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Press Information Bureau https://www.pib.gov.in/PressReleaseDetail.aspx?PRID=1712710. The Ministry of Health and Family Welfare, Government of India, announces a liberalised and accelerated Phase 3 strategy of Covid-19 vaccination from 1 May. The government has been working hard for over a year to ensure that the maximum number of Indians are able to get the vaccine in the shortest possible time. Several important decisions were taken in a meeting chaired by the Prime Minister, making pricing, procurement, eligibility and administration of vaccines flexible in Phase 3 of the world’s largest vaccination drive. All stakeholders are given flexibility to customise to local needs. Everyone above the age of 18 will be eligible to receive the Covid-19 vaccine. Vaccine manufacturers are incentivised to further scale up production and attract new national and international players. Vaccine manufacturers are empowered to release up to 50% of their supply to State Governments and in the open market at a pre‑declared price., In a meeting chaired by Prime Minister Narendra Modi, an important decision to allow vaccination for everyone above the age of 18 from 1 May was taken. The Prime Minister said that the government has been working hard for over a year to ensure that the maximum number of Indians are able to get the vaccine in the shortest possible time. He added that India is vaccinating people at a world‑record pace and will continue this with even greater momentum. India’s National Covid-19 Vaccination Strategy has been built on a systematic and strategic end‑to‑end approach, proactively building capacity across research and development, manufacturing and administration since April 2020. While pushing for scale and speed, it has simultaneously been anchored in the stability necessary to sustainably execute the world’s largest vaccination drive. India’s approach is based on scientific and epidemiological pillars, guided by global best practices, Standard Operating Procedures of the World Health Organization and the National Expert Group on Vaccine Administration for Covid-19., India has been following a dynamic mapping model based on availability of vaccines and coverage of vulnerable priority groups to decide when to open vaccination to other age groups. A substantial coverage of vulnerable groups is expected by 30 April. Phase I of the National Covid-19 Vaccination Strategy was launched on 16 January 2021, prioritising protection for Health Care Workers and Front Line Workers. As systems and processes stabilised, Phase II was initiated on 1 March 2021, focusing on protecting the most vulnerable, i.e., all people above 45 years of age, who account for more than 80% of Covid mortality in the country. The private sector was also roped in to augment capacity., According to the Prime Minister’s directions, the Government of India has proactively engaged and coordinated with stakeholders across the spectrum, from research institutes to national and international manufacturers and global regulators. The strength of India’s private‑sector vaccine manufacturing capability has been strategically empowered through unprecedented decisive steps, including facilitating public‑private collaborative research, trials and product development, targeted public grants and far‑reaching governance reforms in India’s regulatory system. Inter‑ministerial teams have been sent on site to understand each manufacturer’s requirements and provide proactive and customised support in the form of grants, advance payments and additional production sites. This has resulted in Emergency Use Authorization being granted to two indigenously manufactured vaccines (Serum Institute of India and Bharat Biotech) and a third vaccine (Sputnik) that, while presently manufactured abroad, will eventually be manufactured in India., In Phase III, the National Vaccine Strategy aims at liberalised vaccine pricing and scaling up of vaccine coverage. This will augment vaccine production as well as availability, incentivising manufacturers to rapidly ramp up production and attract new domestic and international manufacturers. Pricing, procurement, eligibility and administration of vaccines will be open and flexible, allowing all stakeholders the flexibility to customise to local needs and dynamics., Vaccine manufacturers will supply 50% of their monthly Central Drugs Laboratory released doses to the Government of India and will be free to supply the remaining 50% to State Governments and in the open market. Manufacturers will transparently declare an advance price for the 50% supply that will be available to State Governments and the open market before 1 May 2021, enabling State governments, private hospitals and industrial establishments to procure vaccine doses. Private hospitals will procure their supplies of Covid‑19 vaccine exclusively from the 50% supply earmarked for the non‑government channel, and private vaccination providers shall transparently declare their self‑set vaccination price. Eligibility through this channel will be opened to all adults, i.e., everyone above the age of 18. Vaccination will continue as before in Government of India vaccination centres, provided free of cost to the eligible population defined earlier, i.e., Health Care Workers, Front Line Workers and all people above 45 years of age. All vaccination, whether through Government of India centres or the non‑government channel, will be part of the National Vaccination Programme, and will be mandated to follow all protocols such as being captured on the CoWIN platform, linked to Adverse Event Following Immunization reporting and all other prescribed norms, with stocks and price per vaccination reported in real time. The division of vaccine supply, 50% to the Government of India and 50% to the non‑government channel, will apply uniformly across all vaccines manufactured in the country, while imported fully ready‑to‑use vaccines will be entirely utilised in the non‑government channel. The Government of India will allocate vaccines to States and Union Territories from its share based on the extent of infection (number of active Covid cases) and performance (speed of administration), with wastage also considered. Based on these criteria, state‑wise quotas will be decided and communicated in advance. The second dose for all existing priority groups, i.e., Health Care Workers, Front Line Workers and population above 45 years, wherever due, will be given priority through a specific and focused strategy communicated to all stakeholders. This policy will come into effect from 1 May 2021 and will be reviewed from time to time.
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Petitioner: Sanskriti Ranjan. Respondent: Joint Seat Allocation Authority Through Organization Chairman JEE and Others. Counsel for Petitioner: In Person Honourable Dinesh Kumar Singh, J., Petitioner, Ms. Sanskriti Ranjan, appears in person., Mr. Sarvesh Kumar Dubey, Advocate has volunteered to assist the petitioner in the petition., Let this matter be put up at 2.15 p.m. today., In the meantime, Mr. Dubey will inform Mr. S.B. Pandey, learned Assistant Solicitor General of India, to remain present at 2.15 p.m. before the Supreme Court of India., In compliance of the order passed before lunch, Mr. S.B. Pandey, learned Assistant Solicitor General of India assisted by Mr. Mukund Madhav Asthana has put in appearance on behalf of Union of India, Ministry of Education (Department of Technical Education)., The facts of the case are extraordinary and peculiar in the sense that the petitioner belongs to a Scheduled Caste community. She is a bright student. The petitioner secured 95.6 percent marks in the 10th and 94 percent marks in the 12th. She appeared in the Joint Entrance Examination for selection in the Indian Institutes of Technology. The petitioner was successful in clearing the exam. She secured 92.77 percentile marks in Joint Entrance Examination Mains and obtained a rank of 2062 as a Scheduled Caste category candidate. Thereafter, the petitioner applied for Joint Entrance Examination Advanced on 16 September 2021 and cleared Joint Entrance Examination Advanced on 15 October 2021 with a rank of 1469 in the Scheduled Caste category., The petitioner was allotted a seat at Indian Institute of Technology (Banaras Hindu University) Varanasi for Mathematics and Computing (5 years, Bachelor and Master of Technology Dual Degree) in the counseling. However, the petitioner could not arrange a meager amount of Rs 15,000, the fee to be paid before the scheduled date., Mr. Sarvesh Kumar Dubey and Ms. Samta Rao, learned counsels have voluntarily agreed to assist the Supreme Court of India in the case. The petitioner has not been able to pay the amount of Rs 15,000 for seat acceptance as her father has been diagnosed with chronic kidney disease and has been advised for kidney transplant. The father has to undergo dialysis twice a week to survive. Due to the ill health of the petitioner’s father and financial crisis created by medical expenses and Covid-19, the petitioner could not arrange Rs 15,000 fee for allotment of seat at Indian Institute of Technology, Banaras Hindu University. The petitioner and her father have written many times to the Joint Seat Allocation Authority for extension of time indicating precarious condition for which she could not deposit the fee but no reply has come from the Joint Seat Allocation Authority., Mr. Sarvesh Kumar Dubey and Ms. Samta Rao, learned counsels who are assisting the petitioner on the Supreme Court of India’s request have brought to the notice of the Supreme Court of India an interim order dated 22 November 2021 passed by the Supreme Court of India in Civil Appeal No. 6983 of 2021: Prince Jaibir Singh versus Union of India and Others. In that case, a candidate named Prince Jaibir Singh, a Dalit student, could not deposit the fee for seat allocation before the last date, and the Supreme Court, considering the career prospect of the young Dalit student who was on the verge of losing a valuable seat allotted to him in Indian Institute of Technology Bombay, directed that the candidate be admitted in Indian Institute of Technology Bombay by creating a supernumerary seat., The aforesaid order was passed under Article 142 of the Constitution of India but considering the facts of the present case, where a young bright Dalit girl student has come before the Supreme Court of India seeking equitable jurisdiction to enable her to pursue her dream of admission in the Indian Institute of Technology, this Court on its own has volunteered to contribute Rs 15,000, the fee for allocation of the seat. The amount has been handed over to the petitioner after court hours today itself., In view of the aforesaid, as an interim measure, the Joint Seat Allocation Authority and Indian Institute of Technology Banaras Hindu University are directed to admit the petitioner in Mathematics and Computing (5 years, Bachelor and Master of Technology Dual Degree). If there is no seat vacant in the said discipline, Indian Institute of Technology Banaras Hindu University is directed to create a supernumerary post, which shall be subject to the admission of the petitioner being regularized in the event of any seat falling vacant in future as a result of exigency which may arise in the course of admission process. If no seat falls vacant, the petitioner shall continue her studies for Mathematics and Computing (5 years, Bachelor and Master of Technology Dual Degree) course against a supernumerary seat., The petitioner shall report at Indian Institute of Technology Banaras Hindu University within a period of three days from today with relevant papers and fee for getting herself admitted for Mathematics and Computing (5 years, Bachelor and Master of Technology Dual Degree)., Mr. Sarvesh Kumar Dubey and Ms. Samta Rao, learned counsels have prepared an application for impleadment of necessary parties. Let that application be filed in the Registry., List this petition along with the application in the next week., The petitioner is at liberty to file a self-attested computer generated copy of this order downloaded from the official website of the Supreme Court of India for necessary compliance.
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Reserved on: 05.01.2024 Pronounced on: 08.01.2024 The petitioner is before the High Court of India calling in question a Notification dated 15-04-2021 issued by Government of India which imposes quality control on import of plastic into the shores of the nation to become effective from 05-01-2024., Shorn of unnecessary details, facts in brief, are as follows: The petitioner is said to be an Association of Manufacturers and suppliers of high density polyethylene, low density polyethylene and other allied products. It is the case of the petitioner that high density polyethylene is a plastic polymer which is commonly used by a variety of consumers including industrial units. It is more resistant to cracking and less likely to suffer from stress‑induced failure. Low density polyethylene is widely used in packaging such as foils, trays and plastic bags for both food and non‑food purposes. The petitioner and its members were importing raw material required for manufacture and supply of high density polyethylene and low density polyethylene products and, after such import, were supplying finished goods all over the country, not restricted to domestic consumption but also exporting, and claim to be contributing to the economy of the country. It is averred that the industries coming under the Association are feeding over 25 lakh families as they have employed that many persons in their respective industries., The third respondent Department of Chemicals and Petro‑Chemicals of the Union of India issued a quality control order on 15‑04‑2021 seeking to impose certain restrictions on low density polyethylene, linear low density polyethylene and high density polyethylene. The quality control required that the aforesaid polyethylenes should conform to the corresponding Indian standard and shall bear the standard mark under a licence from the Bureau of Indian Standards as per Schedule I and Schedule II of the Bureau of Indian Standards (Conformity Assessment) Regulations, 2018. The petitioner claims that imposition of such a clause on the supply of raw material will restrict free movement and sale of the said raw materials and would create a monopoly in the hands of a few in the industry. It is, therefore, the Association submitted certain representations to respondents 2 and 3 to have a look at the conditions imposed in the quality control order insofar as it necessitates the quality to pass through the Bureau of Indian Standards with the seal of the Bureau of Indian Standards. That is not acceded to. On 26‑09‑2023 the third respondent issued another notification directing that the earlier notification which imposed quality standard would be coming into effect on 05‑01‑2024. It is, therefore, the petitioner claiming to be aggrieved by the imposition of conditions for import of plastic is before the High Court of India in the subject petition., Heard Sri N. Raghavendra Rao, learned counsel appearing for the petitioner and Sri H. Shanthi Bhushan, learned Deputy Solicitor General of India appearing for the respondents., The learned counsel appearing for the petitioner would vehemently contend that the notification is aimed at one single purpose, to help Reliance Industries, as according to the petitioner Reliance Industries has a monopoly in the manufacture of linear and a particular ingredient granule that is necessary for production of plastic. It is his contention that there is no other player in the market and all the plastic manufacturers have to line up to Reliance Industries only. The learned counsel would further contend that there is no nexus with the production of plastic for imposition of the aforesaid conditions; such conditions are imposed on raw material. But such conditions ought to have been imposed on a finished product and not on raw material. It is his submission that if on finished product quality control is imposed, it would be in tune with law and not the raw material imported as is done in the case at hand. He would take this Court through a communication from the Under Secretary in the Department of Commerce to the third respondent directing that the Government itself is in doubt about its implementation and, therefore, it should not be given effect to by an order of the Court. He would seek quashment of the notification, which brings in such quality standards., On the other hand, the learned Deputy Solicitor General of India Sri H. Shanthi Bhushan, appearing along with Mr. Sadana Desai, has on war footing secured complete instructions and would contend that members of the petitioner Association are not wanting to bring in quality into the country. If any interference is shown, it would lead to cheap raw material being imported, as was done earlier, which would lead to several hazardous issues including environmental. What the Government of India has done is to bring in certain quality measures by way of a policy decision. He would submit that the High Court of India would not interfere with a policy decision, particularly an economic policy or a policy to regulate quality, in exercise of its jurisdiction under Article 226 of the Constitution of India. He would, in reply to the allegation that there is only one player in the market, contend that it is a false submission that there is one player in the market. He would place on record that there are about 50 players in the market including the ones that are outside the country and, insofar as granules are concerned, there are 12 players in the market and not only Reliance Industries. He would, therefore, seek dismissal of the petition., I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record., The aforesaid facts, though not in dispute, would require little elaboration. The status of the petitioner is not in dispute, that it is an Association of manufacturers and suppliers of high density polyethylene, low density polyethylene and linear low density polyethylene products. These products are used to make plastic material and they are commonly known as plastic polymer in various consumer and industrial products. They are two types: a low density polyethylene which has low resistance to cracking and would suffer from stress‑induced failure and the other being a high density polyethylene which is more resistant to cracking and less likely to suffer stress‑induced failure, used in a variety of packaging material, containers and pipes of good strength. High density polyethylene is also resistant to fatigue and has a low coefficient of friction. Therefore, the entire issue is with regard to raw material in the name of high density polyethylene; linear low density polyethylene or low density polyethylene being used in the plastic industry., The plastic which is commonly used in packaging was imported as a mode of packaging in 1940. It was polymerised from ethylene which was different from what it is today. Then emerged a low density polyethylene with low cost to make many flexible packaging applications. Low density polyethylene became popular as it was flexible, odorless, transparent with 100 % recyclable thermoplastic polymer. This became a part of human life as it was being packaged in grocery shops and all other walks of day‑to‑day human life. The members of the petitioner are procurers of raw material both within and outside the shores of the nation having supply chain of manufacture and distribution. The Government of India, faced with several problems surrounded with usage of plastic, thought it fit to impose certain conditions concerning its quality., Bureau of Indian Standards Act, 2016 was promulgated to provide for establishment of a National Standards Body for the harmonious development of the activities of standardisation, conformity assessment and quality assurance of goods, articles, processes, systems and services and matters connected therewith or incidental thereto. Therefore, in exercise of powers conferred under the Bureau of Indian Standards Act, 2016, the Government issued a notification on 15‑04‑2021 bringing in Polyethylene Material for Moulding and Extrusion (Quality Control) Order, 2021. The notification reads as follows: New Delhi, the 15th April, 2021 S.O. 1625(E). In exercise of the powers conferred by section 16 of the Bureau of Indian Standards Act, 2016, the Central Government, being of the opinion that it is necessary or expedient so to do in the public interest after consultation with the Bureau of Indian Standards, hereby makes the following order, namely: 1. Short title, commencement and application. (1) This order may be called the Polyethylene Material for Moulding and Extrusion (Quality Control) Order, 2021. (2) It shall come into force on the expiry of one hundred and eighty days from the date of its publication in the Official Gazette. (3) It shall apply to goods or articles specified in column (1) of the Table below, but shall not apply to such goods or articles meant for export. 2. Conformity to standards and compulsory use of Standard Mark. Goods or articles specified in column (1) of the Table below shall conform to the corresponding Indian Standard given in column (2) of the said Table and shall bear the Standard Mark under a licence from the Bureau of Indian Standards as per Scheme‑I of Schedule‑II of the Bureau of Indian Standards (Conformity Assessment) Regulations, 2018. 3. Certification and enforcement authority. The Bureau of Indian Standards shall be the certifying and enforcing authority in respect of the goods or articles specified in column (1) of the Table. 4. Penalty for contravention. Any person who contravenes the provisions of this order shall be punishable under the provisions of the said Act. Goods or article Indian Standard Title for Indian Standard Polyethylene Material for moulding and extrusion (i) Low Density Polyethylene (ii) Linear Low‑Density Polyethylene (LLDPE) (iii) High Density Polyethylene (HDPE) IS 7328:2020 Specification of Polyethylene Material for Moulding and Extrusion., This again was superseded in the year 2022. The conformity to standards and compulsory use of standard mark from Bureau of Indian Standards was brought in. The notification reads as follows: New Delhi, the 5th April, 2022 S.O. 1647(E). In exercise of the powers conferred by section 16 of the Bureau of Indian Standards Act, 2016, and in supersession of the Polyethylene Material for Moulding and Extrusion (Quality Control) Order, 2021, the Central Government, after consulting the Bureau of Indian Standards, is of the opinion that it is necessary or expedient so to do in the public interest, hereby makes the following Order, namely: 1. Short title, commencement and application. (1) This order may be called the Polyethylene Material for Moulding and Extrusion (Quality Control) Order, 2022. (2) It shall come into force on the 3rd October. (3) It shall apply to goods or article specified in column (1) of the Table below and shall not apply to such goods or article meant for export. 2. Conformity to standards and compulsory use of Standard Mark. Goods or article specified in column (1) of the Table below shall conform to the corresponding Indian Standard given in column (2) of the said Table and shall bear the Standard Mark under a licence from the Bureau of Indian Standards as per Scheme‑I of Schedule‑II of the Bureau of Indian Standards (Conformity Assessment) Regulations, 2018. 3. Certification and enforcement authority. In respect of the goods or article specified in column (1) of the said Table, the Bureau of Indian Standards shall be the certifying and enforcing authority. 4. Penalty for contravention. Any person who contravenes the provisions of this Order shall be punishable under the provisions of the said Act. Goods or article Indian Standard Title for Indian Standard Polyethylene Material for moulding and extrusion (i) Low Density Polyethylene (ii) Linear Low‑Density Polyethylene (LLDPE) (iii) High Density Polyethylene (HDPE) IS 7328:2020 Specification of Polyethylene Material for Moulding and Extrusion., Several notifications come to be issued depicting the date on which every notification earlier issued would come into force. A notification issued on 26‑09‑2023 reads as follows: New Delhi, the 26th September, 2023 S.O. 4233(E). In exercise of the powers conferred by section 16 and sub‑section (3) of section 25 of the Bureau of Indian Standards Act, 2016, the Central Government, after consulting the Bureau of Indian Standards, is of the opinion that it is necessary so to do in the public interest, hereby makes the following order further to amend the Polyethylene Material for Moulding and Extrusion (Quality Control) Order 2022, namely: 1. Short title and commencement. (1) This Order may be called the Polyethylene Material for Moulding and Extrusion (Quality Control) Order 2023. (2) It shall come into force on the date of its publication in the Official Gazette. 2. In the Polyethylene Material for Moulding and Extrusion (Quality Control) Order, 2022 in paragraph 1, sub‑paragraph (2), the following sub‑paragraph shall be substituted, namely: (2) It shall come into force on the 5th day of January, 2024. The aforesaid notification directs that the quality control orders issued from time to time, with particular reference to the 2022 order, would come into effect from 05‑01‑2024. The coming into effect on 05‑01‑2024 has driven the petitioner to the High Court of India in the subject petition. The submission that there is no nexus with the production sought to be achieved by imposing quality standard on a raw material is noted only to be rejected as, to say the least, is preposterous. If quality is not in the raw material, it is understandable how it can be found in a finished product. If raw material lacks quality it is trite that the finished product would be sub‑standard. Therefore, the said submission is without countenance, as it is fundamentally flawed., The learned counsel for the petitioner places heavy reliance upon a communication dated 14‑03‑2023. It reads as follows: Dated: 14th March, 2023. Sub: DOCOM/E/2023/0000465 dated 25‑02‑2023 filed by Shri Naresh Bhandla, Karnataka received in EP (CAP) Division on 27‑02‑2023. The undersigned is directed to refer to the subject mentioned above and to forward herewith grievance petition filed by Shri Naresh Bhandla, All India HDPE/PP Woven Fabric Manufacturers Association referring to Notification No. CG‑DL‑E16042021‑226663 dated 15th April 2021 Imposing Bureau of Indian Standards Standards & Markings on the imported Polyethylene Materials for Moulding and Extrusion. 2. The members of the Association are MSME manufacturers of different kinds of HDPE/PP woven fabrics and sacks used as packing material by industries all over India and exported across the world. It has been mentioned by the complainant that all the Indian manufacturers of HDPE/PP/LDPE/LLDPE granules keep the local selling prices much above the ruling international prices of the same items. With every change in price, all the manufacturers revise the prices in tandem. Further, it has been stated that all the domestic petrochemical producers have formed an informal cartel to keep the prices far above the international rates and are now trying to curb import of more competitively priced materials from other countries by creating hurdles that discourage sale of these products to Indian customers. Imposition of the Bureau of Indian Standards licensing and marking is another step in this direction. 3. All India HDPE/PP Woven Fabric Manufacturers Association has requested that if the domestic industry can get raw material at internationally competitive prices, the domestic industry can become efficient in the international arena and start exporting Indian products worldwide. 4. Plastic Export Promotion Council, an EPC mandated with export promotion of plastic products, is of the view that Bureau of Indian Standards standard on import of polymers has serious ramifications. Domestic processing industry will become non‑competitive as India is not yet self‑reliant in polymers and imports of polymers is inevitable. Such type of imposition of Non‑Tariff Barrier will increase the price of polymers for Indian importers making domestic plastic processors non‑competitive. It will make it difficult for MSME polymer processors to compete with imports of cheap finished articles of plastics which will not be governed under any Quality Control order and, since they will be substantially cheaper in price, will garner a large market share of India. Further, to produce finished goods, several additives are added with polymers. So imposition of mandatory Bureau of Indian Standards on polymers cannot ensure a good quality finished product at the hands of the consumer. Plexconcil is also of the opinion that mandatory imposition of Bureau of Indian Standards on import of polymers should not be imposed. 5. DCPC being the nodal department is requested to examine the said grievance and take appropriate action at their end for disposal of the said grievance., The learned counsel for the petitioner, taking cue from the aforesaid communication, seeks to project that it is the opinion of the Government of India that implementation of the project should not be done and therefore, the High Court of India should interfere based on the said communication. The submission is unacceptable, as it is not word‑perfect. A perusal of the communication would indicate that it is not the opinion of the Government of India, but a narration of two factors: the grievances projected by the petitioner Association or its members and the opinion of the Plastics Export Promotion Council. The aforesaid can by no means be construed to be the opinion of the Government of India. Therefore, heavy reliance placed upon the said communication turns so light that it flies off and would not render any assistance to the contention of the petitioner., The other submission is that the notification leads to monopolisation in the hands of a dominant manufacturer in polymer, the Reliance group. Though the High Court of India would not consider the said submission unless there is adequate evidence of such cartelisation, which is not placed before the Court by the petitioner, the learned Deputy Solicitor General of India has placed a chart of 50 manufacturers in the same industry, which includes manufacturers in India and abroad and 12 manufacturers of raw material. Reliance is not the only one but five among the 12. The chart of manufacturers reads as follows: 1. Brahmaputra Cracker and Polymers Limited, Dibrugarh 2. Bihani Manufacturing Co. (P) Ltd., Alwar 3. Hyundai Engineering Plastics India Pvt. Ltd., Tirupati 4. Indian Oil Corporation Limited, Panipat 5. Haldia Petrochemicals Limited, Purba Medinipur 6. Reliance Industries Limited, Raigarh 7. Reliance Industries Limited, Jamnagar 8. Reliance Industries Limited, Bharuch 9. Reliance Industries Limited, Surat 10. ONGC Petroadditions Ltd., Bharuch 11. GAIL (India) Limited, Auraiya 12. Reliance Industries Limited, Vadodara. Therefore, the contention that it would lead to cartelisation or monopoly by one industry is farther from truth., The notification impugned seeks to achieve a seal of the Bureau of Indian Standards in every raw material that is brought in, to the manufacture of a final product. The Bureau of Indian Standards, as observed hereinabove, is a national standards body which permits the development, standardisation and quality certification of goods and the certification will be through the Bureau of Indian Standards mark. If this is sought to be achieved by the Union of India through the notification as a policy decision, this Court exercising its jurisdiction under Article 226 of the Constitution of India would be loath to interfere with such a policy decision of the Government, particularly of economic and quality standards. This Court does not sit over the decision of the Government of India to assess the quality and direct that such steps should not be taken., It is trite law that policies which are in the realm of regulatory, economic and quality when questioned before the Court seeking judicial review, the Court exercising its jurisdiction under Article 226 of the Constitution would not interfere by sitting in the arm‑chair of experts, as the authority, statutory or otherwise, is entitled to choose the course of action that it thinks fit or necessary and expedient in public interest. The Courts have always exercised judicial restraint and circumspection over the wisdom of policies of the Government or statutory authorities, save in certain circumstances, where the policy is palpably or demonstrably in violation of the tenets of Article 14 of the Constitution of India. This is the only parameter that would permit the constitutional Courts to tinker with any policy, more particularly a policy of the kind that is impugned in the case at hand., Reference being made to the judgment of Justice Frankfurter of the United States Supreme Court in the case of Trop v. Dulles becomes apposite. The learned Judge, in his dissenting opinion, has observed as follows: 57. All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self‑restraint. 58. Rigorous observance of the difference between limits of power and wide exercise of power – between questions of authority and questions of prudence – requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self‑restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive Branch do., In yet another view Lord Justice Lawton in LakER Airways v. ... In the United Kingdom aviation policy is determined by ministers within the legal framework set out by Parliament. Judges have nothing to do with either policy‑making or the carrying out of policy. Their function is to decide whether a minister has acted within the powers given to him by statute or the common law. If he is declared by a Court, after due process of law, to have acted outside his powers, he must stop doing what he has done until such time as Parliament gives him the powers he wants. In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play., The aforesaid judgments are relied on in plethora of cases by the Apex Court when faced with identical circumstances of judicial review of a policy, be it administrative, economic or pricing. A three‑Judge Bench of the Apex Court in the case of Rajeev follows: 188. We may usefully borrow the dictum of Frankfurter, J. in Morey v. Doud, noted with approval by this Court in R.K. Garg, that the Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events, self‑limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. In Premium Granites, even this Court restated that it is not the domain of the Courts to embark upon unchartered ocean of public policy in an exercise to consider whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities, as the case may be. The Court may interfere only when the case involves infringement of fundamental rights guaranteed by the Constitution or any other statutory right., 202. A priori, the prescription of procedure to be deployed by the administration in taking their decisions in the ordinary course of their business is not for the Court to decide. More particularly, in cases where decisions are taken in tune with a duly enacted statutory scheme, it is not open to a court of law to disregard the same on the specious reasoning that the governing statutory scheme is deficient for the nature or significance of the project. Even if a Court finds it debatable, that can be no ground for the Court to quash an action taken strictly in accord with the prescribed procedure. 203. A policy decision goes through multiple stages and factors in diverse indicators including socio‑economic and political justice, before its final culmination. As per the nature of the project, the Government executes the project by taking certain steps legislative, administrative, etc. and it is this which comes under the radar of the Court. The increasing transparency in Government functioning by means of traditional and modern media is reducing the gap between citizens and Government and Government actions are met with a higher level of scrutiny on a real‑time basis. 204. In a democracy, the electors repose their faith in the elected Government which is accountable to the legislature and expect it to adopt the best possible course of action in public interest. Thus, an elected Government is the repository of public faith in matters of development. Some section of the public may have another viewpoint or complete disagreement with the course of action perceived by the elected Government, but then, the dispensation of judicial review cannot be resorted to by the aggrieved section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government. Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option in the perception of the aggrieved section of public would have been a better option., 205. As noted earlier, the Courts do not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such. In Natural Resources Allocation, this Court noted that Government decisions concerning public resources have an intricate economic value attached with them and to elevate the standard of review on the basis of a subjective understanding of the subject‑matter would be dehors the review jurisdiction., 206. In Narmada Bachao Andolan v. Union of India, this Court observed that: (SCC p. 762, para 229) 229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed are part of policy‑making process and the courts are ill‑equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a public interest litigation does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.
