping here even went on strike for 3 months in 2014-15 also and for nearly a month every year time and again but still West UP has no bench? Why is it that litigants of West UP are compelled to travel more than 800 to 900 km away to Allahabad to attend cases as there is no high court bench in West UP yet CJI says nothing on it? Why even the repeated murder of lawyers, police officers and others fail to shake Centre to do anything on this score?

                               Why is it that West UP always remains in the news for wrong reasons for brutal crimes and still Centre never orders creation of a bench for it? Why is it that the population of West UP at more than 9 crore is more than all states except UP of which it is a part, Maharashtra and Bihar and here too areawise West UP at 98,933 square km is bigger than Bihar which has just 94,000 square km but still has not even a bench? What a crying shame that UP CM Yogi Adityanath government has the ability to bear Rs 36,000-crore for construction of 600 km Ganga Expressway for better connectivity of Allahabad with western districts of the state and which will be the longest expressway in the world but it can’t spare just a few crores for creating a high court bench in lawless West UP or at Bundelkhand or at any other deserving place so that people are not compelled to travel so far and waste huge money in doing so for various expenses like staying, travelling, etc as Centre is just not ready for it!

                                          Why can’t Centre take serious steps to address this cancerous problem of law and order in UP root and branch by creating more benches here and not just resorting to baby steps, gimmickry and bandaid measures like reducing time limit to reach Delhi by about an hour or so by spending more than 20 crores on creating 14 lane national highways? Why can’t Centre direct UP government to immediately create a bench in West UP? Who is stopping Centre?

                                Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world yet its former Chairperson Darvesh Yadav just within three days of being elected is brutally murdered right inside court premises by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti?

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

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

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

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

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

                                      How long will Centre take to decide it? Another 100 years or 200 years or 300 years or never? It must have the guts to at least specify its clear stand on this! Dr BR Ambedkar who is the founding father of Constitution wanted UP to be divided into 3 parts as it was very big but Centre decided not just to not divide UP but also not to allow any bench anywhere else other than in Lucknow for reasons it has never had the guts to disclose from 1947 till now even though it created 2, 3 and more benches for smaller states shamelessly which alone explains that it did not accept the historic recommendation of Justice Jaswant Singh Commission to create 3 benches in UP in Agra, Nainital and Dehradun!

                                 If a high court bench is created in West UP, it is “poorest of poor” and the most deprived and hapless women who will benefit most as they will be saved from the unnecessary trouble of travelling so far and spending so much extra money, time etc to just attend one hearing alone! We all saw how a 8 year old girl was brutally raped and murdered in Aligarh just recently! Rape, gang-rape and murder have become a very common thing in West UP! This alone explains why former PM Atal Bihari Vajpayee who is the tallest leader of NDA till now himself forcefully raised this crying demand for bench in West UP inside Parliament more than 33 years ago in 1986 when he was Leader of Opposition!

                                    On a concluding note, Centre must have some pity on woman at least who are most unsafe in lawless UP and especially West UP where they are repeatedly being brutally murdered as we have seen in case of Supreme Court lawyer Kuljeet Kaur, former UP Bar Council Chairperson Darvesh Yadav among others and immediately order creation of more benches not just in West UP but also in other parts of UP where the crime rate is high! Crime rate is highest in West UP which necessitates prompt creation of high court bench here! Will Centre deny or question this also? It cannot even if it wants because the crime statistics are easily available!

                                It goes without saying that Centre must now immediately come into action and order the creation of a high court bench in West UP as strongly recommended by Justice Jaswant Singh Commission also! Let’s hope so fervently! If PM Modi really wants to implement on ground his catchy slogan of “Sabka Saath, Sabka Vikas, Sabka Vishwas” then it must immediately order the creation of a bench in West UP and other needy places in UP like Jhansi, Gorakhpur among others because this will ensure that people of all religion equally benefit from it and not just people of one special religion or community or caste alone! If West UP can’t be given a high court bench then all benches in India must be disbanded but that will not be a mature step! The perpetual disregard for the more than 9 crore people living here by denying them even a bench is most unfortunate!  The 230th report of Law Commission of India in 2009 categorically recommended the creation of more high court benches but ten years down the line we see that only few states like Karnataka, Maharashtra and West Bengal have benefited and UP has remained untouched which is most deplorable, most disgusting and most disgraceful!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Supreme Court sets aside merger order of NSEL with 63 moons technologies limited .

Judgment dated 30.04.2019 passed by the Hon. Supreme Court in 63 moons technologies limited (formerly, FTIL) Vs Union of India & Others

Vide a detailed judgment dated 30.04.2019, the Hon’ble Supreme Court of India was pleased to hold that the Order dated 12.02.2016 of forced amalgamation passed by the Central Government, was ultra vires of Section 396 of the Companies Act and violative of Article 14 of the Constitution of India. While allowing the appeals, the impugned Judgment of the Hon’ble Bombay High Court has been set aside by the Hon’ble Supreme Court.

The Order impugned was supported by the Central Government mainly on three grounds as stated and reproduced in Para 59.1 of the Judgment i.e.- a) restoring/ safeguarding public confidence; b) giving effect to business reality of the case by consolidating the business of FTIL and NSEL, and preventing FTIL from distancing itself from NSEL; c) for facilitating NSEL in recovering dues from defaulters by pooling human and financial resources of FTIL and NSEL. It was repeatedly claimed that these three grounds contribute a facet of ‘public interest’ in the context of provisions of Section 396 of the Companies Act.

The Hon’ble Supreme Court held that the first and second ground as mentioned by the High Court, were not even contained in the Draft Order of Amalgamation. Even otherwise, it was held that these grounds were in breach of Section 396(3) and (4) of the Companies Act. (Para 59.2 of the Judgment).

It was further held that so far as the third ground i.e. reason (c) is concerned, that reason by itself was for the purpose of private interest of a group of investors/traders, as distinct from public interest. It was held that-

54. In the context of compulsory amalgamation of two or more companies, the expression “public interest” would mean the welfare of the public or the interest of society as a whole, as contrasted with the “selfish” interest of a group of private individuals….

“59.5… For all these reasons, we find that no reasonable body of persons properly instructed in law could possibly arrive at the conclusion that the impugned order has been made in public interest.”

Further, the Hon’ble Supreme Court held as under:

75…Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit.”

Mr Jignesh Shah, Chairman Emeritus and Mentor, 63 moons technologies, said, “Satyamev Jayate. We have always had full faith in the Indian judiciary and our Hon. courts. Finally, truth has prevailed.”

Mr Venkat Chary, Chairman, 63 moons technologies said, justice has finally prevailed in the reasoned and well-articulated judgment of the Hon. Supreme Court which has upheld the rule of law by laying down the elaborate criterion for what is public interest and due process.

While welcoming the judgment of the Hon. Supreme Court, Mr S Rajendran, MD, 63 moons technologies, said the company has been articulating in the past that the merger will serve no purpose for the stakeholders of either NSEL or FTIL but to benefit only a few people with vested interest. As such, our stand has been fully vindicated.

Sex After Obtaining Consent By False Promise To Marry Is Rape: Supreme Court.

 

It is significant to note that the Supreme Court most recently on April 9, 2019 has very strongly and sternly reiterated in a latest, landmark and laudable judgment titled Anurag Soni v. State of Chhattisgarh in Criminal Appeal No. 629 of 2019 (Arising out of SLP(Criminal) No. 618/2019) has reiterated in no uncertain terms that the consent for sexual intercourse obtained by a person by giving false promise of marriage would not excuse him from rape charges. All those men who dare to indulge in sex after giving false promise of marriage must now always bear it in mind that they will not be excused from rape charges as has been held in this most recent case. This commendable and notable ruling is bound to send a large and clear warning to all men that they cannot take women for granted and have sex with them by falsely promising to marry and then later reneging and escaping from all liabilities!