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The Government may examine advantages or disadvantages of a policy at its own end; it may or may not achieve the desired objective. The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process. It is not the Supreme Court of India's concern to enquire into the priorities of an elected Government. Judicial review is never meant to venture into the mind of the Government and thereby examine the validity of a decision., In Shimnit Utsch India (P) Ltd. v. West Bengal Transport Infrastructure Development Corporation Ltd., (2010) 6 Supreme Court Cases 303, the Supreme Court of India, in paragraph 52, observed: The courts have repeatedly held that a government policy can be changed with changing circumstances and only on the ground of change such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice., In State of Madhya Pradesh v. Narmada Bachao Andolan, (2011) 7 Supreme Court Cases 639, paragraphs 36‑37, the Supreme Court of India dealt with the issue of rehabilitation of persons displaced due to the construction of a dam. It observed that the Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer, more scientific, logical or wiser. The wisdom and advisability of policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or are arbitrary, irrational or an abuse of power. The Court cited Ram Singh Vijay Pal Singh v. State of Uttar Pradesh, (2007) 6 Supreme Court Cases 44; Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 Supreme Court Cases 561; and State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 Supreme Court Cases 46., The Court noted that whenever the issues brought before it are intertwined with those involving determination of policy and a plethora of technical issues, the Courts are very wary and must exercise restraint and not trespass into policy‑making., In Narmada Bachao Andolan v. Union of India, (2000) 10 Supreme Court Cases 664, paragraph 228, the Supreme Court of India noted that a project may be executed departmentally or by an outside agency as per the choice of the Government, whilst ensuring that it is done according to some procedure or set manner. Further, the Court should be loath to assume that the authorities will not function properly and that the Court should have no role to play., In Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 Supreme Court Cases 737, paragraph 16, the Supreme Court of India held that the scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy on the ground that it is erroneous or that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review, as held in Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) Supreme Court Cases 364; Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 Supreme Court Cases 223; Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 Supreme Court Cases 304; BALCO Employees' Union v. Union of India, (2002) 2 Supreme Court Cases 333; State of Odisha v. Gopinath Dash, (2005) 13 Supreme Court Cases 495; and Akhil Bharat Goseva Sangh (3) v. State of Andhra Pradesh., The Court, exercising its jurisdiction under Article 226 of the Constitution of India, would not tinker with a notification that seeks to bring quality usage by necessitating a seal of the Bureau of Indian Standards at the raw material stage. The submission made to the contrary by the learned counsel for the petitioner is without merit. Even the communication by the Plastics Export Promotion Council to the third respondent would not be of any avail, as it is not the opinion of the Government; the Council is created to promote plastic export in the nation. Therefore, if quality is ensured from the raw material stage through to the finished product under the Make in India programme, the country will be able to compete with others. A step towards that will not be interfered with by this Court unless the step depicts palpable and demonstrable arbitrariness, which is neither pleaded nor present. The submissions of cartelisation and nexus are untenable. Quality control in plastic manufacturing refers to monitoring and inspecting various stages of the manufacturing process to ensure that the final plastic products meet certain standards of quality. Consequently, bringing every raw material under the Bureau of Indian Standards aims to make the final plastic product non‑hazardous to the environment, safe for public use, and compliant with health and safety standards, including food contact regulations, as plastics are widely used in everyday life. If the product under the Make in India programme is exported under the tag Made in India, quality insistence from the threshold will ensure that the final product meets all necessary global standards., For the aforesaid reasons, finding no merit in the petition, the petition stands rejected.
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Writ petitions Nos. 21468/2016, 23622/2016, 16222/2017, 19386/2016, 16223/2017, 16697/2017, 16703/2017, 16862/2017, 28341/2017, 108010/2017, 108689/2017, 108690/2017, 22851/2018, 9147/2019 and 18042/2019 are filed in public interest or by individual persons in their personal interest. The facts of each writ petition are considered in seriatim., Writ Petition No. 21468/2016 (Public Interest Litigation) was filed by the Advocates Association, Bengaluru, seeking a writ of certiorari to quash the notifications dated 19 March 2016 vide Annexures F, G, H and J. By Annexure F, the Government of Karnataka authorized all Deputy Superintendents of Police of the Anti Corruption Bureau (ACB) for investigation in accordance with Section 17 of the Prevention of Corruption Act. By Annexure G, the Government superseded Notification No. HD 286 PEG 90 dated 6 February 1991 with immediate effect, thereby removing the power of the Police Wing of the Karnataka Lokayukta to investigate offences under the Prevention of Corruption Act. By Annexure H, the Government, exercising powers under Clause (s) of Section 2 of the Code of Criminal Procedure, declared the office of the Additional Director General of Police, Anti Corruption Bureau, Bengaluru, as a police station having jurisdiction for the whole of the State of Karnataka. By Annexure J, the Government superseded Notifications No. HD 292 PEG 2000 dated 8 May 2002 and HD 324 PEG 2002 dated 5 December 2002, removing the status of the office of the Additional Director General of Police, Lokayukta as a police station., The petitioner asserts that the Advocates Association is registered under the Karnataka Cooperative Societies Act to serve the needs of the advocates fraternity, with office bearers elected by enrolled practising lawyers. The Association is actively concerned with the problems of the common man and has voiced these concerns in various forums. Prior to the Karnataka Lokayukta Act, 1984 (KL Act), a Vigilance Commission existed to address grievances of the people. The State Legislature enacted the KL Act to provide a self‑contained mechanism for effective redressal of grievances and to replace the erstwhile Vigilance Commission., Section 3 of the KL Act regulates the appointment of the Lokayukta and Upa‑Lokayukta. A person appointed as Lokayukta must have held office as a Judge of the Supreme Court, the Chief Justice of a High Court, or a Judge of a High Court for not less than ten years. A person appointed as Upa‑Lokayukta must have held office as a Judge of a High Court for not less than five years. The Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and Employees) Rules, 1988 provide for the strength and composition of the staff, dividing it into four wings: Administrative and Enquiry Wing, Technical Wing, Police Wing and General Wing., By a notification dated 6 February 1991, the Police Inspectors of the Karnataka Lokayukta were authorized with investigative powers under Section 17 of the Prevention of Corruption Act. Subsequently, by a notification dated 2 November 1992, the State Government, exercising the power conferred by the first proviso to Section 17 of the Prevention of Corruption Act, authorized all Inspectors of Police, Office of the Karnataka Lokayukta, subject to overall control and supervision by the Lokayukta or Upa‑Lokayukta as the case may be., The Honorable Supreme Court of India, in C. Rangaswamaiah and others v. Karnataka Lokayukta and others (21 July 1998), held that police officers on the rolls of the Karnataka Lokayukta work under the supervision and control of the Lokayukta and Upa‑Lokayukta. The Court emphasized that the legislative intent was to ensure that public servants covered by the KL Act are answerable to the Lokayukta and Upa‑Lokayukta, and that these statutory authorities must be empowered with appropriate powers so that their orders are fully implementable and not mere paper directions., The Karnataka Lokayukta Act was amended by Karnataka Act No. 35 of 2015, introducing mechanisms to regulate the appointment and removal of the Lokayukta and Upa‑Lokayukta. The amendment received the assent of the Governor on 19 August 2015. The amendment aimed to enhance accountability and public confidence in the institution., The learned Single Judge of the High Court of Karnataka, in Criminal Petition No. 2653/2015, issued directions to the State to strengthen the office of the Lokayukta, appoint capable officers, remove officers who have served beyond the prescribed period, appoint public prosecutors to ensure speedy trial, fill vacancies within a time‑bound period, and prepare and circulate a Lokayukta manual. The State, by affidavit, affirmed its endeavour to strengthen the Lokayukta and make it more accountable to the public., On 14 March 2016, the State Government created the Anti Corruption Bureau in Karnataka by Government Order and issued notifications on 19 March 2016 authorising all Deputy Superintendents of Police to investigate in accordance with Section 17 of the Prevention of Corruption Act. The petitioner contends that this notification seeks to defunct the Lokayukta, creating a parallel body that defeats the purpose of the Lokayukta and is unsustainable, malafide and legally infirm. The impugned executive order indirectly dilutes the powers of the Lokayukta, making the ACB neither a parallel nor an alternate body, and therefore the notification is impermissible in law., Writ Petition No. 19386/2016 (Public Interest Litigation) was filed by Mr. Chidananda Urs, a practising advocate of more than fifteen years, seeking a writ of certiorari to quash the Government Order dated 14 March 2016 constituting the ACB and the subsequent supporting notifications dated 19 March 2016. The petitioner, also a Chartered Accountant and author of a commentary on the Foreign Exchange Management Act and Money Laundering Law, alleges that the impugned notifications have led to the closure of the Police Wing attached to the Karnataka Lokayukta, which was created under the KL Act to investigate corruption, favouritism and official indiscipline., The petitioner points out that the Police Wing of the Karnataka Lokayukta performed a dual role under both the KL Act and the Prevention of Corruption Act, enjoying the confidence of the common man, especially after investigations into mining scams. The abrupt creation of the ACB is alleged to have been intended to take control of pending investigations against high‑functioning officials, resulting in waste of public money and time and potentially deleterious consequences., By the notification dated 6 February 1991, Police Inspectors were deputed to the Karnataka Lokayukta and empowered under Section 17 of the Prevention of Corruption Act to investigate offences. The subsequent notification dated 2 November 1992 authorized all such Inspectors, placing them under the administrative and supervisory control of the Lokayukta or Upa‑Lokayukta, thereby removing bureaucratic and political interference in corruption investigations., The Honorable Supreme Court of India, in C. Rangaswamaiah (21 July 1998), reiterated that police officers deputed to the Karnataka Lokayukta work under the supervision of the Lokayukta and Upa‑Lokayukta, and that both the KL Act and the Prevention of Corruption Act share the common objective of a corruption‑free society. The Court observed that the authorities must be armed with appropriate powers so that their orders are not mere paper directions., Various reformative measures were taken in compliance with the directions of Criminal Petition No. 2653/2015. During this period, complaints were reported against the incumbent Chief Minister concerning corrupt practices in land de‑notification, and a disproportionate assets case was registered against a senior IAS officer. Investigations against certain MLAs and bureaucrats were also pending. The petitioner alleges that the notification dated 14 March 2016, constituting the ACB, was intended to protect political and bureaucratic classes by undermining the Lokayukta’s investigative powers., According to the Code of Criminal Procedure, the complainant should not act as the investigating officer. The petitioner contends that the notification requiring the Chief Minister to oversee investigations into complaints against the Chief Minister or other ministers contravenes this principle and is opposed to the dictum of the Honorable Supreme Court of India in C. Rangaswamaiah., Writ Petition No. 23622/2016 (Public Interest Litigation) was filed by Samaj Parivarthana Samudaya, represented by its founder President Sri S.R. Hiremath, seeking a writ of certiorari to quash the Government Order dated 14 March 2016 and the subsequent supporting notifications dated 19 March 2016. The petitioner is a voluntary organization working in Karnataka since 1984, engaged in social transformation, protection of natural resources and anti‑corruption activities, and has filed several successful public interest litigations before the Supreme Court of India and the High Court of Karnataka., The petitioner explains that prior to 1984 the Vigilance Commission existed, and the Karnataka Lokayukta Act, 1984 created the offices of Lokayukta and Upa‑Lokayukta to provide a self‑contained mechanism for grievance redressal. Section 3 of the KL Act sets out the qualifications for appointment of the Lokayukta and Upa‑Lokayukta, mirroring the qualifications described earlier. The Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and Employees) Rules, 1988, provide for staff strength and composition, dividing staff into Administrative and Enquiry, Technical, Police and General wings., By a notification dated 6 February 1991, Police Inspectors of the Karnataka Lokayukta were authorized with investigative powers under Section 17 of the Prevention of Corruption Act, and by a notification dated 2 November 1992 the State Government authorized all such Inspectors, subject to overall control by the Lokayukta or Upa‑Lokayukta., The Honorable Supreme Court of India, in C. Rangaswamaiah (21 July 1998), again held that police officers on the rolls of the Karnataka Lokayukta work under the supervision and control of the Lokayukta and Upa‑Lokayukta, and that the legislative intent was to ensure that public servants covered by the KL Act are answerable to these authorities, which must be empowered to give effectual orders., The KL Act was amended by Karnataka Act No. 35 of 2015, introducing mechanisms for appointment and removal of the Lokayukta and Upa‑Lokayukta. The learned Single Judge of the High Court of Karnataka, in Criminal Petition No. 2653/2015, issued directions to strengthen the Lokayukta, appoint capable officers, remove over‑served officers, appoint public prosecutors for speedy trials, fill vacancies within a time‑bound period and prepare a Lokayukta manual. The State, by affidavit, affirmed its commitment to strengthen the Lokayukta and make it more accountable., Contrary to the representations before the learned Single Judge, the State Government, by Government Order dated 14 March 2016, created the Anti Corruption Bureau in Karnataka, effectively rendering the Lokayukta redundant. The notification dated 19 March 2016 authorised all Deputy Superintendents of Police to investigate under Section 17 of the Prevention of Corruption Act, which the petitioner contends is intended to defunct the Lokayukta and create a parallel body with lesser intent, making the notification unsustainable, malafide and legally infirm., The petitioner alleges that the constitution of the ACB is intended to shield corrupt politicians, ministers and officers from the scrutiny of the Lokayukta, thereby weakening the institution and contravening the object of the KL Act., The petitioner further submits that the impugned Government Order empowers the Chief Minister to veto investigations or sanctions, defeating the purpose of the anti‑corruption drive. The Deputy Superintendent of Police of the ACB, a Class I officer, works under the authority of the Chief Minister, making independent investigation against the Chief Minister impossible. Consequently, the ACB is functionally defective and its constitution is impermissible in law., Writ Petition No. 16222/2017 was filed in personal interest by Mr. K.T. Nagara, a Chief Engineer in the Bruhat Bengaluru Mahanagara Palike (BBMP), seeking a writ of certiorari to quash the Government Order dated 14 March 2016 constituting the ACB. The petitioner states that he has maintained an unblemished service record in the BBMP, but the third respondent, the ACB, suo motu initiated proceedings alleging that he had amassed wealth disproportionate to his known sources of income.
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On 23.10.2017 the Inspector of Police attached to the third respondent Anti-Corruption Bureau submitted a report showing 200 percent disproportionate assets. Based on that report, a First Information Report was registered in Crime No. 8/2017 under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act on 27.02.2017. The next day the third respondent Anti-Corruption Bureau conducted a raid on the house at No. 455, III Block, 21st Cross, 4th Link Road, Jayanagar, Bengaluru. The petitioner challenged the FIR before the Karnataka High Court in Criminal Petition No. 3044/2017 and the Court, by order dated 11.04.2017, granted an interim stay of further proceedings., The petitioner contends that the Karnataka Lokayukta Act, 1984 has received the assent of the President of India. The Act created the offices of Lokayukta and Upa-Lokayukta. Section 3 of the Act regulates the method of appointment of Lokayukta and Upa-Lokayukta and provides for a sufficient number of officers to ensure effective functioning of the institution. The Karnataka Lokayukta establishment is divided into four wings: Administrative and Enquiry Wing, Technical Wing, Police Wing and General Wing. The public servants covered under the Act include the Chief Minister, all other Ministers, members of the State Legislature, all officers of the State Government, Chairman and Vice Chairman of local authorities, and statutory bodies or corporations established under any law of the State Legislature., By a notification dated 06.02.1991, the Police Inspectors of the Lokayukta were authorized with the powers of investigation to meet the requirement of Section 17 of the Prevention of Corruption Act. The State of Karnataka also issued notifications declaring the offices of Lokayukta as Police Stations under Section 2(s) of the Code of Criminal Procedure., When the situation stood thus, the first respondent passed an Executive Order on 14.03.2016 constituting the Anti-Corruption Bureau, which lacks statutory force. This order, passed under Article 162 of the Constitution of India, is contrary to law. Since a police force had already been established under the Karnataka Lokayukta Act, the State cannot pass an Executive Order constituting the Anti-Corruption Bureau. The constitution of the Anti-Corruption Bureau is without authority of law and, although it purports to create an independent wing, it is controlled by the Chief Minister. After the constitution of the Anti-Corruption Bureau by way of executive order, the second respondent issued notifications dated 19.03.2016, thereby superseding earlier notifications dated 06.02.1991, 08.05.2012 and 05.12.2012. Consequently, the Lokayukta Police Force was virtually abolished. The constitution of the Anti-Corruption Bureau is therefore without statutory backing and cannot perform the duties of police., The petitioner further contends that the Karnataka Lokayukta was primarily established to make enquiries into administrative actions relating to matters specified in List II or List III of the Seventh Schedule to the Constitution of India. Alongside that function, a separate Police Wing, known as Lokayukta Police, was constituted to register, investigate and enforce the provisions of the Prevention of Corruption Act. The Police Wing was an independent investigating agency, envisaged by the Hon'ble Supreme Court of India in the case of Prakash Singh v. Union of India. Therefore, the establishment of the Anti-Corruption Bureau is against the letter and spirit of that judgment., Writ Petition No. 16223/2017 (filed in personal interest). This petition is filed by Mr. Kale Gowda, Assistant Engineer in the Public Works Department, Mandya, seeking a writ of certiorari to quash the Government Order dated 14.03.2016 constituting the Anti-Corruption Bureau and also to quash the First Information Report dated 06.02.2017 registered against him in Crime No. 1/2017 by the Anti-Corruption Bureau, together with all further proceedings pending against him., The petitioner states that the second respondent Anti-Corruption Bureau collected source information regarding his alleged income, which included the independent income of his brother‑in‑law and mother‑in‑law. The source report showed a disproportionate income of 105.44 percent, including the incomes of his relatives. Based on that report, the second respondent registered an FIR against him on 06.02.2017. The respondent sent a copy of the FIR to the Court and obtained a warrant to search his house, his office and the houses of his brother‑in‑law and mother‑in‑law. The Court, without applying mind, issued the warrant. The petitioner, a public servant governed by the Karnataka Civil Service (Conduct) Rules, had disclosed his lawful income by filing his statement of assets and liabilities each year. The search conducted by the respondent did not indicate any other sources of income, and therefore the petitioner has not committed any offence under Section 13(1)(e) of the Prevention of Corruption Act. Registering an FIR without a proper preliminary enquiry in corruption cases is contrary to law., The petitioner reiterates that the first respondent’s Executive Order of 14.03.2016 constituting the Anti‑Corruption Bureau lacks statutory force and is contrary to Article 162 of the Constitution of India. Since the police force had already been established under the Karnataka Police Act, the State cannot create an independent police wing by executive order. The Anti‑Corruption Bureau is under the exclusive control of the political executive, creating an inherent danger of subverting the process of law. After the constitution of the Anti‑Corruption Bureau, the second respondent issued notifications dated 19.03.2016, superseding earlier notifications dated 06.02.1991, 08.05.2002 and 05.12.2002 that had authorized the Lokayukta Police with investigative powers and declared the offices of Lokayukta Police Inspectors as Police Stations. Thus, the Lokayukta Police Force was effectively abolished. The constitution of the Anti‑Corruption Bureau remains without statutory basis and cannot perform police duties., Writ Petition No. 16697/2017 (filed in personal interest). This petition is filed by Mr. Sidharth Bhupal Shingadi, seeking to quash the Government Order dated 14.03.2016 constituting the Anti‑Corruption Bureau and also to quash the First Information Report dated 06.03.2017 registered against him in Crime No. 3/2017 by the Anti‑Corruption Bureau, together with all further proceedings., The petitioner was appointed as Village Accountant on 21.03.1986 and posted to Jalalpur village, Raibag Taluk, serving there for five years before being transferred to various places in Belagavi district. While serving as Village Accountant at Hirekodi village, the fifth respondent/complainant filed a false and frivolous complaint dated 06.03.2017 before the fourth respondent alleging that the complainant had applied for a change of revenue entry on 18.06.2016 and was instructed to approach the Village Assistant, Mr. Patel. Patel allegedly demanded a bribe of Rs 5,000, claiming the petitioner had directed him to take money. Based on this baseless complaint, the fourth respondent registered an FIR in Crime No. 3/2017 against the petitioner and others under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. An entrustment panchanama was drawn on 07.03.2017 to trap the petitioner and the Village Assistant. The trap report states that although the complainant offered the bribe, the petitioner refused to accept it. The petitioner has not committed any offence under the Prevention of Corruption Act but was falsely implicated by the third respondent Anti‑Corruption Bureau, contrary to the material on record. The petitioner seeks quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 16703/2017 (filed in personal interest). The petitioners, who are employees of Bruhat Bangalore Mahanagara Palike and government servants holding civil posts, have maintained unblemished service records. Various private complaints were lodged against them alleging demand for illegal gratification, leading to FIRs in Crime Nos. 22/2016, 27/2016 and 8/2016. The petitioners challenged the registration of these FIRs and the subsequent investigations before the Karnataka High Court. An interim stay was initially granted, later vacated, and the matter was taken on special leave to the Supreme Court of India, which stayed the order of the High Court. The petitioners now seek quashing of the Government Order dated 14.03.2016., Writ Petition No. 16862/2017 (filed in personal interest). The petitioner, Mr. Deepak Kumar, joined Karnataka Power Transmission Corporation Limited on 29.06.2010 and subsequently served in Wadi, Gulbarga District, Hassan and the KIADB Section of CHESCOM, Hassan. He served satisfactorily with no complaints. On 26.08.2016 the fourth respondent lodged a false and frivolous complaint before the third respondent alleging that the petitioner demanded illegal gratification of Rs 20,000 for sanction of 20 HP power. A trial mahazar and trap mahazar were conducted on 26.08.2016, leading to the petitioner’s suspension by CHESCOM on 07.09.2016, which was later revoked on 30.01.2017. The petitioner seeks quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 28341/2017 (filed in personal interest). The petitioner, an Assistant Executive Engineer in the Municipal Corporation, Tumkur, was implicated in Crime No. 3/2016 after a complaint by Syed Abu Sayeed. A trap on 13.10.2016 resulted in Accused No. 2 being caught with bribe money of Rs 40,000; the petitioner was out of station and escaped. The petitioner seeks quashing of the Government Order dated 14.03.2016 and the supporting notifications dated 19.03.2016, 30.03.2016 and 21.04.2016., Writ Petition No. 108010/2017 (filed in personal interest). The petitioner, initially appointed as Junior Engineer in 1994 in the Department of Public Works, Ports and Inland Water Transport, was later promoted and deputed to Hubli‑Dharwad Urban Development Authority in 2004. On 06.12.2016 the fourth respondent made an application for six guntas of land in Sy. No. 22/4. The fourth respondent later lodged a complaint on 13.02.2017 alleging that the petitioner demanded Rs 27,000 as cess challan and an additional amount of equal value. The third respondent Anti‑Corruption Bureau registered an FIR under Section 7 of the Prevention of Corruption Act (Crime No. 2/2017) and conducted a raid, which was unsuccessful in catching the petitioner. He was taken into custody and released on bail on 15.02.2017. The petitioner had earlier approached the Karnataka High Court in Criminal Petition No. 100663/2017 to quash the proceedings, which was rejected and affirmed by the Supreme Court of India. He now seeks quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 108689/2017 (filed in personal interest). The petitioner, engaged in computer servicing, was implicated after an anonymous complaint on 05.06.2017 alleging that Commercial Tax officers at the outward check post in Nippani were collecting illegal gratification. The fourth respondent forwarded the complaint to the third respondent, which registered an FIR under Sections 7, 8, 13(i)(d) read with 13(2) of the Prevention of Corruption Act. A raid was conducted on 11.06.2017 while the petitioner was repairing computers at the check post. An amount of Rs 540 was found with him, his personal money. The trap was unsuccessful; he was taken into custody and released on bail on 20.06.2017. He seeks quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 108690/2017 (filed in personal interest). Petitioners Nos. 1 to 3, employees of the Joint Commissioner of Commercial Taxes, Belgaum, were implicated after an anonymous complaint on 05.06.2017 alleging illegal gratification at the Nippani outward check post. The third respondent Anti‑Corruption Bureau registered an FIR under Sections 7, 8, 13(i)(d) read with 13(2) of the Prevention of Corruption Act. No names of the petitioners appeared in the FIR; the case was registered against officials at the check post. A trap mahazar was conducted, which found no material indicating that the petitioners demanded or accepted any gratification. Despite the unsuccessful trap, the petitioners were taken into custody and later released on bail. They seek quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 22851/2018 (filed in personal interest). The petitioners include a Sub‑Registrar in the Revenue Department, a practicing advocate, and a computer operator in the Sub‑Registrar’s office, Kadur. On 23.04.2018 a bedridden Smt. Seethamma requested private attendance for registration of a will and absolute sale deed. The first petitioner personally visited her house and registered the documents. The fourth respondent complained to the third respondent alleging that the first and second petitioners demanded illegal gratification for the registration. The third respondent registered a case under Sections 7, 8 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act (Crime No. 3/2018). The complaint incorrectly described the second petitioner as a stamp vendor; he is a practicing advocate. Entrustment mahazars were drawn on 12.04.2018, 23.04.2018 and 24.04.2018, but no trap succeeded and no illegal gratification was recovered. The petitioners seek quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 9147/2019 (filed in personal interest). The petitioner, a Government servant of the Public Works Department deputed as Assistant Director of Town Planning, Bruhat Bengaluru Mahanagara Palike, was alleged by the fourth respondent to have demanded a bribe of Rs 5,00,000 for sanctioning a building plan for a property in Varthu Hobli, Bangalore East taluk. The fourth respondent recorded a conversation on 19.11.2018 and lodged a complaint on 20.11.2018. The third respondent Anti‑Corruption Bureau registered a case under Section 7(a) of the Prevention of Corruption Act and conducted an entrustment mahazar and trap mahazar on 20.11.2018, which did not catch the petitioner red‑handed nor recover any money. The petitioner seeks quashing of the Government Order dated 14.03.2016 and the complaint and FIR., Writ Petition No. 18042/2019 (filed in personal interest).
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The petitioner has filed this writ petition in his personal interest for a writ of certiorari to quash the Government Order dated 14 March 2016 issued by the State Government constituting the Anti Corruption Bureau as well as the subsequent supporting Government notifications dated 19 March 2016, 30 March 2016 and 21 April 2016. It is the case of the petitioner that on 19 May 2017 the respondent No.2/Anti Corruption Bureau generated a source report by gathering information and particulars with regard to his alleged disproportionate assets. The said source report was transmitted to the Superintendent of Police on 9 May 2017. On that date the Superintendent of Police directed the Deputy Superintendent of Police, Anti Corruption Bureau to register a case under Section 13(1)(e) and Section 13(2) of the Prevention of Corruption Act and to conduct further enquiry. The Deputy Superintendent of Police had registered a case on 9 May 2017 in Crime No.20/17 for the offences punishable under the provisions of Section 13(1)(e) and Section 13(2) of the Prevention of Corruption Act. In the source report it is alleged that the petitioner has amassed disproportionate wealth in a sum of Rs.1,20,50,000 at 102.12 percent of known sources of income. The registration of the case as aforesaid is entirely illegal and contrary to law. The respondent Police have usurped the powers to investigate from the legally constituted body under the Karnataka Lokayukta Act by registering a case without there being a duly constituted legal body to work as a police station. Therefore the petitioner seeks to allow the writ petition by granting the reliefs sought., While reiterating the grounds urged in Writ Petition No.16222/2017 and connected Public Interest Litigations, with regard to presidential assent to the Karnataka Lokayukta Act, setting up an institution of Karnataka Lokayukta by abolishing the Vigilance Commission, Government notifications dated 6 February 1991, 8 May 2002 and 5 December 2002 that authorized the Lokayukta Police with powers to investigate and had declared the offices of Police Inspectors of Lokayukta as police stations, method of appointment of Lokayukta and Upa Lokayukta, strength and composition of the staff of Lokayukta, division of the staff of Lokayukta into four wings viz. Administrative and Enquiry Wing, Technical Wing, Police Wing and General Wing, public servants covered under the Karnataka Lokayukta Act, the independent nature of power of the Police Wing of the Karnataka Lokayukta as held by the Supreme Court of India in the case of C. Rangaswamaiah etc., issuance of Government Order dated 14 March 2016 and subsequent supporting notifications dated 19 March 2016, 30 March 2016 and 21 April 2016, the petitioners in all these writ petitions which are filed in personal interest sought to allow the writ petitions by quashing the Government Order dated 14 March 2016 as well as the subsequent supporting Government notifications dated 19 March 2016, 30 March 2016 and 21 April 2016., In the statement of objections filed by the State of Karnataka it is stated at the outset that the writ petition is misconceived and is not maintainable, both on facts as well as law and is liable to be dismissed in limine. The petitioner has made references to several issues which are factually incorrect, misleading and completely lacking in bonafides. The petitioner is a practising lawyer and claims to have filed the present writ petition in public interest. The petition lacks any kind of public interest, is politically motivated and lacks bonafides. The petitioner also has no locus standi to prefer this writ petition and on these preliminary issues the writ petition is liable to be dismissed in limine., It is further stated in the objections that the Police Wing attached to the Karnataka Lokayukta, as it stood prior to the impugned notifications, in so far as its functions and powers to investigate the cases arising out of the offences committed under the provisions of the Prevention of Corruption Act, were independent of any control by the office of Lokayukta and was never under the control of the Karnataka Lokayukta. Investigations of offences under the Prevention of Corruption Act were 'additional duties' entrusted to such Police Wing, which by practice was being referred to as 'Lokayukta Police', and in so far as its jurisdiction to investigate the offences arising out of the Prevention of Corruption Act, it carried out its duties as contemplated under the provisions of the Code of Criminal Procedure, Karnataka Police Act and the Prevention of Corruption Act, independent of any control by the Institution of the Karnataka Lokayukta. This Police Wing was part of the State Police, in the same manner as the rest of the Police, in terms of the Karnataka Police Act, insofar as it exercised its powers to investigate the offences under the Prevention of Corruption Act. Therefore the hue and cry that the petitioner has made to the effect that by creating the Anti Corruption Bureau the State Government has weakened the institution of Lokayukta or has interfered with its functioning is wholly misconceived, imaginary and lacking in bonafides, especially since the petitioner claims to be a practising advocate., It is further stated in the objections that as can be noticed from a reading of Sections 7, 8, 9 and 12 of the Karnataka Lokayukta Act, investigations contemplated are of civil nature ultimately resulting in reports and recommending appropriate action to be taken thereon. Under Section 14 of the Karnataka Lokayukta Act, when the Lokayukta is satisfied that a public servant has committed any criminal offence and should be prosecuted for such offence, then he may pass an order to that effect and initiate prosecution of the public servant concerned., It is further stated in the objections that on enactment of the 1984 Act the Lokayukta Institution was provided with a police wing, a technical wing and an enquiry wing for carrying out the functions, under the Karnataka Lokayukta Act. The Karnataka Lokayukta Act empowers the Lokayukta to inquire into complaints against public servants. However, it does not empower the Lokayukta to conduct or supervise criminal investigations into offences of corruption by public servants punishable under the Indian Penal Code or the Prevention of Corruption Act or under any other statute. The State Government is empowered to designate an office as a police station under Section 2(s) of the Code of Criminal Procedure., It is further stated in the objections that the Prevention of Corruption Act and the Indian Penal Code define the offences of corruption and prescribe punishments. The procedure for investigation into offences relating to corruption is laid down in the Code of Criminal Procedure and the Prevention of Corruption Act. Accordingly, the Government, exercising its powers under Section 17 of the Prevention of Corruption Act, earlier issued a notification on 6 February 1991 entrusting the Inspectors of Police, on deputation to the Karnataka Lokayukta 'police wing', with the powers of investigation under the Prevention of Corruption Act. In addition, the State Government, exercising its power under Section 2(s) of the Code of Criminal Procedure, declared the offices of the Police Wing of Karnataka Lokayukta as 'police stations' vide notifications dated 8 May 2002 and 5 December 2002., It is also stated in the objections that in the year 1992 the Government by executive order created a Bureau of Investigation in the Karnataka Lokayukta, which was headed by a Director General in the rank of Additional Director General of Police. The Director General was made an independent head of the department with a separate budget head. However, in 1998 the Government abolished the Bureau of Investigation and the post of Director General and the power of the Head of the Department was also withdrawn. The Registrar, Karnataka Lokayukta, was authorized to operate the finances of the Police Wing. This action of the Government brought the Police Wing under the administrative and financial control of the office of Lokayukta. As a result, police officers having powers of investigation under the Prevention of Corruption Act were brought administratively subordinate to the Lokayukta who had however no statutory powers or duties to administer any penal statute such as the Indian Penal Code or the Prevention of Corruption Act. The Lokayukta has powers of a civil court in terms of provisions of the Karnataka Lokayukta Act, but not a criminal court., It is further stated in the objections that the issue of competence of the Lokayukta Police Wing to investigate the cases under the Prevention of Corruption Act was challenged before this Court and later before the Supreme Court of India. The Apex Court in the case of C. Rangaswamaiah versus Karnataka Lokayukta finally decided in 1998 on this issue, stating that the police officers of the State on deputation to Karnataka Lokayukta continued to remain public servants in the services of the State Government as long as they were not absorbed in the Karnataka Lokayukta. The Supreme Court of India has held that this legal position is absolutely unassailable because the State of Karnataka has merely lent the services of these officers to the Lokayukta and the officers continued to be employees of the State. In spite of the deputation of the officers to the Lokayukta, the relationship of master and servant between the State of Karnataka and these officers does not stand terminated., It is further contended that the Lokayukta derives powers and functions under the Karnataka Lokayukta Act, which gives power to inquire into any action taken by any public servant in any case where a complaint involving a grievance or an allegation is made in respect of such action. For such enquiry, he is given the power of a civil court and the assistance of an enquiry wing, a technical wing and a police wing. After such enquiry/investigation, the Lokayukta is empowered to ask the competent authority to remedy or redress the injustice or hardship. He is also empowered to send a detailed report of investigation to the competent authority, which shall examine and take action based on the report. The above powers of the Lokayukta under the Karnataka Lokayukta Act do not envisage any authority to the Lokayukta under criminal statutes such as the Indian Penal Code and the Prevention of Corruption Act., In view of the above legal position and after considering all the aspects of the matter, the State Government, in the interest of effective implementation of both the Karnataka Lokayukta Act and the Prevention of Corruption Act, took a conscious decision to formalize the space between the Lokayukta and the Police Wing by separating the powers of the Lokayukta Police Wing investigating criminal offences under the Indian Penal Code and the Prevention of Corruption Act. Accordingly, the State Government issued Government Order No. DPAR 14 SLU 2016 dated 14 March 2016 constituting an independent Anti Corruption Bureau on the lines of the Central Bureau of Investigation, without disturbing the powers and functions of the Lokayukta under the Karnataka Lokayukta Act. In view of the constitution of the new Anti Corruption Bureau in the State of Karnataka, the powers of investigation given to the Police of the Lokayukta Police Wing earlier under Section 17 of the Prevention of Corruption Act and the police station status given to the offices of the Inspectors of Police under Section 2(s) of the Code of Criminal Procedure for the purpose of the Prevention of Corruption Act were withdrawn. Thereby the respondent State denied the averments made in the writ petition and sought to reject the writ petition., The second respondent – Anti Corruption Bureau filed objections denying the averments made in the writ petitions and contended that in cases pertaining to the Prevention of Corruption Act, 1988, there exists a statutory bar to the grant of interim relief in the form of stay of proceedings under the Act. The petitioners in the present writ petitions have not alleged that due to any stated irregularity or omission on behalf of the second respondent, any failure of justice has been occasioned. Further, as per the decision of the Supreme Court of India in the case of State of Madhya Pradesh versus Virender Kumar Tripathi, the stage at which failure of justice may be claimed has not even been reached in the present cases. It is further contended that the writ petition is not maintainable and is liable to be dismissed in limine for the following reasons: (a) the petitioner has deliberately misled this Court on issues of fact through averments in the writ petition; (b) the petitioner has not raised any substantive grounds challenging the institution of the proceedings against him by the second respondent, but has raised irrelevant and inconsequential grounds, which should be rejected; (c) there exists a strong prima facie basis to fully investigate the petitioner for the offences under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, based on the complaint., Thus the respondent State has denied the averments made in the writ petition and sought dismissal of the writ petition. Except in the above writ petitions, neither the State nor any other respondent has filed a statement of objections in other writ petitions including the Public Interest Litigations filed by the Advocates Association, Bengaluru in Writ Petition No.21468/2016 and also in the writ petition filed by Samaj Parivarthana Samudaya in Writ Petition No.23622/2016., It is contended that as per the recommendations of the Administrative Reforms Commission, the institution of Lokayukta was set up for the purpose of improving the standards of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administrative machinery. The institution of Lokayukta was created in 1985 under the Karnataka Lokayukta Act, which received the assent of the President of India on 16 January 1985. As per the Statement of Objects and Reasons of the Karnataka Lokayukta Act, apart from looking into complaints against administrative actions, including cases of corruption, the Act deals with the definition of corruption, which includes anything made punishable under the provisions of the Prevention of Corruption Act. The terms action, allegation, grievance and maladministration are defined under Section 2; Section 7 deals with matters which may be investigated by Lokayukta and an Upa Lokayukta; Section 9 deals with provisions relating to complaints and investigations; Section 12 relates to reports of Lokayukta; Section 14 deals with initiation of prosecution; Section 15 relates to staff of Lokayukta; and Sections 17, 17A and 19 deal with insult, contempt, inquiry, delegation etc., By a combined reading of the objects of the Karnataka Lokayukta Act and provisions of the said Act, it is clear that the Act is substantive law dealing with cases of corruption in public administration. The Government of Karnataka filled up certain gaps in the Karnataka Lokayukta Act by issuing earlier notifications dated 26 May 1986 under Section 2(s) of the Code of Criminal Procedure and notification dated 26 May 1986 under Section 17 of the Prevention of Corruption Act for the purpose of investing the Police Officers of the Karnataka Lokayukta for investigation of the offences under the Prevention of Corruption Act. To the same effect were the subsequent notifications dated 6 February 1991, 2 November 1992, 8 May 2002 and 5 December 2002, whereby the Government of Karnataka empowered and entrusted the powers of investigation in the officers of Lokayukta for the purpose of the Prevention of Corruption Act, subject to the overall control and supervision by the Lokayukta or Upa Lokayukta as the case may be. The said actions of the Government of Karnataka entrusting additional functions in the police officers attached to the Police Wing to the Lokayukta have been considered and approved by the Supreme Court of India in the case of C. Rangaswamaiah versus Karnataka Lokayukta., In the said case, the Supreme Court of India specifically considered the issue of deputation and entrustment of additional functions by seeking to harmonize Section 17 of the Prevention of Corruption Act and Section 15 of the Karnataka Lokayukta Act. As observed by the Apex Court in paragraphs 23 to 28, consent of the Lokayukta was necessary for the purpose of entrusting the functions of investigation under Section 17 of the Prevention of Corruption Act. The relevant portion of paragraph 23 is as follows: 'The lending authority cannot entrust extra duties without the consent of the borrowing authority.', It is further contended that for the issue of the notification dated 19 March 2016, purporting to withdraw the powers of the Lokayukta Police, the Government of Karnataka seeks to derive its power from Section 21 of the General Clauses Act, 1897 for the purpose of withdrawing the police powers granted to the Lokayukta Police by earlier notifications of 1986, 1991, 1992 and 2002. The Supreme Court of India has held that the consent of the borrowing authority is necessary for entrustment of extra duties. As soon as such duties were entrusted, the power under Section 17 of the Prevention of Corruption Act is used up. In view of the fact that similar conditions were not fulfilled and that the requirement of information, approval or consultation or obtaining consent has not been complied with by the Government of Karnataka for the purpose of withdrawing or superseding the earlier notifications, the Government of Karnataka should have fulfilled the conditions which would have enabled them to exercise the power. However, since the consent of the Karnataka Lokayukta was not obtained for the withdrawal of the police powers by the issue of notification dated 19 March 2016, the power under Section 21 of the General Clauses Act is not available. As held by the Supreme Court of India in the case of State of Madhya Pradesh versus Ajay Singh, the general power under Section 21 of the General Clauses Act to rescind the notification has to be understood in the light of the subject matter, context and effect of the relevant provisions of the statute under which the notification is issued and the power is not available after an enforceable right has been created under the notification., It is further contended that the Supreme Court of India in the case of Justice Chandrahekaraiah (Retd.) versus Janekere C. Krishna and others referred to the recommendations of the Administrative Reforms Commission which recommended appointment of an authority which is independent of the Executive, Legislature and the Judiciary. It is further observed that the institution of the Lokayukta should be demonstrably independent and impartial., The power of initiating prosecution is invested with the Lokayukta under Section 14 of the Karnataka Lokayukta Act. The formation of another bureau, department, wing or any other team which is not under the supervision and control of the Lokayukta does not align with the object of the Karnataka Lokayukta Act. Since the decision making public servants have been placed differently, compared to other public servants in terms of the notification dated 14 March 2016, there is violation of fundamental rights under Articles 14 and 21 of the Constitution of India. A police officer who is working under the disciplinary control of the Home Department and/or Government of Karnataka, while being an investigating officer under the Anti Corruption Bureau cannot be expected to conduct a fair and impartial inquiry or investigation in relation to high ranking public servants. On the other hand, a police officer working under the supervision of the Lokayukta is insulated from such influence. Article 21 of the Constitution of India ensures the right to life and liberty to every person. The said rights are required to be protected and safeguarded even in respect of public servants falling within the definition of Section 2(12) of the Karnataka Lokayukta Act, in the larger public interest. The representatives of the people, who are public servants and also full time government officials, are well protected if the investigation powers under the Prevention of Corruption Act are with the Lokayukta. There is absolutely no chance for vindictive action at the instance of political opponent against the representatives of the people. The same is the position in respect of the bureaucrats who take an independent decision in the larger public interest. If the investigation agency is not independent then the right to life and liberty guaranteed to the citizens under Article 21 is threatened., Under the Karnataka Lokayukta Act and Karnataka Lokayukta Rules 1985, the Lokayukta and Upa Lokayukta are declared to be persons of high responsibility and impeccable character and are given status akin to the Chief Justice of India. Relevant provisions which ensure independence of the Lokayukta are as follows: (1) The Lokayukta is appointed by the Governor on the advice of the Chief Minister in consultation with the Chief Justice of the Karnataka High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly as contemplated under Section 3(1) and 3(2) of the Karnataka Lokayukta Act; (2) The Lokayukta, before entering office, makes and subscribes before the Governor or some other person appointed in that behalf, an oath of affirmation as contemplated under Section 3(3) of the Karnataka Lokayukta Act; (3) The service conditions, allowance and pension of the Lokayukta are the same as that of the Chief Justice of India and the salary is that of the Chief Justice of the Karnataka High Court as contemplated under Rule 6 of the Karnataka Lokayukta Rules; (4) Removal of the Lokayukta is by a process (impeachment) similar to that of the Judges of the High Court and Supreme Court as contemplated under Section 6 of the Karnataka Lokayukta Act; (5) To ensure independence and no conflict, the Lokayukta shall not be connected with any political party, cannot hold any office of trust or profit, must sever his connections with the conduct and management of any business, must suspend practice of any profession as contemplated under Section 4 of the Karnataka Lokayukta Act; and (6) To ensure independence and no conflict, on ceasing to hold office, the Lokayukta is ineligible for further employment to any office of profit under the Government of Karnataka or any other authority, corporation, company, society or university relating to the Government of Karnataka., It is further contended that the police officers who are working for the Karnataka Lokayukta cannot be removed without the consent of the Lokayukta as contemplated in terms of Section 15 of the Karnataka Lokayukta Act. The object of this provision is to ensure the independence of the investigating agency. Under Section 15(3) of the Karnataka Lokayukta Act, the said police officers are under the direct supervision and disciplinary control of the Lokayukta. So far as the Anti Corruption Bureau police are concerned, they are under the direct control of the Executive and their tenure is not ensured. Interference in their investigation by the Executive is not ruled out. Therefore the fear or threat of transfer or vindictive action against them is also not ruled out. The notification dated 19 March 2016 issued by the Government of Karnataka withdrawing the status of police station on the Lokayukta is contrary to the provisions of Section 14 of the Karnataka Lokayukta Act read along with other provisions of the said Act and the Prevention of Corruption Act as well as the Karnataka Police Act, 1963. Even if it is held that the notification dated 19 March 2016 withdrawing the status of police station as per Section 2(s) of the Code of Criminal Procedure on the officers of the Lokayukta is valid in law, it is permissible for the Lokayukta to independently exercise the power of getting an FIR registered on the basis of the complaint laid before the Lokayukta., A careful reading of Section 14 of the Karnataka Lokayukta Act makes it clear that after investigation into any complaint, if the Lokayukta or an Upa Lokayukta is satisfied that a public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order., It is further contended that the Karnataka Lokayukta Act was passed on the basis of the recommendation made by the Administrative Reforms Commission, recommending the setting up of an institution of Lokayukta for the purpose of improving the standard of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in administrative measures. It is further contended that there cannot be two views that by means of legislation itself it was open to the Legislature to create an institution conferring powers of investigation both under criminal and civil jurisdiction. The reading of several provisions of the Karnataka Lokayukta Act makes it clear that the Lokayukta as an institution created for the purpose of preventing maladministration in public administration of the State is empowered to do so not only by instituting disciplinary action against erring public servants but also by initiating criminal proceedings wherever required on the basis of the materials on record., The provisions of Sections 7(1) and 7(2A) of the Karnataka Lokayukta Act confer the power to the Lokayukta to investigate several authorities or public servants of the State and empower the Lokayukta or an Upa Lokayukta to investigate any action taken by or with the general or specific approval of the public servant, if it is referred to him by the State Government. Section 8 of the Karnataka Lokayukta Act specifically bars the matter set out in the said section from investigation and Section 9 enables any person to make a complaint under the said Act to the Lokayukta or Upa Lokayukta. No doubt the Act does not define what is meant by complaint. The provisions of Section 9(2) stipulate that the complaint should be made in the prescribed form under Rule 4 of the Karnataka Lokayukta Rules. Though the definition of complaint is not provided in the Act, the Act defines the terms allegation under Section 2(2), grievance under Section 2(8), corruption under Section 2(5) and maladministration under Section 2(10). In the absence of a specific provision in the Act, it is well settled that the courts can look into the definition of those terms provided in similar statutes or general definitions., It is further contended that under Section 2(e) of the Lokpal and Lokayuktas Act, 2013, the complaint is defined as follows: 'Complaint means a complaint, made in such form as may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act, 1988.', It is further contended that Section 15 of the Karnataka Lokayukta Act relates to staff of the Lokayukta. The object of Section 15 is to make the institution of Lokayukta autonomous and its staff to be under the direct administrative supervision and disciplinary control of the Lokayukta, with a view to ensure independence and objectivity of the staff in assisting the Lokayukta or Upa Lokayukta in discharge of their duties. It is further contended that the object of the enactment is to provide transparency in public administration. In this context, it is relevant to refer to Section 190 of the Code of Criminal Procedure, which deals with powers of the magistrate to take cognizance of the offence. In view of the provisions of Section 190, the magistrate can take cognizance on the basis of (1) a complaint, (2) a police report and (3) suo motu (upon his own knowledge). Therefore cognizance of an offence can be taken on the basis of the police report or on the basis of a complaint filed as provided under Section 200 of the Code of Criminal Procedure and also suo motu, that is on the basis of information., Section 23 of the Karnataka Lokayukta Act empowers the State Government by notification in its official gazette to make rules for the purpose of carrying into effect the provisions of the said Act.