First and foremost, the ball is set rolling in this latest judgment authored by Justice MR Shah for himself and Justice L Nageswara Rao by pointing out in para 1 that, “The application for impleadment of the prosecutrix is allowed, in terms of the prayer made.” It is then mentioned in para 1.1 that, “Leave granted”.

For the uninitiated, para 2 then states that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.10.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270/2014; by which the High Court has dismissed the said appeal preferred by the appellant herein – the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused for the offence under Section 376(1) of the IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 50,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for six months, the original accused has preferred the present appeal.”

To recapitulate, it is then unfolded in para 3 that, “The prosecution case in brief was that the prosecutrix was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiar with the accused since 2009 and there was love affair between them. The appellant had even proposed her for marriage and this fact was within the knowledge of their respective family members. At the time of incident, accused was posted as Junior Doctor in the government hospital of Maalkharoda and at that time the prosecutrix was doing her studies of Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desire to the prosecutrix that he wanted to meet her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train and reached Sakti railway station from where the accused took her on a motorcycle to his house situated at Maalkharoda and there she stayed from 2 pm of 29.4.2013 to 3 pm of 30.4.2013 and during this period despite refusal of the prosecutirx the accused established physical relation with her on the pretext of marrying her. On 30.4.2013 the accused asked the prosecutrix to leave by saying that on 1st or 2nd May he will talk to his parents about their marriage and he will soon marry with her. On 30.4.2013 at about 6 in the evening accused Anurag Soni and the prosecutirx reached Bilaspur by train and from where their friend namely Umashankar took them on a motorcycle to the house of Mallika Humne, friend of prosecutrix, where the accused dropped her and went back. Next morning accused dropped the prosecutrix at Railway Station, Bilaspur from where she boarded train for Bhilai (Durg). Accused asked the prosecutrix not to tell about the incident to anyone and as a result of which the prosecutrix did not disclose the incident to anyone, but from 2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from the accused about the marriage and when she did not receive any reply from the accused, on 6.5.2013, she informed her family members about the incident and then the family members of the prosecutrix had gone to the house of accused at village Kharod and informed his family members about the incident whereupon the family members of accused had said that now marriage of accused and prosecutrix was the only option available. In the meantime, members of both the families used to visit house of each other, however, after keeping the prosecutrix and her family members in dark for about two months, the accused had refused to marry the prosecutrix and performed marriage with another girl and then on 21.6.2013 the prosecutrix submitted written report (Ex. P-3) in the police station Maalkharoda in respect of rape committed by the accused upon her on the pretext of marriage based on which FIR (Ex. P-4) for the offence under Section 376 of IPC was registered against the accused.”

As anticipated, we then see that para 3.1 brings out the following: “That during the course of investigation, the investigating officer recorded the statement of concerned witnesses including the prosecutrix. The investigating officer collected the medical evidence and other evidence. After completion of the entire investigation, a charge sheet was filed against the accused for the offence punishable under Section 376 of the IPC.”

Furthermore, it is then pointed out in para 3.2 that, “That the learned magistrate committed the case to the learned Sessions Court which was numbered as Sessions Trial No. 201/2013. That the learned Sessions Court framed the charge against the accused for the offence under Section 376 of the IPC. The accused denied the charge so framed and claimed trial, and therefore he came to be tried by the learned Sessions Court for the aforesaid offence.”

To be sure, it is then stated in para 3.3 that, “The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix (PW3) as under:

1.  Pritam Soni                   PW1

2.  Manikchand                  PW2

3.  Prosecutrix                    PW3

4.  Patwari Ghanshyam     PW4

5.  Dr. C.K. Singh                 PW5

6.  Dr. K.L. Oraon                PW6

7.  Amritlal                           PW7

8.  Pankaj Soni                     PW8

9.  Dr. P.C. Jain                               PW9

10. Constable Jawaharlal            PW10

11. Sub-Inspector S.P. Singh       PW11

12. Inspector Sheetal Sidar         PW12

13. Srimati Priyanka Soni             PW13

 