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In exercise of the said power, the State Government has framed the Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and Employees) Rules, 1988. Rule 3 of the said Rules provides for strength and composition of the staff of Lokayukta. Rule 4 provides for recruitment and minimum qualification of the Staff. First Schedule of the said Rules provides for four wings in the Lokayukta. They are: Administration and Enquiry Wing; Technical Wing; Police Wing; and General Wing., It is further contended that Second Schedule of the said Rules provides for the qualification of the staff to be recruited or deputed. Technical Wing consists of officials in the cadre of Chief Engineer/Engineers and Deputy Director of Statistics as well as Deputy Controller of Accounts. The Police Wing consists of the staff deputed from Police Department in the cadre of Indian Police Service as well as Karnataka Police Service., The cadre of the officers who are part of the institution of Lokayukta includes one Police Officer in the rank of Additional Director General of Police, who is an IPS Officer, one police officer in the rank of Deputy Inspector General of Police, 23 police officers in the rank of Superintendent of Police, 43 police officers in the rank of Deputy Superintendent of Police, 90 police officers in the rank of Police Inspector, 13 police officers in the rank of Police Sub‑Inspector, 4 police officers in the rank of Assistant Sub‑Inspector of Police and 145 police officers in the cadre of Head Constable. Apart from the above, 234 Civil Police Constables, 15 Head Constable Drivers, 30 Armed Police Constables and 148 Armed Police Constable Drivers. Therefore, statutorily a Police Wing is created and made as an inseparable part of the Lokayukta Institution., The powers of the Police Wing in no way can be taken away by virtue of the two notifications impugned in the present writ petition, one withdrawing status of police stations of Lokayukta and the second constituting Anti Corruption Bureau. The Police Wing attached to the institution of Lokayukta has all the powers and duties conferred on it under the Karnataka Police Act, 1964, and also under the Code of Criminal Procedure., Section 2(16) of the Karnataka Police Act defines the term \Police Officer\, which means any member of the Police force appointed or deemed to be appointed under the said Act and includes a special or an additional police officer appointed under section 19 or 20 of the said Act. Section 65 of the Police Act provides for duties of a Police Officer., It is also contended that the only restriction provided under the provisions of the Prevention of Corruption Act is that the officer to investigate the offences punishable under the Prevention of Corruption Act should not be below the rank of Deputy Superintendent of Police, as is clear from the reading of Section 17(c) of the Prevention of Corruption Act. Therefore, cadre strength of the Karnataka Lokayukta referred to above shows that there are police officers in the cadre of Additional Director General of Police, Deputy Inspector General of Police, Superintendent of Police and Deputy Superintendent of Police in all around 747 officers. As such, there cannot be any difficulty or objection for the Lokayukta Police in the cadre referred to above to conduct investigation in respect of the offences punishable under the Prevention of Corruption Act. There is no prohibition under the Prevention of Corruption Act in relation to the power of the Lokayukta Police, referred to above, to conduct any investigation with regard to the offences punishable under the Prevention of Corruption Act., It is further contended that the Karnataka Lokayukta Act is a self‑contained code providing for investigation, filing of complaint and all other incidental matters with the police attached to the Lokayukta institution by virtue of statutory provisions. When the Karnataka Lokayukta Act is holding the field, it is not permissible for the State, in exercise of its executive power under Article 162 of the Constitution of India, to constitute an Anti Corruption Bureau to nullify the power conferred on the Lokayukta as an institution under the Karnataka Lokayukta Act. In support of its contention, the Lokayukta relied upon judgment of the Honorable Supreme Court of India in the case of I.T.C. Bhadrachalam Paperboards vs. Mandal Revenue Officer, AP., It is further contended that the State Government under Article 162 of the Constitution of India has issued notification constituting Anti Corruption Bureau on an erroneous understanding of the judgment of the Honorable Supreme Court of India in the case of C. Rangaswamaiah and others vs. Karnataka Lokayukta and others. In fact the said judgment curtails the power of the State Government to constitute Anti Corruption Bureau or any alternative mode of investigating agency and interfere with the functioning of the Lokayukta. The principle in the Rangaswamaiah case is that it permits entrustment of extra work to any other investigating agency/Anti Corruption Bureau only to a limited extent and that too with the consent of Lokayukta. In the present case, the consent of the Lokayukta has not been obtained., It is further contended that the power is conferred on a very high authority, who is either the former Judge of the Supreme Court or who was the Chief Justice of the High Court or a Judge of the High Court for a period more than ten years to be Lokayukta and any High Court Judge to be Upa‑Lokayukta. It is a well‑settled principle of law that while interpreting the provisions of law, the object of the legislation is required to be kept in mind, as held by the Honorable Supreme Court in the case of Manmohan Das v. Bishun Das., In view of the dictum of the Honorable Supreme Court in the case of Institution of A.P. Lokayukta Upa‑Lokayukta & Others v. T. Rama Subba Reddy & Another (para 17) and the mandate of Section 63 of the Lokpal and Lokayukta Act, 2013, any effort to disband the Institution of the Karnataka Lokayukta will be regressive. Hence, the Government Order dated 14 March 2016, notification dated 19 March 2016 and all subsequent notifications issued pursuant to the Government Order dated 14 March 2016 for the purpose of formation and working of the Anti Corruption Bureau, could not have been issued. The same is hit by the requirement of Section 21 of the General Clauses Act., The notifications dated 19 March 2016 withdrawing the powers of the Lokayukta Police under Section 17 of the Prevention of Corruption Act read with Section 21 of the General Clauses Act, are bad in law and there is no source of power to issue such notifications., It is further contended that the Government Order dated 14 March 2016 is not tenable in view of the same being contrary to the law laid down by the Honorable Supreme Court. Paragraph 5 of the Government Order seeks to create an additional layer, which is not in consonance with the judgments of the Honorable Supreme Court in the case of Vineet Narain v. Union of India and Dr. Subramanian Swamy v. Director, CBI & Another. In the circumstances appropriate orders should be passed in the interest of the public at large., We have heard the learned counsel for the parties., Arguments advanced by Sri Ravi B. Naik, learned senior counsel for Sri K.B. Monesh Kumar, learned counsel for the petitioners in Writ Petition Nos. 19386/2016 and 21468/2016. Sri Ravi B. Naik contended that the provisions of Section 17 of the Prevention of Corruption Act specifies the persons authorized to investigate any offence punishable under the said Act. He further contended that earlier notifications dated 6 February 1991 and 2 November 1992 were issued by the State Government in support of the Lokayukta. In view of the provisions of section 15 of the Karnataka Lokayukta Act, there shall be such officers and employees as may be prescribed to assist the Lokayukta and the Upa‑Lokayukta in the discharge of their functions under the said Act. He further contended that without prejudice to the provisions of Section 1 of the Lokpal and Lokayukta Act, 2013, the Lokpal may, for the purpose of conducting any preliminary inquiry or investigation, utilise the services of any officer or organization or investigating agency of the Central Government or any State Government, as the case may be with prior concurrence of Central and State Government., The learned senior counsel further contended that the statutory powers assigned to Lokayukta and Upa‑Lokayukta under the provisions of the Karnataka Lokayukta Act cannot be diluted by the executive orders passed by the State Government under Article 162 of the Constitution of India. The provisions of Section 23 of the Karnataka Lokayukta Act empower the Government to make rules. He further contended that earlier the State Government, in exercise of the powers conferred by clauses of Section 2 of the Code of Criminal Procedure, has issued notification declaring the offices of Lokayukta Police as Police Stations, thereby they have power to investigate the offences punishable under the Prevention of Corruption Act. The same is withdrawn by the impugned executive order, thereby making the Lokayukta and Upa‑Lokayukta powerless. He further contended that the State Government by notification dated 2 November 1992 and in partial modification of the earlier notification dated 6 February 1991, has authorized all the Inspectors of Police, Office of the Karnataka Lokayukta for the purpose of the proviso to Section 17 of the Prevention of Corruption Act, subject to the overall control and supervision by the Lokayukta or Upa‑Lokayukta as the case may be. Now by virtue of the present notification, the said power is withdrawn which is impermissible. The learned senior counsel further contended that the field occupied under the provisions of the Karnataka Lokayukta Act cannot be taken away by the State Government by way of the notification dated 14 March 2016, thereby he sought to allow the petition., In support of his contentions, the learned senior counsel relied upon the dictum of the Honorable Supreme Court in the case of C. Rangaswamaiah vs. Karnataka Lokayukta (paragraphs 26 to 30)., Arguments advanced by Sri M.S. Bhagwat, learned senior counsel for the petitioners in Writ Petition Nos. 9147/2019, 108689/2017, 108690/2017 and 22851/2018. The writ petitions are filed by the individual petitioners in their personal interest challenging the Government Order dated 14 March 2016 constituting Anti Corruption Bureau under Article 162 of the Constitution of India., Sri M.S. Bhagwat contended that Entry‑2 of List II to the Seventh Schedule of the Constitution of India contemplates Police (including railway and village police) subject to the provisions of Entry 2A of List I. Entry 2A of List I contemplates deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. He further contended that the provisions of Section 3 of the Karnataka Police Act, 1963 contemplate that there shall be one Police Force for the whole State, thereby the State cannot create one more police wing i.e., Anti Corruption Bureau under Article 162 of the Constitution of India. He further contended that the provisions of Section 4 of the Karnataka Police Act contemplate superintendence of Police Force to vest in the Government. The provisions of Section 20‑A of the Karnataka Police Act contemplate the State Security Commission. When there is a specific wing under the Karnataka Police Act, introducing one more authority would not arise, thereby the executive order of the Government dated 14 March 2016 is contrary to the provisions of Sections 3, 4 and 20‑A of the Police Act. Absolutely, there is no possibility of impartial investigation at the instance of the authority constituted under the notification., He further contended that the object of the Lokayukta Act depicts that the Administrative Reforms Commission had recommended setting up the institution of Lokayukta for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery. He referred to the provisions of Section 2(2) of the Karnataka Lokayukta Act, which contemplates that allegation in relation to a public servant means any affirmation that such public servant (a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; (b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; and (c) is guilty of corruption, favouritism, nepotism, or lack of integrity in his capacity as such public servant., He further contended that as per subsection (5) of Section 2 of the Karnataka Lokayukta Act, corruption includes anything made punishable under Chapter IX of the Indian Penal Code or under the provisions of the Prevention of Corruption Act. He also contended that subsection (8) of Section 2 defines grievance, which means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration. He further contended that Section 7 of the Karnataka Lokayukta Act deals with matters which may be investigated by the Lokayukta and an Upa‑Lokayukta. Section 7(2) of the Karnataka Lokayukta Act prescribes that subject to the provisions of the said Act, an Upa‑Lokayukta may investigate any action which is taken by or with the general or specific approval of any public servant not being the Chief Minister, Minister, Member of the Legislature, Secretary or other public servant referred to in subsection (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upa‑Lokayukta recorded in writing, the subject of a grievance or an allegation., He further contended that the provisions of Section 14 of the Karnataka Lokayukta Act contemplate initiation of prosecution and Section 23 of the Karnataka Lokayukta Act contemplate power to make rules. He further contended that a separate police wing has been constituted to look after the allegation of corruption against the public servant. In view of the aforesaid provisions of the Karnataka Lokayukta Act and the Rules, the State Government has no authority to pass an executive order under the provisions of Article 162 of the Constitution of India, diluting the statutory powers as contemplated under the Karnataka Lokayukta Act and the Police Act., He further contended that Section 63 of the Lokpal and Lokayukta Act, 2013 relates to establishment of Lokayukta and as per the said section, every State shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of the said Act. He further contended that the object of the Lokpal and Lokayukta Act as stated is that there must be a Lokayukta to deal with complaints and eradicate corruption against certain public functionaries, thereby the executive order passed by the State Government is impermissible and the State Government is indirectly encouraging corruption in the State. Therefore, he sought to allow the writ petitions., In support of his contentions, the learned senior counsel relied upon the following judgments: State of Sikkim vs. Dorjee Tshering Bhutia and others (1991 SCC 243); Dr. D.C. Wadhwa & others vs. State of Bihar and others (1987 SCC 378); Bishambhar Dayal Chandra Mohan vs. State of Uttar Pradesh and others (1982 SCC 39); B.N. Nagarajan & others vs. State of Mysore and others (AIR 1966 SC 1942); M.V. Dixit vs. State of Karnataka and others (2004 Kar. L.J. 69); C. Rangaswamaiah & others vs. Karnataka Lokayukta (1998 SCC 66); Prakash Singh & others vs. Union of India & others (2006 SCC 1); State of Gujarat & others vs. State of Gujarat & others (2010 SCC 254)., Arguments advanced by Sri V. Lakshminarayana, learned senior counsel/amicus curiae. Sri V. Lakshminarayana, on instructions from the instructing counsel, submitted that Writ Petition Nos. 58252/2017, 3109/2018 and 4319/2018 may be dismissed as withdrawn and accordingly, the writ petitions were dismissed as withdrawn by separate orders on 27 June 2022. However, since he was appearing for some of the private parties and has argued the matter at length, this Court by the order dated 27 June 2022 requested him to assist the Court as an amicus curiae. Accordingly, he assisted the Court as amicus curiae., Sri V. Lakshminarayana, while referring to the impugned notification dated 14 March 2016, contended that the notification contemplates that the Government has realized necessity of a strong and effective vigilance system in addition to the Karnataka Lokayukta, in order to prevent the inappropriate operation of the administrative apparatus and improve the administration and therefore, it has been decided to divest the Karnataka Lokayukta of its additional responsibility under the Prevention of Corruption Act, thereby the Government has ordered to create an Anti Corruption Bureau so as to effectively enforce and conduct independent investigations under the Prevention of Corruption Act, establish Vigilance Cells in all the departments of the government and a Vigilance Advisory Board to supervise such a system of vigilance., The notification states that the Anti Corruption Bureau was created with the following designations: Additional Director General of Police; Inspector General of Police; Superintendent of Police; Deputy Superintendent of Police; Police Inspectors; Head Constable/Police Constable. In order to supervise the Vigilance System in the State, a Vigilance Advisory Board has been created consisting of the Chief Secretary; Additional Chief Secretary, Internal Administration; Principal Secretary, Department of Finance; Principal Secretary, Department of Personnel and Administrative Reforms; two eminent personalities experienced and experts in the field of administration and public issues; Secretary, Vigilance Wing of Department of Personnel and Administrative Reforms., The notification further provides that the Anti Corruption Bureau will function under the overall supervision of the Department of Personnel and Administrative Reforms and, to provide the necessary administrative support to the Anti Corruption Bureau, a post of the rank of Secretary would be created in the Department of Personnel and Administrative Reforms and under his leadership, a Vigilance Wing is created. The Secretary of the Department of Personnel and Administrative Reforms Vigilance Wing will report to the Honorable Chief Minister through the Chief Secretary., The learned senior counsel/amicus curiae further contended that by virtue of the Government Order, the independent powers conferred under the statute have been removed which is impermissible. He further contended that the Honorable Chief Minister has no role in the independent investigation by the competent authority, thereby the Government Order dated 14 March 2016 is contrary to the object of the Karnataka Lokayukta Act. The investigation has to be done by the Lokayukta under the Prevention of Corruption Act and the State cannot appoint another agency by way of executive order to proceed under the provisions of Section 17 of the Prevention of Corruption Act. He further contended that the authority should be independent of the Executive, Legislature, Judiciary and the fourth wing – Press & Media., He further contended that under the provisions of Section 15(3) of the Karnataka Lokayukta Act, the Lokayukta or an Upa‑Lokayukta may, for the purpose of conducting investigations under this Act, utilise the services of any officer or investigating agency of the State Government or the Central Government., He further contended that the United Nations Convention against Corruption is committed to pursue the policy of zero tolerance against corruption and the instrument of ratification is dated 9 May 2011. He further contended that the Police Officers are under the administrative control of the Lokayukta or Upa‑Lokayukta under the Act. He invited the attention of the Court to Article 1 of the United Nations Convention against Corruption, which relates to statement of purpose. The purposes of the Convention are: to promote and strengthen measures to prevent and combat corruption more efficiently and effectively; to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; to promote integrity, accountability and proper management of public affairs and public property., He further invited the Court to Article 3 of the United Nations Convention against Corruption, which relates to scope of application. Article 3 prescribes that the convention shall apply, in accordance with its terms, to the prevention, investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of the proceeds of offences established in accordance with the convention., He further contended that Chapter II of the United Nations Convention against Corruption contemplates preventive measures and it is relevant to refer to certain articles of the said chapter. Article 5 deals with preventive anti‑corruption policies and Article 6 relates to preventive anti‑corruption body or bodies. Sub‑clause (2) of Article 6 contemplates that each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. Article 7(1)(d) relates to promoting education and training programmes. Article 30 contemplates prosecution, adjudication and sanctions. Article 36 contemplates specialized authorities and it stipulates that each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such bodies should have the appropriate training and resources to carry out their task., He further contended that Article 253 of the Constitution of India relates to legislation for giving effect to international agreements. It contemplates that notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body., He further contended that the statement of objects and reasons of the Karnataka Lokayukta Act depicts that the institution of Lokayukta was set up for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery. He brought to the notice of the Court the definition of public servant as defined under subsection (12) of Section 2 of the Karnataka Lokayukta Act so also provisos (1) and (2) of Section 17 of the Prevention of Corruption Act and contends that there cannot be any dilution of powers. The learned senior counsel further contended that the investigation has nothing to do with the administration. Once the notification for investigation is issued under Section 17(c) of the Prevention of Corruption Act, it becomes statutory enforcement and the same cannot be withdrawn by the executive orders of the State Government. He further pointed out that corruption can be investigated only by one investigating agency., He further contended that the investigation should be fair and proper on the part of the investigating officer, who is the backbone of the rule of law. He further contended that investigation should be independent without any bias, fear or favour., He further contended that the allegation with regard to corruption can be investigated only by one authority under the provisions of the Prevention of Corruption Act and not two authorities viz., Lokayukta as well as Anti Corruption Bureau. The creation of Anti Corruption Bureau parallel to the institution of Lokayukta is bad in law. He further contended that the Government Order dated 14 March 2016 issued under the provisions of Article 162 of the Constitution of India clearly depicts that at every step there will be political influence on the officer concerned which is impermissible. Anti Corruption Bureau should work under the provisions of the Karnataka Lokayukta Act in view of the dictum of the Honorable Supreme Court in the case of Rangaswamaiah. The provisions of Section 21 of the General Clauses Act is not applicable.