Simply put, it is then observed in para 3.4 that, “After the closing pursis were submitted by the prosecution, three witnesses were examined on behalf of the accused in defence. The statement of appellant-accused was recorded under Section 313 of the Cr.P.C. wherein he denied the circumstances appearing against him and pleaded innocence and false implication. As per the accused his marriage was already fixed with one Priyanka Soni and this was in the knowledge of the prosecutrix, even then the prosecutrix and her family members continued to pressurise him to marry the prosecutrix, and then he married with Priyanka Soni on 10.6.2013 in Arya Samaj. Therefore, it was the case on behalf of the accused that a false FIR was lodged against him.”

Needless to say, it is then narrated in para 4 that, “That on appreciation of evidence, the learned Sessions Court observed and held that the prosecutrix gave consent for sexual intercourse on a misrepresentation of fact and the promise by the accused that he would marry the prosecutrix and therefore the said consent cannot be said to be a consent and therefore the accused committed the offence under Section 376 of the IPC. Thereupon, the learned Sessions Court convicted the accused for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment.”

Going forward, it is then illustrated in para 5 that, “Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Sessions Court, the accused preferred appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the appeal and has confirmed the judgment and order passed by the learned Sessions Court convicting the accused for the offence under Section 376 of the IPC.”

Be it noted, it is then noted in para 6 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the appeal and confirming the conviction and sentence of the accused for the offence under Section 376 of the IPC, the original accused has preferred the present appeal.”

After hearing the learned counsels appearing on behalf of the respective parties at length, it is then observed in para 9 that, “In the present case, the accused has been convicted for the offence under Section 376 of the IPC. It is the case on behalf of the appellant-accused that as it is a case of consensual sex, the Courts below have committed an error in convicting the accused for the offence under Section 376 of the IPC. Both the Courts below have accepted the case of the prosecution that the consent of the prosecutrix was given on the basis of misconception of fact and, therefore, considering Section 90 of the IPC, such a consent cannot be said to be a consent and, therefore, the accused has committed the rape as defined under Section 375 of the IPC and thereby has committed an offence under Section 376 of the IPC. Therefore, the question which has been posed before this Court is, whether in the facts and circumstances of the case and considering the evidence on record, the Courts below have committed any error in holding the accused guilty for the offence under Section 376 of the IPC?”

What’s more, it is then elucidated in detail in para 13 that, “Applying the law laid down by this Court in the aforesaid decisions, the following facts emerging from the evidence on record are required to be considered:

(i)             That the family of the prosecutrix and the accused were known to each other and, therefore, even the prosecutrix and the accused were known to each other.

(ii)          That though the accused was to marry another girl – Priyanka Soni, the accused continued to talk of marriage with the prosecutrix and continued to give the promise that he will marry the prosecutrix.

(iii)       That on 28.04.2013 the appellant expressed his wish telephonically to meet with the prosecutrix and responding to that the prosecutrix went to the place of the accused on 29.04.2013 by train, where the accused received her at the railway station Sakti and took her to his place of residence in Malkharauda.

(iv)       That during her stay at the house of the accused from 2.00 pm on 29.04.2013, they had physical relation thrice;

(v)          That as per the case of the prosecutrix, the prosecutrix initially refused to have physical relation, but then the appellant allured her with a promise to marry and had physical relation with her;

(vi)       That, thereafter the prosecutrix called the accused number of times asking him about the marriage, howeer, the accused did not reply positively;

(vii)    That thereafter the prosecutrix informed about the incident to her family members on 06.05.2013;

(viii) That the family members of the prosecutrix negotiated with the family members of the accused;

(ix)       That on 23.05.2013, the appellant expressed his willingness to marry the prosecutrix and a social function was scheduled on 30.05.2013, which did not take place;

(x)          That, again the family members of both the parties had talks, in which the marriage was negotiated and a social function was scheduled on 10.06.2013, which was again not held and further, the social event was fixed for 20.06.2013;

(xi)       That on 20.06.2013, the appellant telephonically informed the prosecutrix that he has already married;

(xii)    That, Priyanka Soni PW-13, who is the wife of the accused stated that one year prior to the marriage that took place on 10.06.2013, the negotiators were going on; and

(xiii) That the accused married Priyanka Soni on 10.06.2013 in Arya Samaj, even prior to the social function for the marriage of the accused the prosecutrix was scheduled on 10.06.2013 and even thereafter the social event was fixed for 20.06.2013.”