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He further contended that by virtue of the Government Order dated 14.03.2016, independence of Lokayukta and its effective functioning as a matter of utmost importance has been removed or diluted and people's faith in the working of public servants is shaken. He further contended that the dictums or decisions of Lokayukta or Upa‑Lokayukta should not become mere paper directions. Lokayukta and Upa‑Lokayukta must be armed with proper tooth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the disciplinary authorities concerned., Learned senior counsel further contended that the Government Order dated 14.03.2016 is contrary to the provisions of Section 15(1) and (2) of the Karnataka Lokayukta Act. He further contended that the public servant as defined under the provisions of Section 2(12) of the Karnataka Lokayukta Act includes the Honorable Chief Minister. But the impugned Government Order dated 14.03.2016 indirectly excludes some of the authorities mentioned in Section 2(12) of the Karnataka Lokayukta Act including the Honorable Chief Minister., In support of his contentions, learned senior counsel relied upon the dictum of the Honorable Supreme Court of India in the case of Chandrashekaraiah v. Janekere C. Krishna (paragraphs 20, 21 and 36)., These writ petitions are filed by the individual petitioners in their personal interest challenging the Government Order dated 14/03/2016 constituting the Anti‑Corruption Bureau under Article 162 of the Constitution of India as well as the subsequent supporting notifications dated 19.03.2016, 30.03.2016 and 21.04.2016 issued by respondent No.1., Sri C.V. Sudhindra, learned counsel for the petitioners contended that Section 17 of the Prevention of Corruption Act contemplates the persons authorized to investigate the cases under the PC Act and the first proviso to the said section envisages that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest thereof without a warrant. The second proviso to the said section provides further that an offence referred to in clause (b) of sub‑section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. He further contended that the said provisions contemplate investigation of (a) trap cases and (b) disproportionate assets cases, as contemplated under Sections 7 and 13(a)(b)(c)(d)(e) of the PC Act., Learned counsel further contended that by the impugned Government Order dated 14.03.2016, the Anti‑Corruption Bureau is constituted with the following posts: 1 Addl. Director General of Police (ADGP) – 01; 2 Inspector General of Police (IGP) – 01; 3 Superintendent of Police (SP) – 10; 4 Deputy Superintendent of Police (DySP) – 35; 5 Police Inspectors (PI) – 75; 6 Head Constables/Police Constables – total 322., Learned counsel also contended that in order to supervise the vigilance system in the State, a Vigilance Advisory Board has been created comprising the following persons: 1 Chief Secretary – President of Board; 2 Addl. Chief Secretary, Internal Administration – Member; 3 Principal Secretary, Department of Finance – Member; 3 Principal Secretary, Department of Personnel and Administrative Reforms (DPAR) – Member; 5 Two prominent persons having specialization and experience in administration and public matters – Members; 6 Secretary, DPAR Vigilance Division – Member Secretary., Learned counsel further contended that the Vigilance Advisory Board will meet at least once in three months to review the operations of the Vigilance Cells in the Government and to review the progress of the Anti‑Corruption Bureau and the cases pending before it. In case the Vigilance Advisory Board decides to refer the investigation to be conducted by an outside agency or organization, such matter after approval of the Chief Minister may be handed over to the Criminal Investigation Department (CID). Therefore, he contended that one cannot expect the Vigilance Advisory Board to function independently, since even to refer the investigation to CID, approval of the Chief Minister must be obtained., Learned counsel also contended that Section 2(16) of the Karnataka Police Act contemplates that a Police Officer means any member of the police force appointed or deemed to be appointed under the said Act and includes a special or an additional police officer appointed under Section 19 or 20. He further contended that Section 2(22) of the Karnataka Police Act contemplates that Superior Police means members of the police force above the rank of Inspector. He further contended that the provisions of Section 6 of the Karnataka Police Act, 1963, contemplate that for the direction, control and supervision of the police service, the Government shall appoint a Director General and Inspector General of Police, who shall, subject to the control of the Government, exercise such powers and perform such functions and duties and shall have such responsibilities and authority as may be provided by or under the said Act. Sub‑section (2) of Section 6 of the Karnataka Police Act, 1963, contemplates that the Director General and Inspector General of Police shall be selected by the State Government from amongst officers of the Indian Police Service in the rank of Director General of Police who have been empanelled for promotion to that rank on the basis of their length of service, very good history of service, professional knowledge and ability to lead the police force in the State. Therefore, he contended that the impugned Government Order dated 14.03.2016 is in utter violation of Articles 14 and 21 of the Constitution of India and the provisions of Section 6(1) and (2) of the Karnataka Police Act, thereby frustrating the very intention and enactment of the Karnataka Police Act, 1963. Consequently, he sought to allow the writ petition., The petitioner filed this writ petition in his personal interest challenging the validity of the Government Order dated 14.03.2016 constituting the Anti‑Corruption Bureau and the complaint dated 06.03.2017 and the FIR registered thereon dated 06.03.2017., Sri Sharath S. Gowda, learned counsel for the petitioner while adopting the arguments of Sri M.S. Bhagwath, learned senior counsel and Sri V. Lakshminarayana, learned senior counsel/amicus curiae, contended that the definition of public servant as contemplated under the provisions of Section 2(12) of the Karnataka Lokayukta Act includes the Chief Minister; a Minister; a Member of the State Legislature; a Government servant etc. By virtue of the impugned Government Order constituting the Anti‑Corruption Bureau, ultimately the investigation or report has to be approved by the Chief Minister and thereby he cannot decide his own case. Therefore, he sought to allow the writ petition by quashing the Government Order dated 14.03.2016., Sri Ashok Haranahalli, learned senior counsel along with Sri B.S. Prasad and Sri Venkatesh S. Arabatti, learned counsel for the Lokayukta, contended that the Karnataka Lokayukta Act was enacted for the purpose of improving the standards of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administrative machinery. Where, after investigation into the complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration and, in case, the declaration is accepted by the Competent Authority, the public servant concerned, if he is a Chief Minister or any other Minister or Member of the State Legislature, shall resign his office; if he is any other non‑official, shall be deemed to have vacated his office; and, if an official, shall be deemed to have been kept under suspension, with effect from the date of the acceptance of the declaration. Learned senior counsel further contended that if, after investigation, the Lokayukta is satisfied that the public servant has committed any criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law for such prosecution shall be deemed to have been granted. The Vigilance Commission is abolished, but all inquiries, investigations and other disciplinary proceedings pending before the Vigilance Commission were transferred to the Lokayukta. The Bill became an Act with some modifications as the Karnataka Lokayukta Act, 1984. Thereby, he contended that the impugned Executive Order passed by the State Government under the provisions of Article 162 of the Constitution of India dated 14/03/2016 is contrary to the very object of the Karnataka Lokayukta Act., Learned senior counsel further refers to the provisions of Section 14 of the Karnataka Lokayukta Act which state that if, after investigation into any complaint, the Lokayukta or an Upa‑Lokayukta is satisfied that the public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then he may pass an order to that effect and initiate prosecution of the public servant concerned and, if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order or any other agency., Learned senior counsel would further contend that Section 15(3) of the Karnataka Lokayukta Act, 1984 contemplates that without prejudice to the provisions of sub‑section (1) the Lokayukta or an Upa‑Lokayukta may, for the purpose of conducting investigations under this Act, utilise the services of any officer or investigating agency of the State Government or any officer or investigating agency of the Central Government with the prior concurrence of the State Government. He specifically pointed out that Section 15(4) of the Karnataka Lokayukta Act contemplates that the officers and other employees referred to in sub‑section (1) shall be under the administrative and disciplinary control of the Lokayukta. He further contended that the United Nations Convention against Corruption is committed to pursue the policy of zero tolerance and India has ratified it, imposing a number of obligations, some mandatory, some recommendatory, some optional., Learned senior counsel would further refer to the provisions of Sections 11 and 12 of the Lokpal and Lokayuktas Act, 2013 with regard to the enquiry wing and prosecution. He would further refer to Section 23 of the said Act which deals with the power of the Lokpal to grant sanction for initiating prosecution. Sub‑section (2) of Section 23 contemplates that no prosecution under sub‑section (1) shall be initiated against any public servant accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such offence except with the previous sanction of the Lokpal. He also refers to Section 24 of the Lokpal and Lokayuktas Act, which deals with action on investigation against a public servant being the Prime Minister, a Minister or a Member of Parliament, and the said section contemplates that where, after the conclusion of the investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act by a public servant referred to in clause (a) or (b) or (c) of sub‑section (1) of Section 14, the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority. He also refers to Section 63 of the Lokpal and Lokayuktas Act, which relates to the establishment of the Lokayukta. The said section contemplates that every State shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within one year from the date of commencement of the said Act., Finally, learned senior counsel contended that the impugned Executive Order passed by the State is in utter violation of the provisions of Sections 11, 12, 15, 23 and 24 of the Lokpal and Lokayuktas Act. He would further contend that the powers of the Lokayukta should be on par with the powers of the Lokpal. Therefore, the Executive Order passed by the State Government under the provisions of Article 162 of the Constitution of India is contrary and bad in law. In support of the said contention, he relied upon the dictum of the Honorable Supreme Court of India in the case of Ashwini Kumar Upadhyay v. Union of India & others (paragraph 6)., Learned senior counsel further contended that the Lokpal Act was enacted under Article 223 of the Constitution of India. The powers to prosecute were given by the Notification dated 06/02/1991 under the provisions of Section 17(c) of the Prevention of Corruption Act and the same were withdrawn on 19/03/2016., Learned senior counsel mainly drew the attention of the High Court of Karnataka to paragraph No.25 of the judgment in C. Rangaswamaiah cited supra, wherein it is stated that if the State Government wants to entrust such extra work to officers on deputation with the Lokayukta, it can certainly inform the Lokayukta of its desire to do so. If the Lokayukta agrees to such entrustment, there will be no problem. But if, for good reasons, the Lokayukta thinks that such entrustment of work by the State Government is likely to affect its functioning or independence, it can certainly inform the State Government accordingly. In case the State Government does not accept the viewpoint of the Lokayukta, then it will be open to the Lokayukta—having regard to the need to preserve its independence and effective functioning—to take action under Section 15(4) (read with Section 15(2)) and direct that these officers on deputation in its police wing will not take up any such work entrusted to them by the State Government. Of course, it is expected that the State Government and the Lokayukta will avoid any such unpleasant situations but will act reasonably in their respective spheres., Learned senior counsel also drew the attention of the High Court of Karnataka to paragraph 28 of the judgment in C. Rangaswamaiah cited supra, where it is stated that if instead of deputation of police officers from the Government, any other solution can be found, that is a matter to be decided amicably between the State Government and the Lokayukta, keeping in view the independence of the Lokayukta and its effective functioning as matters of utmost importance., Learned senior counsel would further contend that with regard to the powers of the Lokayukta, the Honorable Supreme Court of India in the case of Institution of A.P. Lokayukta/Upa‑Lokayukta, A.P. & others v. T. Rama Subba Reddy and another at paragraph 17 held that the legislative intent behind the enactment is to ensure that public servants covered by the sweep of the Act are answerable for their actions to the Lokayukta, who is to be a Judge or a retired Chief Justice of the High Court, and, in appropriate cases, to the Upa‑Lokayukta, who is a District Judge of Grade I as recommended by the Chief Justice of the High Court, so that these statutory authorities can work as real ombudsmen for ensuring that people's faith in the working of these public servants is not shaken. These statutory authorities are meant to cater to the need of the public at large with a view to seeing that public confidence in the working of public bodies remains intact. When such authorities consist of high judicial dignitaries, it is obvious that they should be armed with appropriate powers and sanctions so that their orders and opinions do not become mere paper directions. The decisions of Lokayukta and Upa‑Lokayukta, therefore, must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the disciplinary authorities concerned. Section 12, sub‑section (3) of the Act provides that once the report is forwarded by the Lokayukta or Upa‑Lokayukta recommending the imposition of penalty of removal from the office of a public servant, the Government may act on such recommendation without any further inquiry. However, it is not provided that the Government will be bound to comply with the recommendation of the Lokayukta or Upa‑Lokayukta. The question may arise in a properly‑instituted public interest litigation as to whether the provision of Section 12(3) implies a power coupled with a duty which can be enforced by a writ of mandamus by the High Court or any other competent court, but apart from such litigations and the uncertainty underlying the results thereof, it would be more appropriate for the legislature itself to make a clear provision for due compliance with the report of the Lokayukta or Upa‑Lokayukta so that public confidence in the working of the system does not erode and these institutions can effectively justify their creation under the statute., Learned senior counsel also relied upon the dictum of the Honorable Supreme Court of India in the case of Dr. Subramanian Swamy v. Director, Central Bureau of Investigation & another, wherein at paragraphs 58, 59, 67, 71 and 74 it is held that classification made in Section 6‑A of the Prevention of Corruption Act, 1988 on the basis of status in the Government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into allegations of graft. All public servants, irrespective of their rank, must be confronted with the process of investigation and inquiry equally. The provision in Section 6‑A neither eliminates public mischief nor achieves any positive public good; rather, it advances public mischief and protects the wrongdoer, thereby thwarting an independent, unhampered, unbiased, efficient and fearless inquiry to track down corrupt public servants., In support of his contentions, learned senior counsel further relied upon the following judgments: 1. Prakash Singh & others v. Union of India & others (paragraphs 19, 22, 25 and 29); 2. C. Rangaswamaiah and others v. Karnataka Lokayukta and others (paragraphs 19, 20, 25, 27 and 28); 3. Justice K.P. Mohapatra v. Sri Ram Chandra Nayak & others (paragraphs 11 and 12). Therefore, he sought to allow the writ petitions., Sri Prabhuling K. Navadgi, learned Advocate General while justifying the impugned Government Order dated 14.03.2016 passed by the State Government constituting the Anti‑Corruption Bureau, has contended that the following issues arise for consideration: I) Whether the impugned notification constituting the Anti‑Corruption Bureau is in excess of the power conferred upon the Government under Article 162 of the Constitution of India? a) Whether the constitution of the Anti‑Corruption Bureau by way of executive instructions is impermissible, since according to the petitioners there are two enactments operating in the same field viz. the Karnataka Police Act, 1963 and the Karnataka Lokayukta Act, 1984; b) The parameters and general principles under Article 162 of the Constitution of India? II) Whether the constitution of the Anti‑Corruption Bureau violates the provisions of the Karnataka Lokayukta Act, 1984? a) Whether it is impermissible for any jurisdictional police to investigate offences under the Prevention of Corruption Act, 1988 since it is an occupied field by the Karnataka Lokayukta Act, 1984; b) Whether the present impugned notification impinges upon the autonomy, independence and functioning of the Lokayukta under the Karnataka Lokayukta Act, 1984? III) Whether the impugned notification is in conflict with the Lokpal and Lokayuktas Act, 2013? IV) Whether the impugned notification, which in turn constitutes the Vigilance Advisory Board or which provides for obtaining prior approval of the competent authority, is arbitrary, unguided and undermines the independence of the Anti‑Corruption Bureau? V) Tabulation of the number of cases filed by the Anti‑Corruption Bureau after its constitution., Learned Advocate General further contended that under Article 162 of the Constitution of India, the Executive can make any order under List II or List III to the Seventh Schedule of the Constitution of India. He draws the attention of the High Court of Karnataka to the three enactments viz. the Karnataka Police Act, 1963, the Karnataka Lokayukta Act and the Prevention of Corruption Act., Learned Advocate General further contended that as per the provisions of Section 5 of the Karnataka Police Act, the police force shall consist of such number in the several ranks and have such organisation and such powers, functions and duties as the Government may by general or special order determine, but all are working under the Police Act. The Anti‑Corruption Bureau is created under Article 162 of the Constitution of India for the purpose of investigating offences under the provisions of the Prevention of Corruption Act., Learned Advocate General further contended that the Executive Order passed by the State Government dated 14.03.2016 does not conflict with any of the provisions either under the Karnataka Lokayukta Act or the Karnataka Police Act. In terms of the Executive Order dated 14.03.2016, the Anti‑Corruption Bureau is working under the provisions of the Prevention of Corruption Act as a separate wing or authority and the same has nothing to do with the provisions of the Karnataka Lokayukta Act. The powers and functions of the Lokayukta and the Anti‑Corruption Bureau are entirely different. He further contended that under the provisions of Section 2(c) of the Prevention of Corruption Act, public servant means persons falling under any of the twelve sub‑clauses of the said section. In view of the provisions of Sections 7, 7A, 8, 9, 10, 13, 17(a) and (b) and 23 of the Prevention of Corruption Act, the Anti‑Corruption Bureau has to register, investigate and proceed in accordance with law. The investigation can be done by the Anti‑Corruption Bureau as contemplated under the provisions of the Prevention of Corruption Act. He would further contend that the provisions of Sections 17A and 19 of the Prevention of Corruption Act clearly depict that Section 3 of the Prevention of Corruption Act is a complete code in itself. The provisions of Section 2(s) of the Code of Criminal Procedure contemplate the in‑charge police station. Under the provisions of Sections 9, 12, 13, 14 of the Karnataka Lokayukta Act, the Anti‑Corruption Bureau has no role and only the officers working in the Lokayukta can investigate. He further contended that, as of today, the Lokayukta has 747 police officers to investigate and work under the Karnataka Lokayukta Act, whereas only 447 police officers are working in the Anti‑Corruption Bureau., Learned Advocate General further pointed out that with regard to Clause‑5 of the Government Order dated 14.03.2016, the Chief Secretary, Government of Karnataka, filed an affidavit before this Court on 28.03.2021 stating that a notification shall be issued by the State Government with the following modifications to the Government Order dated 14.03.2016: a) Clause 5 of the order dated 14.03.2016 shall be deleted; b) The ADGP of the Anti‑Corruption Bureau will have security of tenure for a minimum period of two years. He will not be transferred by the Government before the completion of his tenure of two years unless he is: i) convicted by a court of law in a criminal case or where charges have been framed against him by a court in a case involving corruption or offences which amount to moral turpitude; ii) incapacitated by physical or mental illness or otherwise becoming unable to discharge his functions as ADGP; iii) appointed to any other post with his consent; iv) subjected to dismissal, removal or compulsory retirement from service or reduction to a lower post, awarded under the provisions of the All India Services (Discipline and Appeal) Rules, 1969 or any other relevant rule; v) under suspension from service; or vi) when a prima facie case of misconduct or gross negligence is established after a preliminary enquiry., Though an affidavit was filed, learned Advocate General fairly submits that no such modification notification has been issued as of today.
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Learned Advocate General further contended that the Supreme Court of India in the case of C. Rangaswamaiah at paragraph-6 observed that even after deputation, there could be a dual role on the part of the Police Officers in their functions, namely, functions under the Lokayukta and functions in discharge of the duties entrusted to them by the State of Karnataka, under the Prevention of Corruption Act. Further, the notification issued under Section 17 of the Prevention of Corruption Act designating all Inspectors on deputation in the Lokayukta as officers competent for purposes of Section 17 of the Prevention of Corruption Act and the notification issued under Section 2(s) of the Code of Criminal Procedure designating all offices of the Lokayukta in the State as Police stations, indicated that these Police officers though on deputation, were entrusted with these powers of investigation, by virtue of statutory powers., Learned Advocate General further contended that by earlier notifications, in exercise of the powers under the provisions of Section 17 of the Prevention of Corruption Act and Section 2(s) of the Code of Criminal Procedure, extra power was assigned to Lokayukta and after it came to know that there is extra burden, the same has been withdrawn. Once the State has power to grant, it has power to withdraw also, in view of the provisions of Section 21 of the General Clauses Act., Learned Advocate General contended that the petitioners are under wrong notion that by creating Anti Corruption Bureau, the powers entrusted to Lokayukta have been withdrawn. The powers of the Lokayukta under the provisions of Karnataka Lokayukta Act have not been disturbed. The Anti Corruption Bureau is working under the provisions of the Prevention of Corruption Act as a separate wing or authority and the same is not having to do with the institution of Lokayukta, which is working under the provisions of the Karnataka Lokayukta Act and no powers of Lokayukta have been diluted as contended by the learned counsel for the petitioners. Learned Advocate General contended that the provisions of Karnataka Lokayukta Act and the provisions of the Prevention of Corruption Act are distinct., Learned Advocate General also contended that the Anti Corruption Bureau is a separate wing under the Karnataka Police Act to discharge the work assigned to it. The executive Government Order dated 14 March 2016 is a policy of the State Government and cannot be interfered with by this Court while exercising writ jurisdiction under Article 226 of the Constitution of India. The provisions of Section 4 of the Karnataka Police Act, 1963 contemplate that the superintendence of the Police Force throughout the State vests in and is exercisable by the Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence., Learned Advocate General further contended that Entry 2 of List II to the Seventh Schedule of the Constitution of India contemplates Police (including railway and village police) subject to the provisions of entry 2A of List I. It is brought to the notice of the Court that there are sixteen States in the country where both Anti Corruption Bureau and Lokayukta are in existence., State – Provisions of PC Act 1988 investigation by – Name of Institution – Head of the Institution – Administrative control – Lokayukta – Jurisdiction of Lokayukta\n1. Karnataka – Anti Corruption Bureau – DPAR – In existence – Karnataka Lokayukta Act\n2. Tamil Nadu – Directorate of Vigilance and Anti Corruption – Vigilance Commissioner – DPAR – In existence – Tamil Nadu Lokayukta and Deputy Lokayukta Act\n3. Maharashtra – Maharashtra State Anti Corruption & Prohibition Intelligence Bureau – General Director – Home Department – In existence – Maharashtra Lokayukta & Upalokayukta Act, 1971\n4. Telangana – Anti-Corruption Bureau – General Administration Department – In existence – Lokayukta Act\n5. Punjab – Vigilance Bureau, Punjab – ADGP/Chief Director – Government – In existence – Lokayukta Act\n6. Odisha – Vigilance Directorate – DG & IGP, Director of Vigilance – General Administrative Department of Govt. – In existence – Odisha Lokayukta Act\n7. Rajasthan – Anti Corruption Bureau – Director General – Government – In existence – Lokayukta Act\n8. Jharkhand – Anti Corruption Bureau – Director General – Government Vigilance Department – In existence – Jharkhand Lokayukta Act\n9. Kerala – Vigilance and Anti-Corruption Bureau – Vigilance – Reporting to Ministry of Vigilance and Home – Not In existence\n10. Gujarat – Anti Corruption Bureau – Home and Civil Supplies Department – In existence – Gujarat Lokayukta Act\n11. Goa – Directorate of Vigilance – Director – Government – In existence – Goa Lokayukta Act, 2011\n12. Assam – Vigilance and Anti Corruption – Government – In existence – Assam Lokayukta Act & Upalokayukta Act, 1985\n13. Himachal Pradesh – State Vigilance and Anti Corruption Bureau – Government – In existence – Himachal Pradesh Lokayukta Act\n14. Uttar Pradesh – Anti Corruption Organisation – Government – In existence – Uttar Pradesh Lokayukta Act\n15. Nagaland – State Vigilance Commission – Vigilance Commissioner – Government – In existence – Nagaland Lokayukta Act\n16. Sikkim – Sikkim Vigilance Police Force – Government – In existence – Sikkim Lokayukta and Deputy Lokayukta Act, Learned Advocate General further contended that the State Government issued the Government Order dated 14 March 2016 constituting Anti Corruption Bureau, in exercise of powers under Article 162 of the Constitution of India and such policy decision cannot be interfered by this Court. He would further contend that there are two types of writ petitions before this Court. One filed in the public interest and the other in personal interest and the petitioners have not made out any case to interfere with the executive order passed by the State Government and sought to dismiss the writ petitions., In support of his contentions, Learned Advocate General relied upon the following judgments: C. Rangaswamaiah v. Karnataka Lokayukta (paragraphs 7, 8, 15, 23, 24 and 29); Vineet Narain and others v. Union of India (paragraphs 40, 41 and 42); Municipal Council, Neemuch v. Mahadeo Real Estate (paragraph 13); State of Karnataka and others v. Kempaiah (paragraph 6 and 8)., Points for determination: In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these writ petitions are: (1) Whether the State Government is justified in constituting Anti Corruption Bureau by an executive Government Order dated 14 March 2016, in exercise of the powers under Article 162 of the Constitution of India, when the Karnataka Lokayukta Act, 1984 has occupied the field to eradicate corruption in the State of Karnataka, in the facts and circumstances of the present case? (2) Whether the State Government is justified in issuing the impugned notifications dated 19 March 2016 superseding the earlier notifications dated 6 February 1991, 8 May 2002 and 5 December 2002 that authorized the Lokayukta Police with powers to investigate under the provisions of the Prevention of Corruption Act, 1988 and had declared the offices of Police Wing of the Karnataka Lokayukta as Police Stations under the provisions of Section 2(s) of the Code of Criminal Procedure?, We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused all the papers including the original records carefully., Before proceeding to the merits of the case, it is relevant to refer to the statement of objects and reasons of the Karnataka Lokayukta Act, 1984 and certain important sections of the said Act., The Legislature – State Government on the basis of the recommendations of the Administrative Reforms Commission enacted the Karnataka Lokayukta Act w.e.f. 15 January 1986 for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery and abolished the Vigilance Commission, but all inquiries, investigations and other disciplinary proceedings pending before the Vigilance Commission transferred to Lokayukta., As per sub‑section (2) of Section 2 of the Karnataka Lokayukta Act, ‘Allegation in relation to a public servant’ means any affirmation that such public servant (a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; (b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; (c) is guilty of corruption, favouritism, nepotism, or lack of integrity in his capacity as such public servant; or (d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs., As per sub‑section (5) of Section 2 of the Karnataka Lokayukta Act, corruption includes anything made punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act., Sub‑section (10) of Section 2 of the Karnataka Lokayukta Act defines ‘Maladministration’, which means action taken or purporting to have been taken in the exercise of administrative functions in any case where, (a) such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; or (b) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay., As per sub‑section (12) of Section 2 of the Karnataka Lokayukta Act, ‘public servant’ means a person who is or was at any time (a) the Chief Minister; (b) a Minister; (c) a member of the State Legislature; (d) a Government Servant; (e) the Chairman and the Vice‑Chairman (by whatever name called) or a member of a local authority in the State of Karnataka or a statutory body or corporation established by or under any law of the State Legislature, including a co‑operative society, or a Government Company within the meaning of Section 617 of the Companies Act, 1956 and such other corporations or boards as the State government may, having regard to its financial interest in such corporations or boards, by notification, from time to time, specify; (f) member of a Committee or Board, statutory or non‑statutory, constituted by the Government; and (g) a person in the service or pay of, (i) a local authority in the State of Karnataka; (ii) a statutory body or a corporation (not being a local authority) established by or under a State or Central Act, owned or controlled by the State Government and any other board or corporation as the State Government may having regard to its financial interest therein, by notification from time to time, specify; (iii) a company registered under the Companies Act, 1956, in which not less than fifty‑one per cent of the paid up share capital is held by the State Government, or any company which is a subsidiary of such company; (iv) a society registered or deemed to have been registered under the Karnataka Societies Registration Act, 1960, which is subject to the control of the State Government and which is notified in this behalf in the official Gazette; (v) a co‑operative society; (vi) a university. Explanation – In this clause, ‘Co‑operative Society’ means a co‑operative society registered or deemed to have been registered under the Karnataka Co‑operative Societies Act, 1959, and ‘university’ means a university established or deemed to be established by or under any law of the State Legislature., As per sub‑section (13) of Section 2 of the Karnataka Lokayukta Act, ‘Secretary’ means the Chief Secretary, an Additional Chief Secretary, a Principal Secretary, a Secretary, or a Secretary‑II to the Government of Karnataka and includes a Special Secretary, an Additional Secretary and a Joint Secretary., The provisions of Section 3 of the Karnataka Lokayukta Act contemplate appointment of Lokayukta and Upa‑Lokayukta, which reads as under: (1) For the purpose of conducting investigations and enquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upalokayukta or Upalokayuktas. (2)(a) A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court or a person who has held the office of a Judge of a High Court for not less than ten years and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. (b) A person to be appointed as an Upalokayukta shall be a person who has held the office of a judge of a High Court for not less than five years and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. (3) A person appointed as the Lokayukta or an Upalokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule., A careful reading of the above provisions makes it clear that a person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court or a person who has held the office of a Judge of a High Court for not less than ten years and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly., The above provisions also make it clear that a person to be appointed as an Upa‑Lokayukta shall be a person who has held the office of a judge of a High Court for not less than five years and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly., In view of the above, it is clear that while appointment of either Lokayukta or Upa‑Lokayukta, the procedure as contemplated under the provisions of Sections 3(2)(a) and 3(2)(b) of the Karnataka Lokayukta Act has been followed meticulously from the date of enactment of the Karnataka Lokayukta Act i.e. from 15 January 1986 till today., The provisions of Section 4 of the Karnataka Lokayukta Act contemplate that the Lokayukta or Upalokayukta shall not be a Member of the Parliament or be a Member of the Legislature of any State and shall not hold any office of trust or profit (other than his office as Lokayukta or Upalokayukta) or be connected with any political party or carry on any business or practice any profession and accordingly, before he enters upon his office, a person appointed as the Lokayukta or an Upalokayukta shall, (a) if he is a Member of the Parliament or of the Legislature of any State, resign such membership; (b) if he holds any office of trust or profit, resign from such office; (c) if he is connected with any political party, sever his connection with it; (d) if he is carrying on any business, sever his connection (short of divesting himself of ownership) with the conduct and management of such business; (e) if he is practising any profession, suspend practice of such profession., Sub‑section (1) of Section 5 of the Karnataka Lokayukta Act contemplates that a person appointed as the Lokayukta or Upalokayukta shall hold office for a term of five years from the date on which he enters upon his office, provided that (a) the Lokayukta or an Upalokayukta may, by writing under his hand addressed to the Governor, resign his office; (b) the Lokayukta or an Upalokayukta may be removed from office in the manner provided in Section 6., Sub‑section (2) of Section 5 of the Karnataka Lokayukta Act contemplates that on ceasing to hold office, the Lokayukta or an Upalokayukta shall be ineligible for further employment to any office of profit under the Government of Karnataka or in any authority, corporation, company, society or university referred to in item (g) of clause (12) of Section 2 of the Karnataka Lokayukta Act., The provisions of Section 9 of the Karnataka Lokayukta Act deals with provisions relating to complaints and investigations. Section 10 of the Karnataka Lokayukta Act contemplates issue of search warrant; Section 12 of the Karnataka Lokayukta Act contemplates reports of Lokayukta; Section 14 of the Karnataka Lokayukta Act contemplates initiation of prosecution; and Section 15 of the Karnataka Lokayukta Act relates to the staff of Lokayukta. Sub‑section (3) of Section 15 of the Karnataka Lokayukta Act contemplates that without prejudice to the provisions of sub‑section (1), the Lokayukta or an Upa‑Lokayukta may for the purpose of conducting investigations under this Act utilise the services of, (a) any officer or investigating agency of the State Government; (aa) any officer or investigating agency of the Central Government with the prior concurrence of the Central Government and State Government; (b) any person or any other agency., By careful perusal of the provisions of the Karnataka Lokayukta Act stated supra and other provisions, it clearly depicts that the scheme ensures preservation of the right, interest and dignity of the Lokayukta or Upalokayukta and is commensurate with the dignity of all the institutions and functionaries involved in the process. It also excludes needless meddling in the process by busy bodies confining the participation in it to the Members of the Legislative Assembly or Council, Speaker/Chairman of the Legislature and the Chief Justice of the High Court of Karnataka, the highest judicial functionary in the State apart from the Lokayukta., During the year 2011, the Lokayukta while exercising powers under the provisions of the Karnataka Lokayukta Act and the Prevention of Corruption Act has made the Chief Minister and the Minister resign and has sent them to prison, creating history in the State of Karnataka and has become a model to the entire country. It is also not in dispute that at one point of time, since the son of the Lokayukta was involved in corruption charges, the Lokayukta was made to resign and that has become possible, in view of the provisions of the Karnataka Lokayukta Act and the Prevention of Corruption Act. Such was the independence of the Lokayukta and its effective functioning in the matters of utmost importance from the date of the inception of the Lokayukta in the year 1986 till 14 March 2016, the date of passing the impugned executive order under Article 162 of the Constitution of India i.e., for more than three decades., When the Karnataka Lokayukta Act was assented by the President of India, that would prevail and the field occupied cannot be eroded and the Government cannot trample upon the occupied field. It is nothing but transgression by an executive administrative order to usurp the powers of Lokayukta. The very constitution of Anti Corruption Bureau by the Government is to shield the corrupt politicians, Ministers, and the officers from the watchful eyes of the Lokayukta and that Government is weakening the institution of Lokayukta to protect these persons from prosecution, inter alia under the provisions of the Prevention of Corruption Act., As already stated supra, the Karnataka Lokayukta Act was enacted for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in administration machinery. In order to ensure effective enforcement of the Prevention of Corruption Act, in exercise of the powers conferred by the first proviso to Section 17 of the Prevention of Corruption Act, the State Government issued the notification dated 6 February 1991 authorizing all the Inspectors of Police, Office of the Karnataka Lokayukta for the purpose of the investigation., The provisions of Section 17 of the Prevention of Corruption Act read as under: ‘Persons authorised to investigate. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank, (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub‑section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (b) of sub‑section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.’, It is also not in dispute that the State Government by notifications dated 8 May 2002 and 5 December 2002 declared the offices of the Police Inspectors of Karnataka Lokayukta as Police Stations under the provisions of Clause (s) of Section 2 of the Code of Criminal Procedure., Clause (s) of Section 2 of the Code of Criminal Procedure reads as under: ‘2(s) police station means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf.’, When things stood thus, the Director General and Inspector General of Police (‘DG & IG’ for short) by a letter dated 3 February 2016 addressed to the State Government, has proposed the creation of an Anti Corruption Bureau in the State, due to the necessity of modifications required so as to enforce the Prevention of Corruption Act, keeping in perspective the judgment of the Supreme Court of India in the case of C. Rangaswamaiah. The DG & IG has informed that the duties of the officers of the Lokayukta Police Wing can be classified into two categories viz., (1) As per Section 15(1) of the Karnataka Lokayukta Act, the Police Wing is to primarily assist the Lokayukta in enforcing the Karnataka Lokayukta Act. (2) The Government of Karnataka, through its many orders, has declared the offices of the Police Inspectors of Lokayukta as Police Stations; the Police officers can investigate the cases registered under the Prevention of Corruption Act. Since such cases are out of jurisdiction of Lokayukta, the Government has issued several orders regarding the same. Thereby, the State Government proceeded to pass the impugned executive order dated 14 March 2016 under the provisions of Article 162 of the Constitution of India., A careful perusal of the impugned Government Order dated 14 March 2016 clearly depicts that the State Government, based on the recommendations of the DG & IG letter dated 3 February 2016, has constituted Anti Corruption Bureau on the following grounds: (a) In order to avoid dual duties by the Lokayukta Police. (b) There are no approved systems to supervise the cases arising from investigation of the Police Wing Officers acting under the provisions of the Prevention of Corruption Act. (c) The DG & IG recommends to withdraw the previous Government notifications dated 6 February 1991, 8 May 2002 and 5 December 2002 that authorised the Lokayukta Police with powers to investigate and had declared the offices of Police Inspectors of Lokayukta as Police Stations. (d) The DG & IG has proposed to limit the current Police wing to assist only in the effective enforcement of the Karnataka Lokayukta Act. (e) The DG & IG requested to form Anti Corruption Bureau and to provide them with the powers to investigate in an independent manner so as to independently investigate the cases referred to by the Head of the Police and the Government. (f) The independent nature of power of the Police Wing of the Karnataka Lokayukta Act as held by the Supreme Court of India in the case of C. Rangaswamaiah. (g) In view of the interim order dated 8 February 2016 made in Criminal Petition No. 5378/2014 and connected matters. (h) To reduce the burden of the Lokayukta Police., On meticulous perusal of the aforesaid reasons, it is not forthcoming as to why the DG & IG recommended to withdraw the notifications dated 6 February 1991, 8 May 2002 and 5 December 2002 that had given the Lokayukta Police the powers to investigate under the provisions of the Prevention of Corruption Act and had declared the offices of Police Inspectors of Lokayukta as Police Stations under the provisions of Section 2(s) of the Code of Criminal Procedure. It is also stated in the impugned Government Order that this Court in Criminal Petition No. 5378/2014 and connected matters has further directed the State Government to establish vigilance cells in the same lines as those established by the Central Government. The impugned Government Order merely depicts that the Government has realized the necessity of a strong and effective vigilance system, in addition to Karnataka Lokayukta to improve the quality of administration and created an Anti Corruption Bureau, thereby indirectly diluting the independent effective functioning of the Karnataka Lokayukta, which is a matter of utmost importance., If really the State Government wanted to maintain the independence of the Lokayukta, it could have strengthened the hands of Lokayukta by giving more independent power or allowed the Anti Corruption Bureau to work under the Lokayukta to eradicate corruption, favouritism and official indiscipline in administrative machinery in the entire state, in the interest of Government and in the interest of general public at large. Though the Karnataka Lokayukta Act prescribes to take action against any public servant as contemplated under Section 2(12) of the Karnataka Lokayukta Act, it is not forthcoming in the present impugned executive order as to who is the authority to take action, in case DG & IG involved in corruption, favouritism and official indiscipline in administration machinery. So also in case the Chief Minister, a Minister, a Member of the State Legislature are involved or in case ‘Secretary’ i.e., Chief Secretary, an Additional Chief Secretary etc., are involved, there is no power or authority in the impugned executive order to take action against such persons., On careful perusal of the impugned executive Government Order, it also clearly depicts that the Chief Minister is the supreme and absolutely there is no independent application of mind by the State Government before passing the impugned executive order and the same is based only on the recommendation made by the DG & IG, thereby the executive order passed by the State Government cannot be sustained., The executive order passed by the State Government constituting Anti Corruption Bureau is parallel to the institution of Karnataka Lokayukta and absolutely no reasons are assigned except stating that Government has realized the necessity of a strong and effective vigilance system in addition to Lokayukta. It is not the case of the State Government that the Karnataka Lokayukta Police Wing, which is working under the control of the Lokayukta under the provisions of Section 15(3) of the Karnataka Lokayukta Act, is not effectively implementing the provisions of the Prevention of Corruption Act nor it is the case of the Government that any general public lodged complaints against the functions of the Lokayukta or its Police Wing. It is also not the case of the State Government in the impugned executive order that the Lokayukta or an Upa‑Lokayukta expressed any inability to discharge their functions under the provisions of the Prevention of Corruption Act or expressed that it is an additional burden.