 

Having said this, the Apex Court then hastened to elegantly add further in para 14 that, “Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B-Pharmacy. Therefore, it is not believable that despite having knowledge that appellant’s marriage is fixed with another lady – Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.”

To put it succinctly, it is then held in para 15 that, “Now, so far as the submission on behalf of the accused-appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inception the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.”

It is then held in this same para 15 while condemning the most reprehensible and rapidly multiplying rape crime and without mincing any words that, “As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamount to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him.”

Lastly, it is then held in para 16 that, “In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant-accused under Section 376 of the IPC. We also maintain the conviction of the appellant-accused under Section 376 of the IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant-accused, the sentence of 10 years’ RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. Consequently, the present appeal is partly allowed to the aforesaid modification in the sentence only.”

What should I say of these two Judges – Justice L Nageswara Rao and Justice MR Shah? What should I say about this extremely landmark and laudable judgment delivered by them? I am too small a fry to comment on them. But one thing is for sure: They have left no doubt in sending a loud and clear message to all men that if you dare to indulge in sex with any women by showing a carrot in the form of a false promise to marry, you too then shall be held liable in the same manner just like any other rapist who forcibly rapes woman as you have obtained her consent falsely for which you certainly must face the consequences! They certainly do deserve all the laurels and lavish praise for not hesitating in calling a spade a spade! This will certainly now deter all men from ever indulging in sex with a women after giving false promise of marrying her! Each and every Judge not just in India but all over the world must always adhere and abide by what has been laid down by these two learned Judges in this latest, landmark and laudable judgment so that no men ever thinks that he can get away most easily even after openly cheating a women by first promising to marry her and then having sex with her and still worse then dumping her shamelessly like a commodity from his own life without incurring any kind of liability whatsoever!

 

Sanjeev Sirohi,

Supreme Court Designates 37 Lawyers As Senior Advocates

      In a major and significant development, the Supreme Court which is the highest court in India has for the second time designated 37 lawyers as “Senior Advocates”. It goes without saying that it is a big honour for all these 37 lawyers to be designated as “Senior Advocates”. But then they deserve also as they have given their “prime years” in this noble profession of lawyer and that too right in the Apex Court itself and have certainly worked hard relentlessly to achieve it.

So, it goes without saying that they certainly deserve all the “applause and accolades” which they are now getting! We all as citizens of India also ought to know as to who all are these 37 lawyers who have been designated as “Senior Advocates”. They are as follows: –

1.  Madhavi Goradia Divan

2.  R. Balasubramanian

3.  Anitha Shenoy

4.  Aruneshwar Gupta

5.  Jugal Kishore Tikamchand Gilda

6.  Sanjay Parikh

7.  Preetesh Kapur

8.  Ashok Kumar Sharma

9.  Deepak Madhusudan Nargolkar

10.                   Ajit Shankarrao Bhamse

11.                   Nikhil Nayyar

12.                   S. Wasim A. Qadri

13.                   M.G. Ramachandran

14.                   Manish Singhvi

15.                   Gopal Sankaranarayanan

16.                   Mohan Venkatesh Katarki

17.                   Nakul Dewan

18.                   Devadatt Kamat

19.                   Anip Sachthey

20.                   Anupam Lal Das

21.                   G. Venkatesh Rao

22.                   Jayanth Muth Raj

23.                   Arijit Prasad

24.                   Jay Savla

25.                   Aparajita Singh

26.                   Menaka Guruswamy

27.                   Siddhartha Dave

28.                   Siddharth Bhatnagar

29.                   C.N. Sreekumar

30.                   Aishwarya Bhati

31.                   Santosh Paul

32.                   Gaurav Bhatia

33.                   Bharat Sangal

34.                   Vinay Prabhakar Navare

35.                   Manoj Swarup

36.                   Ritin Rai

37.                   Priya Hingorani.

 