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In the absence of the Lokayukta, it is the State Government which has passed the impugned executive order, in exercise of the powers under Article 162 of the Constitution of India, mainly based on the recommendation made by the Director General and Inspector General, without independent application of mind. Thereby, the impugned order is erroneous and contrary to the provisions of the Karnataka Lokayukta Act. The State Government, while passing the impugned executive orders, has ignored the fact that the Lokayukta and Upa Lokayukta are appointed under the provisions of Section 3 of the Karnataka Lokayukta Act. Their appointment is by a consultation process with all the stakeholders, i.e., they are appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka; the Chairman, Karnataka Legislative Council; the Speaker, Karnataka Legislative Assembly; the Leader of the Opposition in the Karnataka Legislative Council; and the Leader of the Opposition in the Karnataka Legislative Assembly., It is not in dispute that when the Karnataka Lokayukta Act was enacted in the year 1984, on the recommendation made by the Administrative Reforms Commission for the purpose of improving the standards of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery, there was no necessity for the State Government to constitute an Anti Corruption Bureau parallel to the institution of the Lokayukta. A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court of India or that of the Chief Justice of a High Court, or a person who has held the office of a Judge of a High Court for not less than ten years. A person to be appointed as an Upa Lokayukta shall be a person who has held the office of a Judge of a High Court for not less than five years., It is not the case of the State Government that the Anti Corruption Bureau is a powerful independent body headed by any former Supreme Court Judge, in order to curb corruption, favouritism and official indiscipline in the administration machinery, in addition to the Lokayukta. If the Government truly intends to curb corruption, favouritism and official indiscipline, the Anti Corruption Bureau should have been allowed to work under the control of the Lokayukta as contemplated under the provisions of Section 15(3) of the Karnataka Lokayukta Act, instead of the Honourable Chief Minister as stated in the executive order. Therefore, there is more scope in the executive order for political influence and the Honourable Chief Minister in power can misuse the Anti Corruption Bureau to control his opponents within his party or the opposite parties. The conditions of the executive order clearly depict that there is a possibility to favour the party in power or the party men., Very strangely, a separate Anti Corruption Bureau is created with the following designations: 1. Additional Director General of Police (ADGP) – 1 post; 2. Inspector General of Police (IGP) – 1 post; 3. Superintendent of Police (SP) – 10 posts; 4. Deputy Superintendent of Police (DySP) – 35 posts; 5. Police Inspectors (PI) – 75 posts; 6. Head Constables/Police Constables – unspecified number of posts., In order to supervise the vigilance system in the State, a Vigilance Advisory Board has been created consisting of: 1. Chief Secretary, President of the Board; 2. Additional Chief Secretary, Internal Administration, Member; 3. Principal Secretary, Department of Finance, Member; 4. Principal Secretary, Department of Personnel and Administrative Reforms, Member; 5. Director General and Inspector General of Police (who recommended the constitution of the Anti Corruption Bureau for the Government), Member; 6. Two eminent personalities experienced and experts in the field of administration and public issues, Members; 7. Secretary, Vigilance Wing of the Department of Personnel and Administrative Reforms, Member Secretary., The Anti Corruption Bureau and the Vigilance Advisory Board are working under the direct administrative control of the State Government and they cannot act independently as the final authority is the Honourable Chief Minister. In fact, the executive order dated 14 March 2016 clearly depicts that in case the Vigilance Advisory Board, based on sufficient prima facie reasons, decides to refer the investigation to be conducted by an outside agency or organization, such matter after approval of the Chief Minister may be handed over to the Criminal Investigation Department. Therefore, one cannot expect the Vigilance Advisory Board to function independently, since even to refer the investigation to an outside agency or organization like the Criminal Investigation Department, approval of the Chief Minister must be obtained., Further, the State Government, while withdrawing the statutory notifications dated 6 February 1991, 8 May 2002 and 5 December 2002 that had given the Lokayukta Police the powers to investigate under the Prevention of Corruption Act and had declared the offices of Police Inspectors of the Karnataka Lokayukta as police stations under the provisions of Section 2(s) of the Code of Criminal Procedure, had not consulted the Lokayukta. Without consultation of the Lokayukta, statutory notifications cannot be withdrawn by the executive order of the State Government. Absolutely no independent reasons are assigned by the State Government in the executive order to constitute an Anti Corruption Bureau parallel to the Lokayukta and Upa Lokayukta, who are appointed under the provisions of the Karnataka Lokayukta Act. The executive order dated 14 March 2016 depicts that the State Government, after examining the recommendation made by the Director General and Inspector General, keeping in perspective the judgment of the Honourable Supreme Court of India in the case of C. Rangaswamaiah, has created the Anti Corruption Bureau and classified the duties of the officers of the Karnataka Police Wing into two categories. The same is an erroneous understanding of the dictum of the Honourable Supreme Court., In the case of C. Rangaswamaiah, the Honourable Supreme Court of India observed that even after deputation, there could be a dual role on the part of the police officers in their functions, namely, functions under the Lokayukta and functions in discharge of the duties entrusted to them by the State of Karnataka under the Prevention of Corruption Act, 1988. The Court further observed that though the Director General of Police newly attached w.e.f. 21 November 1992 to the Bureau of Investigation of the Lokayukta by way of an administrative order of the Government was to be in control and supervision of the police staff in the Lokayukta, and though the post of Director General of Police was not, by appropriate amendment of the recruitment rules of the Lokayukta staff, included in the cadre of posts in the Police Wing of the Lokayukta, it had to be taken that the said Director General of Police was under the administrative and disciplinary control of the Lokayukta. The Court also observed that dual functions could be performed by these officers in relation to two Acts, namely the Prevention of Corruption Act and the Karnataka Lokayukta Act, and such a situation of dual control could not be said to be alien to criminal jurisprudence concerning investigation of crimes. In other words, these officers who were of the requisite rank as per Section 17 of the Prevention of Corruption Act, 1988 could not be said to be incompetent to investigate offences assigned to them under that Act by the competent authority by virtue of statutory powers under Section 17 thereof or to that extent not excluded by the Lokayukta. The Division Bench, therefore, held that the further investigation against the petitioners could be continued through the police officers on deputation with the Lokayukta. The Court further observed that the entrustment being under statutory powers of the State traceable to Section 17 of the Prevention of Corruption Act, 1988 cannot be said to be outside the jurisdiction of the State Government. If it is done without consulting the Lokayukta and obtaining its consent, it can only be treated as an issue between the State and the Lokayukta. Such entrustment of duties has statutory backing, and obviously also the tacit approval of the Lokayukta. The Court further observed that having regard to the need to preserve its independence and effective functioning, the officers on deputation in its Police Wing will not take up any work entrusted to them by the State Government under Section 15(4) read with Section 15(2). The Court also observed that if instead of deputation of police officers from the Government, any other solution can be found, that is a matter to be decided amicably between the State Government and the Lokayukta, keeping in view the independence of the Lokayukta and its effective functioning as matters of utmost importance., In view of the above, the judgment in the case of C. Rangaswamaiah decided on 21 July 1998 will in no way assist the State Government to constitute a separate Anti Corruption Bureau for the first time on 14 March 2016, after the lapse of nearly eighteen years of the said judgment, and the State Government erroneously interpreted the judgment of the Honourable Supreme Court of India in the impugned order. On that ground also, the impugned executive order cannot be sustained., It is relevant to consider the provisions of Article 162 of the Constitution of India, on which basis the impugned executive order came to be issued, which reads as follows: ‘162. Extent of executive power of State. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.’, A plain reading of Article 162 of the Constitution of India makes it clear that, subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws, provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. When statutory powers of the Lokayukta under the Karnataka Lokayukta Act and the Rules thereof govern the field for eradication of corruption, the executive order passed by the State Government is contrary to the provisions of the Karnataka Lokayukta Act and the creation of an Anti Corruption Bureau parallel to the institution of the Lokayukta is bad in law. Executive instructions can only fill the gaps not covered by rules and cannot be in derogation of statutory rules. The executive power of the State can be exercised only on two occasions: (a) if any law or Act has been made by the State Legislature conferring any functions or any other authority, in that case the Governor is not empowered to make any order in regard to that matter in exercise of the executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to him; (b) vesting the Governor with the executive power of the State Government does not create any embargo for the Legislature of the State from making any law conferring functions on any authority subordinate to the Governor., In the present case, admittedly the Karnataka Lokayukta Act has been in force from 15 January 1986 for the purpose of improving the standards of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery. Thereby the State Government has exceeded its power to issue an executive order by constituting an Anti Corruption Bureau parallel to the institution of the Lokayukta. The impugned executive order issued by the State Government is to defunct the Lokayukta and it has virtually defeated the very purpose for which the institution of the Lokayukta has been constituted. The order only created a parallel body to achieve the same purpose with lesser intent. Therefore, the Government Order constituting the Anti Corruption Bureau is unsustainable, suffers from malafides and legal infirmities. The order has indirectly diluted the powers of the Lokayukta and the Anti Corruption Bureau cannot function either as a parallel body or an alternate body or substitute the Lokayukta. Consequently, the Government Order constituting the Anti Corruption Bureau for a function already conferred on the Lokayukta is impermissible in law., It is high time for the State Government to take necessary steps to reform the Lokayukta, to amend the provisions of the Karnataka Lokayukta Act and to abolish the Anti Corruption Bureau, and for the recommendations of the Lokayukta or Upa Lokayukta to be binding on the Government. It is for the Government to take proper steps to reform at the stage of the recruitment itself while appointing police personnel in the Karnataka Police Department., After the enactment of the Karnataka Lokayukta Act, the Lokayukta and Upa Lokayukta, in exercise of their powers, used to register criminal cases against erring public servants prior to the passing of the impugned executive order. In fact, the term ‘public servant’ is defined under the provisions of Section 2(12) of the Karnataka Lokayukta Act., The statement showing the statistics relating to criminal cases conducted against MLAs, MPs, Ministers, BBMP Corporators etc., by the Lokayukta is as follows: 1. Katta Subramanya Naidu and others – Yes, 57/2010; 2. B.S. Yediyurappa – Yes, 33/2011; 3. B.S. Yediyurappa and others – Yes, 48/2011; 4. R. Ashok and another – Yes, 51/2011; 5. Murugesh R. Nirani and others – Yes, 53/2011; 6. S. Muniraju and others – Yes, 55/2011; 7. B.S. Yediyurappa and others – Yes, 60/2011; 8. S.R. Vishwanath and others – Yes, 66/2011; 9. C.T. Ravi, former MLA – Yes, 70/2011; 10. H.D. Kumaraswamy – Yes, 02/2012; 12. Krishnappa, former MLA – Yes, 06/2012; 13. M.S. Somalingappa – Yes, 19/2012; 14. D.K. Shivakumar – Yes, 26/2012; 15. E. Krishnappa – Yes, 34/2012; 16. N. Dharamsingh – Yes, 36/2012; 17. M. Srinivasa, former – Yes, 37/2012; 18. Murugesh R. Nirani – Yes, 49/2012; 19. H.D. Kumaraswamy – Yes, 60/2012; 20. V. Somanna, former – Yes, 63/2012; 21. Roshan Baig, former – Yes, 66/2012; 22. Gowramma – Yes, 82/2012; 23. H.D. Devegowda – Yes, 84/2012; 24. Smt. Awwai – Yes, 87/2012; 25. Aravind Limbavalli – Yes, 89/2012; 26. Baburao Chinchanasooru – Yes, 92/2012; 27. Somashekara Reddy – Yes, 09/2013; 28. B. Govindaraju – Yes, 38/2013; 29. Qumrul Islam – Yes, 57/2014; 30. R.V. Deshpande – Yes, 11/2015; 31. Munirathna – Yes, 25/2015; 32. B.S. Yediyurappa – Yes, 27/2015; 33. B.S. Yeidiyurappa – Yes, 38/2015; 34. B.S. Yeidiyurappa – Yes, 39/2015; 35. B.S. Yeidiyurappa – Yes, 40/2015; 36. B.S. Yeidiyurappa – Yes, 42/2015; 37. B.S. Yeidiyurappa – Yes, 43/2015; 38. B.S. Yeidiyurappa – Yes, 44/2015; 39. B.S. Yeidiyurappa – Yes, 45/2015; 40. B.S. Yeidiyurappa – Yes, 46/2015; 41. B.S. Yeidiyurappa – Yes, 47/2015; 42. B.S. Yeidiyurappa – Yes, 48/2015; 43. B.S. Yeidiyurappa – Yes, 49/2015; 44. B.S. Yeidiyurappa – Yes, 50/2015; 45. B.S. Yeidiyurappa – Yes, 52/2015; 46. B.S. Yeidiyurappa – Yes, 53/2015; 47. B.S. Yeidiyurappa – Yes, 54/2015; 48. B.S. Yeidiyurappa – Yes, 55/2015; 49. B.S. Yeidiyurappa – Yes, 76/2015; 50. Gali Janardhan Reddy – Yes, 79/2015; 51. Veeranna Chandrashekaraiah Charanthimath – Yes, 06/2012; 52. Abhay Kumar Patil – Case transferred to Anti Corruption Bureau, 14/2012; 53. Sanjay B. Patil – Yes, 03/2014; 54. B. Sriramulu – Yes, 09/2013; 55. C.T. Ravi – Yes, 06/2014; 56. N.Y. Gopalakrishna – Yes, 09/2013; 57. Madal Virupakshappa – Yes, 28/2013; 58. Renukacharya – Yes, 05/2015; 59. Renukacharya – Yes, 06/2015; 60. Nehuru C. Olekar – Yes, 12/2011; 61. Manohar H. Tahasildar – Yes, 09/2013; 62. Raghunath Vishwanath Deshpande – Yes, 02/2014; 63. Varthur Prakash – Yes, 02/2015; 64. Varthur Prakash – Yes, 03/2015; 65. Papareddy – Yes, 01/2017; 66. Suresh Gowda – Yes, 04/2015; 67. Dr. M.R. Hulinaykar – Yes, 10/2015., The statement showing the statistics relating to criminal cases conducted against IAS officers by the Lokayukta is as follows: 1. Neeraj Rajkumar – Yes, 26/1989; 2. J. Alexander – Yes, 14/1990; 3. B.S. Patil – Yes, 23/2019; 4. Maheshwar – Yes, 52/1994; 5. Ramamurthy – Yes, 47/1998; 6. I.R. Perumal – Yes, 02/2000; 7. N. Vijayabhaskar – Yes, 06/2002; 8. I.S.N. Raju – Yes, 09/2004; 9. Baburao – Yes, 14/2008; 10. S. Lakshman Singh – Yes, 23/2008; 11. I.D.S. Ashwath – Yes, 63/2011; 12. Mohammad A. Sadiq – Yes, 72/2011; 13. M.V. Veerabhadraiah – Yes, 73/2011; 14. Siddaiah – Yes, 74/2011; 15. Siddaiah Bharath Lal Meena Subhi Harisingh Veerabhadraiah – Yes, 18/2012; 16. Shamla Iqbal – Yes, 20/2012; 17. Shamla Iqbal – Yes, 25/2012; 18. Syed Zameer Pasha – Yes, 53/2012; 19. Veerabhadraiah – Yes, 57/2012; 20. N.K. Ayappa – Yes, 80/2012; 21. N.K. Ayappa – Yes, 85/2012; 22. Bharath Lal Meena – Yes, 89/2012; 23. Rajaneesh Goel – Yes, 04/2013; 24. Ramesh Bindurao Zalki – Yes, 63/2013; 25. D.M. Vijayashankar – Yes, 23/2015; 26. Kapil Mohan – Yes, 64/2015; 27. Rajneesh Goel – Yes, 10/2012; 28. N.S. Channappagowda – Yes, 11/1994., The statement showing the statistics relating to criminal cases conducted against IPS officers by the Lokayukta is as follows: 1. Javadagi, DIG – Yes, 16/2003; 2. Srinivas Yer – Yes, 38/2007; 3. M.C. Narayanagowda – Yes, 07/2009; 4. Dr. Krishnamurthy – Yes, 95/2012; 5. Srikantappa – Yes, 02/2018; 6. Srikantappa – Yes, 03/2008; 7. Chandrashekaraiah – Yes, 05/2006; 8. Srikantappa – Yes, 05/2008., After conducting enquiry, the Lokayukta/Upa Lokayukta send the report/recommendations to the Government as contemplated under the provisions of Section 12(3) of the Karnataka Lokayukta Act. Examples include: Case LOK/BCD/3756/2014 – Mahadev Prasad, Minister of Co‑Operation, Vidhana Soudha, Bangalore; Case LOK/BCD/3756/2014 – Krishna Byregowda, Agriculture Minister, Bangalore., Further reports sent to the Government in respect of IAS, IPS and IFS officers include: Complaint No. ARE‑9 – Sri R. Ramanna, Chief Accounts Officer, Mandya, dated 29/08/2008, RDPR Closed; Complaint No. LOK/BCD/4059/2014 – Narayana Swamy Y.A., Constituency, Bangalore‑94; Complaint No. LOK/BGM/816/2019 – Sri Shrikant L. Ghotnekar, Member of Karnataka Legislative Council, Uttara Kannada District; Complaint No. ARE‑1 – Bharat Lal Meena, Commissioner, Bangalore Development Authority, Kumara Park West, Bangalore, 17/05/2014, BOA Closed; Complaint No. ARE‑1 – Manjunath Prasad, IAS, Managing Director, K.H. Road, Shanthinagar, Bangalore, 20/11/2018, TRANSPORT Go recorded; and many others as listed in the record., It is also relevant to refer to Karnataka Lokayukta crime statistics from 26 May 1986 to 30 June 2022 (Disposals). The data show the number of convictions, acquittals, discharges, abatements and FIR quashings for each year within that period., It is also relevant to refer to the powers of Lokayuktas in different states in respect of registration of FIRs and filing of reports under Section 173 of the Code of Criminal Procedure, which are as follows: 1. Madhya Pradesh – Yes; the Superintendence of investigation by the Madhya Pradesh Special Police Establishment is vested in the Lokayukta appointed under the MP Lokayukta and Uplokayukta Act, 1981, which is empowered to investigate and file charge sheets for offences punishable under the Prevention of Corruption Act, 1988. 2. Uttarakhand – Yes; Section 12 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 3. Himachal Pradesh – Yes; Section 11 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 4. Mizoram – Yes; Section 11 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Mizoram Lokayukta Act, Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 5. Manipur – Yes; Section 12 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Manipur Prevention of Specific Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 6. Meghalaya – Yes; Section 12 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Meghalaya Prevention of Specific Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 7. Sikkim – Yes; Section 11 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Sikkim Lokayukta Act, Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 8. Arunachal Pradesh – Yes; Section 12 empowers investigation of offences under the Prevention of Corruption Act, 1988 or the Arunachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 and filing of final report under Section 173 CrPC. 9. Nagaland – Yes; notwithstanding anything contained in Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, Section 26 of the Nagaland Lokayukta Act confers power on the Lokayukta to grant sanction for prosecution for any matter pending before it. The organizational structure on the official website of the Nagaland Lokayukta describes the head of the police wing as IGP and Director and OC Nagaland Lokayukta Police Station., The material on record clearly depicts that after the creation of the Anti Corruption Bureau w.e.f. 14 March 2016, the Anti Corruption Bureau has not registered any criminal cases against Ministers, MPs, MLAs or MLCs, but only registered a few cases against some authorities and conducted raids. No material is produced by the Government or the Anti Corruption Bureau to prove that the Anti Corruption Bureau is more powerful than the Lokayukta for the purpose of improving the standards of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery. In fact, the creation of the Anti Corruption Bureau is only to protect vested interests and not to protect the interest of the general public at large. It is high time for the State Government or its authorities to act as a trustee of society and, in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of political, social, economic and constitutional policies to integrate the nation, and to achieve excellence and efficiency in public administration.
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A public servant entrusted with duty and power to implement constitutional policy under Articles 14, 21 and 300 of the Constitution of India and all inter‑related directive principles of state policy under the Constitution should exhibit transparency in implementation and be accountable for due effectuation of constitutional goals. Further, the Government should allow the Lokayukta/Upa‑Lokayukta to work independently without intervention or undue influence from anybody so that a citizen of the State can redress a grievance before them without fear or favour., Even though we obtained independence about 75 years ago through the struggle of our forefathers, who fought for our freedom by shedding their blood, unfortunately we are not in a position to eradicate corruption to date because successive governments have not taken drastic steps in that direction. Though the Karnataka Lokayukta came into force with effect from 15 January 1986, it worked independently only until 14 March 2016, the date on which the impugned executive order was passed., Unfortunately, the institution of Lokayukta has been diluted by the executive order passed by the State Government by creating the Anti‑Corruption Bureau, thereby indirectly making the authority of Lokayukta and Upa‑Lokayukta paper tigers without any teeth or claws, which is impermissible. The legislative intent behind the Karnataka Lokayukta Act is that public servants covered by the Act should be answerable for their actions to the Lokayukta and Upa‑Lokayukta, and such authorities should be armed with appropriate powers and sanctions so that their orders and opinions do not become mere paper directions. The decisions of the Lokayukta and Upa‑Lokayukta, therefore, must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers. Hence, it is high time for the State Government to strengthen the institution of Lokayukta and Upa‑Lokayukta and restore its glory., It is also relevant to state at this stage that the Lokayukta and Upa‑Lokayukta are appointed under the provisions of Section 3(2)(a) and 3(2)(b) of the Karnataka Lokayukta Act on the advice tendered by the Chief Minister in consultation with several constitutional authorities. If the Government and constitutional authorities are truly interested in public welfare and the development of Karnataka, they should take a conscious and unanimous decision to recommend persons with a track record of integrity, competence and fairness in both public and personal life to the posts of Lokayukta and Upa‑Lokayukta, uninfluenced by caste, creed, etc., and maintain transparency in the appointment. The appointment should be non‑political and the posts of Lokayukta and Upa‑Lokayukta should not be accommodation centres for anybody. The Government should allow the authorities to work independently without fear or favour, for the purpose of improving the standards of public administration by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administrative machinery. In addition, the Administrative and Enquiry Wing, Technical Wing, Police Wing and General Wing of the Lokayukta, as contemplated under the first schedule of Rule 6(2) of the Karnataka Lokayukta (C & R etc.) Rules, 1988, should also be strengthened by appointing honest persons., It is high time for the Legislature and the judiciary to curb the menace of corruption, which is more dangerous to future generations than the disease of cancer and also a major obstacle to the growth of India and, in particular, the State of Karnataka. If a public servant convicted of corruption is allowed to continue to hold public office, it would impair the morale of other persons manning such office and consequently erode the already diminished confidence of the people in such institutions, besides demoralising other honest public servants who would be colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspicion of the conviction, the fallout would be a shaking of the system itself., The Supreme Court of India, while considering the provisions of Section 389(1) of the Code of Criminal Procedure, Article 311(2) of the Constitution of India and Section 13(2) of the Prevention of Corruption Act in the case of K.C. Sareen v. Central Bureau of Investigation, Chandigarh, at paragraphs 11 and 12, held as follows: Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises, corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, public interest suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently erode the already shrunken confidence of the people in such public institutions besides demoralising the other honest public servants who would be colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be a shaking of the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction., The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision., The Supreme Court of India, while considering the provisions of Sections 19(1) and 22 of the Prevention of Corruption Act in the case of Subramanian Swamy v. Manmohan Singh, has strongly condemned corruption in the country as follows: Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti‑corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say, in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption over the one which seeks to perpetuate it., It is also not in dispute that India is a Member of the United Nations Convention Against Corruption where certain measures were adopted for preventing corruption. Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish. Article 36 of the United Nations Convention Against Corruption relates to specialized authorities and contemplates that each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such body or bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such body or bodies should have the appropriate training and resources to carry out their tasks., It is also relevant to state at this stage that the Lokpal and Lokayuktas Act, 2013 is enacted to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. Section 63 of the Lokpal and Lokayuktas Act, 2013 specifically mandates that every State shall establish a body to be known as the Lokayukta for the State, if not already established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act., The object of the Prevention of Corruption Act is to consolidate and amend the law relating to prevention of corruption and matters connected thereto, thereby strengthening the Lokayukta and Upa‑Lokayukta is inevitable and it is high time to say goodbye to the Anti‑Corruption Bureau, to strengthen the institution of Lokayukta, which is functioning under the provisions of the Karnataka Lokayukta Act., It is an undisputed fact that the Lokayukta as an institution has all the trappings of a police station conferred on it by virtue of several provisions of the Karnataka Lokayukta Act and Rules framed thereunder. Section 14 of the Karnataka Lokayukta Act makes it clear that whenever sanction of the Competent Authority is required for prosecution and if such action is required to be taken by the Lokayukta/Upa‑Lokayukta, it is deemed to have been granted. When the power of investigation is conferred on the Lokayukta or Upa‑Lokayukta and the Police Wing is attached to the institution of Lokayukta as per the statutory provisions, it cannot be reasonably imagined that in the course of the investigation, even if commission of an offence is detected either by the Lokayukta or by the Upa‑Lokayukta, they will not have jurisdiction to deal with the matter and that they have to be only a helpless spectator to condone the offences committed. The object of the legislation is to bring about transparency in the administration and that could be brought about by initiating both criminal and disciplinary proceedings. It cannot be contended that the Lokayukta or Upa‑Lokayukta or the Police Wing have no power to initiate criminal proceedings and conduct an investigation on that behalf. The power of initiating prosecution includes all the incidental power that is required to complete the investigation., As already stated supra, the Karnataka Lokayukta Act is a self‑contained code providing for investigation, filing of complaint and all other incidental matters with the police attached to the Lokayukta institution by virtue of statutory provisions. Thereby, when the Karnataka Lokayukta Act is holding the field, it is not permissible for the State, in exercise of its executive power under Article 162 of the Constitution of India, to constitute an Anti‑Corruption Bureau to nullify the power conferred on the Lokayukta as an institution under the Karnataka Lokayukta Act., Our view is fortified by the judgment of the Supreme Court of India in the case of I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, Andhra Pradesh, wherein it is held as follows: Where the field is occupied by an enactment the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a law made by a competent Legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which the Legislature of a State has the power to make laws. Thereby, the very notification issued by the State Government dated 14 March 2016 constituting the Anti‑Corruption Bureau cannot be sustained., The Supreme Court of India, in the case of Subramanian Swamy v. Director, Central Bureau of Investigation and another, at paragraphs 54, 57, 58, 59, 64, 69 and 70, held as follows: Powers of investigation which are governed by statutory provisions cannot be curtailed by any executive instruction. The law does not classify offenders differently for investigation and prosecution according to their status in life; every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as decision‑making officers. However, where the accusation of corruption is based on direct evidence, there is no rational basis to classify them differently. Cases of bribery, including trap cases, are outside the scope of the Single Directive. Possession of disproportionate assets is also based on direct evidence and the Single Directive cannot include such cases. Classification based on status for inquiry or investigation into offences under the Prevention of Corruption Act, 1988, is not permissible under Article 14 as it defeats the purpose of finding prima facie truth. No distinction can be made between public servants, irrespective of their status, for investigation of offences under the Prevention of Corruption Act, 1988. The Court reiterated that however high one may be, the law is above you, and Section 6‑A offends this principle and effectively Article 14., The Supreme Court of India, while considering the provisions of Section 3(2)(a) and (b) of the Karnataka Lokayukta Act in the case of Justice Chandrashekaraiah v. Janekere C. Krishna and others, at paragraphs 36, 37, 106, 107 and 112, held as follows: The Lokayukta or Upa‑Lokayukta under the Act are established to investigate and report on allegations or grievances relating to the conduct of public servants which includes the Chief Minister; all other Ministers and Members of the State Legislature; all officers of the State Government; Chairman, Vice‑Chairman of local authorities, corporations owned or controlled by the State Government, a company in which not less than fifty‑one per cent of the shares are held by the State Government, societies registered under the Societies Registration Act, cooperative societies and universities established by or under any law of the legislature. While exercising powers under the Act, the Lokayukta and Upa‑Lokayukta act as a quasi‑judicial authority but their functions are investigative in nature. The conditions of service of the staff of the Upa‑Lokayukta are referred to in Section 15 of the Act, which may be prescribed in consultation with the Lokayukta so that the staff may act without fear in the discharge of their functions. Section 15 also enables the Upa‑Lokayukta to utilise the services of any officer or investigating agency of the State or even of the Central Government, with prior concurrence. The officers and other employees of the Upa‑Lokayukta are under the administrative and disciplinary control of the Lokayukta. The Upa‑Lokayukta performs quasi‑judicial functions, being more than an investigator or enquiry officer, and can be described as a sui generis quasi‑judicial authority., The Supreme Court of India, while considering the provisions of Articles 14, 21, 32, 141, 142 and 144 of the Constitution of India in the case of Vineet Narain and others v. Union of India and others, at paragraphs 38, 39, 40, 41, 42 and 43, held as follows: Section 3 of the Police Act, 1861 is in pari materia with Section 4 of the Delhi Special Police Establishment Act, 1946. These sections read as follows: Section 3 of the Police Act, 1861: ‘Superintendence in the State Government. The superintendence of the police throughout a general police district shall vest in and shall be exercised by the State Government to which such district is subordinate, and except as authorised under the provisions of this Act, no person, officer or court shall be empowered by the State Government to supersede or control any police functionary.’ Sections 3 and 4 of the Delhi Special Police Establishment Act, 1946 provide that the offences to be investigated by the Special Police Establishment are as specified therein., Sections 3 and 4 of the Delhi Special Police Establishment Act, 1946 provide that the offences to be investigated by the Special Police Establishment are as specified therein.