Needless to say, this is the second instance of Supreme Court conferring senior designation as per the “Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018”, notified in August 2018. It must be pointed out here that out of these 37 advocates designated as “Senior Advocates”, six are women lawyers who have made a mark for themselves by excelling. They are Aishwarya Bhati, Anitha Shenoy, Madhavi Goradia Divan, Menaka Guruswamy, Priya Hingorani and Aparajita Singh. It would be apt to know in brief about these six women lawyers now designated as “Senior Lawyers”.

To be sure, Madhavi Divan is at present an Additional Solicitor General (ASG) in the Supreme Court. She was appointed ASG on December 17, 2018 and will hold office till June 30, 2020. She obtained her law degree from Pembroke College, Uniersity of Cambridge, UK and began her practice in the Bombay High Court. She has since represented two state governments – that of Gujarat and Madhya Pradesh while also being recognized as an accomplished author. Anitha Shenoy is a 1995 graduate of National Law School of India University, Bangalore and has been the standing counsel for State of Karnataka in the Supreme Court for long.

Furthermore, Menaka Guruswamy is a 1997 graduate of National Law School of India University, Bangalore. She read law as a Rhodes Scholar at Oxford University where she was awarded a Doctor of Philosophy in Law (D. Phil.) and as a Gammon fellow for a Masters in Law at Harvard Law School. She has worked as a human rights consultant to the United Nations and has taught at the New York University School of Law. In the Navtej Johar case which decriminalized homosexuality, she represented IIT students and graduates who belong to the LGBTQIA community. She has also assisted the Supreme Court as amicus curiae in the Manipur Extra-Judicial killings case. She has the rare honour of having her portrait unveiled at Rhodes House in Oxford University. Her name was also included in the Forbes list of 2019 trailblazers which is a great achievement.

Moving on, Aishwarya Bhati is an Advocate-on-Record. In 2017 she was appointed as Additional Advocate General of Uttar Pradesh in Supreme Court. She did not hide her true feelings and termed the “Senior Advocate” designation as a “dream come true” and also acknowledged that she was conscious of the “great responsibility” that comes with the designation.

Going ahead, Priya Hingorani has been in active law practice since 1990 when she was enrolled as an Advocate with the Bar Council of Delhi. Her primary practice has been in the Supreme Court of India and has also appeared in many High Courts. Aparajitha Singh was a junior to “Senior Advocates” Harish Salve and UU Lalit before starting independent practice. She had assisted the Apex Court as amicus curiae to suggest measures for curbing air pollution, which led to the ban of sale of BS III vehicles since April 2017. She was also a part of a Committee which had suggested a common working plan on rehabilitation of destitute widows.

To put things in perspective, it was in September 2018 that the Supreme Court had designated 25 former High Court Judges, who started practice in Supreme Court as senior advocates. It cannot be lost on us that the guidelines are notified pursuant to the Supreme Court judgment in Indira Jaising’s case titled “Ms Indira Jaising v. Supreme Court of India Through Secretary General and others in Writ Petition (C) No. 454 of 2015 which had very clearly prescribed the parameters for designation of advocates as “senior advocates” after senior advocate Ms Indira Jaising who filed the petition pointed out that the present system of designating advocates as “senior advocates” is flawed! This was certainly a major landmark development which shall always be embedded in the golden pages of history and the contribution of Ms. Indira Jaising is certainly historic and remarkable!

What’s more, the guidelines empower a permanent committee called “Committee for Designation of Senior Advocates” to deal with all the matters pertaining to such conferment. This Committee shall comprise of the Chief Justice of India as its Chairperson, along with two seniormost Supreme Court Judges, Attorney General for India and a member of the Bar as nominated by the Chairperson and other members. The Committee is expected to meet at least twice in a calendar year. It will also have a Permanent Secretariat, the composition of which shall be decided by the CJI in consultation with the other members of the Committee.

Be it noted, it would be very significant to now discuss in detail the four point criteria that will play a key role in the assessment of advocates as “Senior Advocates”. Every advocate who aspires to become a “Senior Advocate” must know about this. Even otherwise it would be useful even for those not in this field to know about it so that they understand what it means to be a “Senior Advocate”. The four point criteria for assessment of advocates for senior designation is as follows: –

1.  Number of years of practice of the applicant from the date of enrolment (10 points for 10-20 years of practice, 20 points for practice beyond 20 years) – 20 points

2.  Judgments (reported and unreported), which indicate the legal formulations advanced by the Advocate in the course of proceedings of the case; pro-bono work done by the Advocate; and domain expertise of the Advocate in various branches of law – 40 points

3.  Publications by the Advocate – 15 points

4.  Test of personality and suitability on the basis of interview/interaction – 25 points

Application and eligibility

It would be useful and instructive to mention here that a recommendation in writing can be submitted by the Chief Justice of India or any other Judge of the Supreme Court of India if they are of the opinion that an advocate deserves to be conferred with the designation. An Advocate on Record (AoR) who is seeking to be conferred with the unique distinction as “Senior Advocate” may also submit an application in the prescribed format to the Secretariat. The Secretariat will invite applications from retired Chief Justices or Judges of the High Court and advocates seeking conferment of the distinction every year in the months of January and July. The notice shall be published on the official Supreme Court website, and the information would also be provided to the Supreme Court Bar Association and also to the Supreme Court Advocates-on-Record Association.

As far as eligibility is concerned, it has to be borne in mind that an Advocate shall be eligible for designation as “Senior Advocate” only if he has 10 years combined standing as an advocate or a District Judge, or as a Judicial Member of any Tribunal whose qualification for eligibility isn’t less than that prescribed for a District Judge. It must also be remembered that retired Chief Justices or Judges of the High Courts are also eligible for the distinction of being designated a “Senior Advocate”.

Procedure for designation

It must be reiterated that all the applications and written proposals are to be submitted to the Secretariat which will then compile data on the applicant’s reputation, conduct and integrity, including his participation in pro bono work and the number of judgments in which the advocate appeared during the past five years. The application or the proposal would then be published on the Supreme Court website. The whole point of this exercise would be to invite the suggestions and views of other stakeholders. After the data-base on the Advocate is complied, the Advocate’s case would be put before the Committee for further scrutiny, which will assess the candidates on the basis of four-point criteria which has already been discussed above in great detail.

Simply put, post such overall assessment, the Advocates candidature would then be submitted to the Full Court, which would then vote on the same. It must be noted here that the guidelines however leave no room for doubt by clarifying in no uncertain terms that the cases of retired Chief Justices and Judges of the High Courts will straightaway be sent to the Full Court for its consideration. The Rules also further specify that voting by secret ballot will not normally be resorted to in the Full Court except when “unavoidable”.

While continuing in the same vein, it is then added that the guidelines however do clarify that cases which are rejected by the Full Court can be considered afresh after two years and cases which are deferred can be considered after one year from such deferment. The Rules clarify that if a Senior Advocate is found guilty of conduct, which according to the Full Court disentitles the Senior Advocate to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same. The Full Court should, however, give an opportunity of hearing to the concerned Senior Advocate before any action is taken against them.

Let me say this point blank: Each and every person who is in legal field must know how advocates are designated as “Senior Advocates” in Supreme Court. Not stopping here, it has to be said that even those who are not in legal profession must also know what it takes to become “Senior Advocates”. A humble effort has been made in this direction by me to make my esteemed readers more aware on this front. Hope that they have found it useful!

Sanjeev Sirohi,