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The Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. Superintendence and administration of the Delhi Special Police Establishment. (1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government. (2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise, with respect to that police establishment, such of the powers exercisable by an Inspector General of Police in respect of the police force in a State, as the Central Government may specify in this behalf. The meaning of the word superintendence in Section 4(1) of the Delhi Special Police Act, 1946 determines the scope of the authority of the Central Government in this context., There can be no doubt that the overall administration of the said force, i.e., the Central Bureau of Investigation, vests in the Central Government, which also includes, by virtue of Section 3, the power to specify the offences or classes of offences which are to be investigated by it. The general superintendence over the functioning of the Department and specification of the offences which are to be investigated by the agency is not the same as and would not include within it the control of the initiation and the actual process of investigation, i.e., direction. Once the Central Bureau of Investigation is empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of superintendence in Section 4(1)., It is, therefore, the notification made by the Central Government under Section 3 which confers and determines the jurisdiction of the Central Bureau of Investigation to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation is to be governed by the statutory provisions under the general law applicable to such investigations. This appears to us the proper construction of Section 4(1) in the context, and it is in harmony with the scheme of the Act, and Section 3 in particular. The word superintendence in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the Central Bureau of Investigation contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to the Central Bureau of Investigation to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the Act cannot be accepted. The jurisdiction of the Central Bureau of Investigation to investigate an offence is to be determined with reference to the notification issued under Section 3 and not by any separate order not having that character., This view does not conflict with the decision in J.A.C. Saldanha [(1980) 1 Supreme Court Cases 554 : 1980 Supreme Court Cases (Criminal) 272] as earlier indicated. In Saldanha the question was whether an unsatisfactory investigation already made could be undertaken by another officer for further investigation of the offence so that the offence was properly investigated as required by law, and it was not to prevent the investigation of an offence. The Single Directive has the effect of restraining recording of a First Information Report and initiation of investigation and not of proceeding with investigation, as in Saldanha. No authority to permit control of statutory powers exercised by the police to investigate an offence within its jurisdiction has been cited before us except K. Veeraswami [(1991) 3 Supreme Court Cases 655 : 1991 Supreme Court Cases (Criminal) 734] which we have already distinguished. The view we take accords not only with reason but also with the very purpose of the law and is in consonance with the basic tenet of the rule of law., Once the jurisdiction is conferred on the Central Bureau of Investigation to investigate an offence by virtue of notification under Section 3 of the Act, the powers of investigation are governed by the statutory provisions and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) thereof. This result follows from the fact that conferment of jurisdiction is under Section 3 of the Act and exercise of powers of investigation is by virtue of the statutory provisions governing investigation of offences. It is settled that statutory jurisdiction cannot be subject to executive control., There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a prerequisite for the court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the Central Bureau of Investigation to investigate the offence by virtue of the notification under Section 3 of the Act. The word superintendence in Section 4(1) of the Act in the context must be construed in a manner consistent with the other provisions of the Act and the general statutory powers of investigation which govern investigation even by the Central Bureau of Investigation. The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the Act can be harmonised with Section 3 and the other statutory provisions., The Supreme Court of India, while considering the provisions of Section 3 of the Gujarat Lokayukta Act with regard to public accountability, vigilance and prevention of corruption, in the case of State of Gujarat and another versus Justice R. A. Mehta (Retired) and others, at paragraphs 85 to 89, held as follows: Paragraph 85: Without reference to any constitutional provision or any judgment of this Court referred to earlier, even if we examine the statutory provisions of the Act, the statutory construction itself mandates the primacy of the opinion of the Chief Justice for the simple reason that Section 3 provides for the consultation with the Chief Justice. Section 6 provides for the removal of Lokayukta and lays down the procedure for such removal. The same can be done only on proven misconduct in an inquiry conducted by the Chief Justice or his nominee with respect to specific charges. Section 8(3) further provides for recusal of the Lokayukta in a matter where a public functionary has raised the objection of bias and whether such apprehension of bias actually exists or not shall be determined in accordance with the opinion of the Chief Justice. Paragraph 86: The purpose of giving primacy of opinion to the Chief Justice is because he enjoys an independent constitutional status, and also because the person eligible to be appointed as Lokayukta is from among the retired Judges of the High Court and the Chief Justice is, therefore, the best person to judge their suitability for the post. While considering the statutory provisions, the Supreme Court of India has to keep in mind the Statement of Objects and Reasons published in the Gujarat Gazette (Extraordinary) dated 1‑8‑1986, as it reveals that the purpose of the Act is also to provide for the manner of removal of a person from the office of the Lokayukta and the Bill ensured that the grounds for such removal are similar to those specified for the removal of the Judges of the High Court. Paragraph 87: As the Chief Justice has primacy of opinion in the said matter, the non‑acceptance of such recommendations by the Chief Minister remains insignificant. Thus, it clearly emerges that the Governor, under Section 3 of the 1986 Act, has acted upon the aid and advice of the Council of Ministers. Such a view is taken considering the fact that Section 3 of the 1986 Act does not envisage unanimity in the consultative process. Paragraph 88: Leaving the finality of choice of appointment to the Council of Ministers would be akin to allowing a person who is likely to be investigated to choose his own judge. Additionally, a person possessing limited power cannot be permitted to exercise unlimited powers. Paragraph 89: However, in light of the facts and circumstances of the case, it cannot be held that the process of consultation was incomplete and was not concluded as per the requirements of the 1986 Act., The Supreme Court of India, in the case of Ashwini Kumar Upadhyay versus Union of India, in respect of the State of Tamil Nadu, observed as follows: The Court, by its judgment/order dated 27 April 2017 passed in Writ Petition (Civil) No. 245 of 2014 [Common Cause: A Registered Society versus Union of India reported in (2017) 7 Supreme Court Cases 158], had already expressed the view that the appointment of the Lokpal need not await the finalisation of the amendment to the Central Act. In such circumstances, we are constrained to observe that the stand taken by the State of Tamil Nadu with regard to the establishment of the institution of Lokayukta on the grounds stated in the affidavit is not acceptable. As the State is duty‑bound under Section 63 of the Lokpal and Lokayuktas Act, 2013 to bring in place the institution of Lokayukta, we direct the State to take necessary action in the matter and report compliance of the progress made and the stage reached on the next date fixed, i.e., 10 July., The Supreme Court of India, while considering the provisions of Section 15 of the Karnataka Lokayukta Act and Section 17 of the Prevention of Corruption Act in the case of C. Rangaswamaiah and others versus Karnataka Lokayukta and others, at paragraph 19, dealt with the crucial question as to whether the Director General of Police in the office of the Lokayukta, who is to supervise the work of the police officers on deputation in the Lokayukta, is independent and outside the administrative and disciplinary control of the Lokayukta. The Court agreed with the Division Bench, differing from the learned Single Judge, that although the newly created post of Director General of Police in the office of the Lokayukta was created on 21‑12‑1992 by an administrative order and the relevant recruitment rules of the staff of the Lokayukta were not amended to bring the said post into the cadre under the Lokayukta, the post created in the Lokayukta Police Wing was intended to be and must be treated as part of the staff of the Lokayukta in the Police Wing. It is well settled that administrative orders even creating posts can be issued so long as they are not inconsistent with rules, that is, as long as there is no prohibition in the statutory rules for creation of such posts. The learned Single Judge's view that the independence of the Lokayukta was under threat was mainly based upon his decision that the post of the Director General created on 21‑12‑1992 was outside the control of the Lokayukta. This view, in the Court's opinion, is not correct for the reasons mentioned above., The Court held that, while it is true that as per the notification dated 21‑11‑1992 issued by the Government, the Police Wing in the Lokayukta is to be under the general and overall control of the said Director General of Police, still, in the Court's opinion, the said staff and, for that matter, the Director General himself are under the administrative and disciplinary control of the Lokayukta. This result, even if it is not achieved by the express language of Section 15(4), is achieved by the very fact that the Director General's post is created in the office of the Lokayukta and keeping the Police Wing therein under control and supervision of the said Director General, the State of Karnataka did not intend to remove the Police Wing or the Director General from the administrative and disciplinary jurisdiction of the Lokayukta nor did the State intend to interfere with the independent functioning of the Lokayukta and its police staff., The Court observed that the next question is whether, when the State Government had sent the police officers on deputation to the Lokayukta, it was permissible for the Government to entrust them with additional duties under the Prevention of Corruption Act, 1988. In the Court's view, if the State Government wants to entrust such extra work to the officers on deputation with the Lokayukta, it can certainly inform the Lokayukta of its desire to do so. If the Lokayukta agrees to such entrustment, there will be no problem. But if, for good reasons, the Lokayukta thinks that such entrustment of work by the State Government is likely to affect its functioning or its independence, it can certainly inform the State Government accordingly. In case the State Government does not accept the viewpoint of the Lokayukta, it will be open to the Lokayukta, having regard to the need to preserve its independence and effective functioning, to take action under Section 15(4) (read with Section 15(2)) and direct that these officers on deputation in its Police Wing will not take up any such work entrusted to them by the State Government., The Court further held that once the Lokayukta has, as in the present case, not objected at the threshold to such entrustment of work by the State Government to the officers on deputation, it will not normally be reasonable for the Lokayukta to object to the said entrustment when these officers are halfway through the extra work. Such withdrawal by the Lokayukta at a later stage might create various administrative problems and will only help the public servants against whom investigation is being done to raise unnecessary legal issues. In the present case, it is not the Lokayukta which has raised any objection but the public servants against whom the investigation is going on who have raised objections. As already stated, they cannot raise objections if the Lokayukta has not raised any objection at the threshold. The Court considered that this will take care of the independence and effective working of the Lokayukta and at the same time will enable the State of Karnataka, if need be, to exercise its statutory powers under Section 17 of the Prevention of Corruption Act., The Court noted that, in the matters before it, there has been no objection by the Lokayukta at the initial stage of the entrustment of work under Section 17 of the Central Act to these police officers on deputation. It is therefore not possible to interdict the further investigation by these officers at this stage at the instance of the public servants. As stated above, if no objection has come from the Lokayukta at the time of initial entrustment, it is certainly not permissible for the public servants against whom the investigation is being done to raise objection. The Division Bench was right in holding that the memorandum dated 2‑9‑1997 issued by the Lokayukta is, in fact, purely consequential to the judgment of the learned Single Judge and, in declaring the same to be invalid, also redundant., The Court added that if, instead of deputation of police officers from the Government, any other solution can be found, that is a matter to be decided amicably between the State Government and the Lokayukta, keeping in view the independence of the Lokayukta and its effective functioning as matters of utmost importance., The Supreme Court of India, while considering the provisions of Section 3(3) and Section 8A(2) of the Commissions of Inquiry Act and Section 21 of the General Clauses Act in the case of State of Madhya Pradesh versus Ajay Singh and others, at paragraph 17, held as follows: The Commissions of Inquiry Act, 1952 was enacted to provide for the appointment of commissions of inquiry and for vesting such commissions with certain powers. Section 2 of the Act contains definitions. Section 3 provides for appointment of a commission of inquiry. Sub‑section (1) of Section 3 lays down that a commission of inquiry for the purpose of making an inquiry into any definite matter of public importance may be appointed by the appropriate Government if it is of opinion that it is necessary to do so and shall make such an appointment if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette. Sub‑section (2) of Section 3 says that the commission may consist of one or more members appointed by the appropriate Government, and where the number is more than one, one of them may be appointed as the Chairman. Sub‑section (3) of Section 3 enables the appropriate Government to fill any vacancy which may arise in the office of a member of the commission, whether consisting of one or more than one member, at any stage of an inquiry. Sub‑section (4) of Section 3 requires the appropriate Government to cause to be laid before each House of Parliament or, as the case may be, the legislature of the State, the report, if any, of the commission of inquiry together with a memorandum of the action taken thereon, within a period of six months from the submission of the report by the commission to the appropriate Government. Section 4 prescribes that the commission shall have the powers of a civil court while trying a suit under the Code of Civil Procedure in respect of the matters mentioned therein. Section 5 deals with the additional powers of the commission. Section 5‑A relates to the power of the commission for conducting investigation pertaining to inquiry. Section 5‑B deals with the power of the commission to appoint assessors. Section 6 provides for the manner of use of the statements made by persons to the commission. Section 6‑A provides that some persons are not obliged to disclose certain facts. Section 7 deals with the manner in which a commission of inquiry appointed under Section 3 ceases to exist in case its continuance is unnecessary. It provides for a notification in the Official Gazette by the appropriate Government specifying the date from which the commission shall cease to exist if it is of the opinion that the continued existence of the commission is unnecessary. Where a commission is appointed in pursuance of a resolution passed by Parliament or, as the case may be, the Legislature of the State, then a resolution for the discontinuance of the commission is also to be passed by it., Section 8‑A provides that the inquiry is not to be interrupted by reason of vacancy or change in the constitution of the commission and it shall not be necessary for the commission to commence the inquiry afresh; the inquiry may be continued from the stage at which the change took place. Section 8‑B prescribes that persons likely to be prejudicially affected by the inquiry must be heard. Section 8‑C deals with the right of cross‑examination and representation by a legal practitioner of the appropriate Government, every person referred to in Section 8‑B and, with the permission of the commission, any other person whose evidence is recorded by the commission. Sections 9, 10 and 10‑A relate to ancillary matters while Section 12 contains the rule‑making power of the appropriate Government. Section 11 provides that the Act is to apply to other inquiring authorities in certain cases and where the Government directs that the said provisions of this Act shall apply to that authority and issues such a notification, that authority shall be deemed to be a commission appointed under Section 3 for the purposes of this Act., The Court observed that, by virtue of Section 11, the commission of inquiry appointed in the present case is deemed to be a commission appointed under Section 3 for the purposes of the Act because the commission was constituted by a resolution of the Government pursuant to the direction of the Madhya Pradesh High Court in the writ petition filed in public interest by Kailash Joshi. For the purposes of this case, the material provisions of the enactment are Sections 3, 7 and 8‑A apart from Section 21 of the General Clauses Act, 1897, with reference to which the rival contentions were made., The Supreme Court of India, while considering the provisions of Section 3(1)(a), Section 7 and Section 2(h) of the Odisha Lokpal and Lokayuktas Act, 1995 in the case of Justice K. P. Mohapatra versus Sri Ram Chandra Nayak and others, at paragraphs 11 and 12, held as follows: Paragraph 11: Further, Section 4(1) inter alia provides that a Lokpal or Lokayukta should not be connected with any political party. In any case, if he is connected, he is required to sever the connection on being appointed to the said post. That means, he must be an independent non‑political person. Under Section 7, the Lokpal has inter alia to investigate any action which is taken by or with a general or specific approval of the Chief Minister or a Minister or a Secretary, in a case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Lokpal, the subject of a grievance or an allegation. The word “Minister” is defined under Section 2(i) to mean a member of the Council of Ministers and includes the Chief Minister, Deputy Chief Minister, a Minister of State, a Deputy Minister and the Leader of the Opposition or a Parliamentary Secretary. Paragraph 12: In the context of the aforesaid functions of the Lokpal and the required qualification of a person who is to be appointed to hold such office, the word “consultation” used in Section 3 is required to be interpreted. As provided under Section 3, a person is not qualified to be appointed as Lokpal unless he is or has been a Judge of the Supreme Court or of a High Court. In the context of the functions which are to be discharged by the Lokpal, it is apparent that they are of utmost importance in seeing that unpolluted administration of the State is maintained and maladministration as defined under Section 2(h) is exposed so that appropriate action against such maladministration and administrator could be taken. The investigation which the Lokpal is required to carry out is of a quasi‑judicial nature which would envisage not only knowledge of law, but also of the nature and work which is required to be discharged by an administrator.
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In this context, the word 'consultation' used in Section 3(1) proviso (a) would require that consultation with the Chief Justice of the High Court of Odisha is a must or a sine qua non. For such appointment, the Chief Justice of the High Court would be the best person for proposing and suggesting a person for being appointed as Lokpal. His opinion would be totally independent and he would be in a position to find out who is most suitable for the said office. In this context, primacy is required to be given to the opinion of the Chief Justice of the High Court. It is true that proviso (a) provides that Leader of the Opposition, if there is any, is also required to be consulted. Therefore, if there is no Leader of the Opposition, consultation is not required. This would indicate the nature of such consultation, which is to apprise him of the proposed action but his opinion is not binding on the Government. At the same time, his views or objections are to be taken into consideration. If something is adverse against the person proposed by the Government, he would be entitled to express his views and point it out to the Government. This, however, would not mean that he could suggest some other name and the Government is required to consider it. It would, therefore, be open to the Government to override the opinion given by the Leader of the Opposition with regard to the appointment of a Lokpal who is statutorily required to be a sitting or retired Judge of the Supreme Court or of a High Court. Under Section 3(1) of the Act, there is no question of initiation of proposal by the Leader of the Opposition., The Hon'ble Supreme Court of India, while considering police reforms and measures to insulate police machinery from political or executive interference, in the case of Prakash Singh and others v. Union of India and others, held as follows:, The Union Home Minister, in a letter dated 3‑8‑1997 sent to all State Governments, echoed the overall popular perception that there has been a general fall in the performance of the police as well as a deterioration in the policing system as a whole in the country, and expressed that the time had come to rise above limited perceptions to bring about drastic changes in the shape of reforms and restructuring of the police before the country is overtaken by unhealthy developments. He stated that the popular perception across the country is that many deficiencies in the functioning of the police have arisen largely due to an overdose of unhealthy and petty political interference at various levels, starting from transfer and posting of policemen of different ranks, misuse of police for partisan purposes and political patronage, often extending to corrupt police personnel. The Union Home Minister expressed the view that, rising above narrow and partisan considerations, it is of great national importance to insulate the police from the growing tendency of partisan or political interference in the discharge of its lawful functions of prevention and control of crime, including investigation of cases and maintenance of public order., For separation of investigation work from law and order, even the Law Commission of India in its 154th Report had recommended such separation to ensure speedier investigation, better expertise and improved rapport with the people, without, of course, any watertight compartmentalisation, in view of both functions being closely interrelated at the ground level., Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of the rule of law; (iii) pendency of even this petition for the last over ten years; (iv) the fact that various commissions and committees have made recommendations on similar lines for introducing reforms in the police set‑up in the country; and (v) total uncertainty as to when police reforms would be introduced, the Court thought that there cannot be any further wait, and the stage has come for issuing appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations. It may further be noted that the quality of the criminal justice system in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions. Nearly ten years back, in Vineet Narain v. Union of India [(1998) 1 SCC 226 : 1998 SCC (Cri) 307], this Court noticed the urgent need for the State Governments to set up the requisite mechanism and directed the Central Government to pursue the matter of police reforms with the State Governments and ensure the setting up of a mechanism for selection, appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendent of Police and above. The Court expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons, which has not only a demoralising effect on the police force but is also alien to the envisaged constitutional machinery. It was observed that apart from demoralising the police force, it has also the adverse effect of politicising the personnel and, therefore, it is essential that prompt measures are taken by the Central Government., The preparation of a model Police Act by the Central Government and enactment of new Police Acts by the State Governments providing therein for the composition of the State Security Commission are things we can only hope for at present. Similarly, we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever, thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the rule of law, treating everyone equally and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system. It is not possible or proper to leave this matter only with an expression of hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments., It is also not in dispute that the Lokpal and Lokayukta Act, 2013, enacted by Parliament, has provided for the establishment of the body of the Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. The provisions of the Act provide for the establishment of a separate Inquiry and Prosecution Wing and for filing of cases in accordance with the findings arrived at. Section 63 of the Lokpal and Lokayukta Act requires every State to establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries. Though it is not so expressly provided, such Lokayukta is expected to have the same powers as the Lokpal. Further, though the Legislature of Karnataka had prior to that established the Lokayukta in the year 1986 and from 1986 till 14‑3‑2016, the date of passing the impugned executive order, the Lokayukta dealt with complaints relating to corruption against certain public functionaries, the said Lokayukta does not have the same powers as the Lokpal under the Lokpal Act, 2013. Moreover, the provisions of Section 63 required the State Legislature to make such an enactment within one year from the date of commencement of the Lokpal Act, 2013. Therefore, it is high time for the State Government to provide for establishment of a separate Inquiry and Prosecution Wing and for filing of cases in accordance with the findings arrived at. On that ground also the impugned executive order cannot be sustained., In light of the settled legal position, it is not possible to accede to the submission of the learned Advocate General that the Lokayukta has no power to call for records in a preliminary inquiry. The exercise of calling for records was to satisfy that there was a prima facie case to proceed with. The objections raised by the State Government, in view of the executive order, are purely technical and the contention of the State Government that they are withdrawing extra powers assigned to the Lokayukta by virtue of the executive order might seriously impede the statutory and independent functioning of the Lokayukta under the Karnataka Lokayukta Act. The nature of proceedings conducted by the Lokayukta or Upa‑Lokayukta are altogether different from civil and criminal suits. Unlike civil or criminal proceedings, a citizen making allegations against a public functionary may not be in possession of complete facts or documents, unless the allegation arises out of his personal transaction with any public functionary. The powers conferred on the Lokayukta are advisedly very wide and these powers are wider than those of any court of law. Notwithstanding remedies to be found in courts of law and in statutory appeals against administrative decisions, there still remains a gap in the machinery for the redressal of grievances of individuals against administrative acts or omissions. This gap should be filled by an authority which is able to act more speedily, informally and with a greater regard to the individual justice of a case than is possible by ordinary legal process of the Courts; it should not be regarded as a substitute for, or rival to, the Legislature or to the Courts, but as a necessary supplement to their work, using weapons of persuasion, recommendation and publicity rather than compulsion. The fight between an individual citizen and the State is unequal in nature. Therefore, the very existence of the Lokayukta institution will act as a check and will be helpful in checking the canker of corruption and maladministration. Moreover, when it has been repeatedly asserted that the canker of corruption, in the proportions it is said to have attained, may well dig into the vitals of our democratic State and eventually destroy it (as stated in the book called *Corruption Control of Maladministration* by John D. Monteiro)., The provisions of the Karnataka Lokayukta Act, which is enacted for the eradication of the evil of corruption and maladministration, must be construed liberally so as to advance the remedy. In our opinion, there is absolutely no merit in the impugned executive order passed by the State Government, in exercise of the powers under Article 162 of the Constitution of India, and the impugned order cannot be sustained. It is also not in dispute that before enacting the Karnataka Lokayukta Act, public opinion had been agitated for a long time over the prevalence of corruption in the administration and it is likely that cases coming before independent authorities like the Lokayukta or Upa‑Lokayukta might involve allegations or actual evidence of corrupt motive and favouritism. We think that the institution of the Lokayukta should deal with such cases as well., The main features of the institutions of Lokpal and Lokayukta are as follows: (a) They should be demonstrably independent and impartial. (b) Their investigations and proceedings should be conducted in private and should be informal in character. (c) Their appointment should, as far as possible, be non‑political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive Government., We have no doubt that the working of the institution of the Lokayukta in Karnataka will be watched with keen expectation and interest by the other states in India. We hope that this aspect would also be fully borne in mind by the Government in considering the urgency and importance of the independence of the Lokayukta. A Lokayukta is to function as a sentinel to ensure a corruption‑free administration., As already stated supra, the object of the Karnataka Lokayukta Act and the Prevention of Corruption Act was to achieve the common object and goal of a corruption‑free society. The common man has immense faith in the institution of the Karnataka Lokayukta and also its Police Wing, that too after handling investigations relating to the mining scam. Earlier, the common man could have filed a complaint against anybody to set the law into motion under the Prevention of Corruption Act and there was no bureaucratic impediment or decision required to initiate the proceedings against a complaint. However, the Anti Corruption Bureau was set up abruptly with an intention to take control of the pending investigations against the high functionaries of the State, bureaucrats etc. In order to protect and scuttle the investigation against political class and bureaucrats, Government Order dated 14‑3‑2016 was issued constituting the Anti Corruption Bureau as authority for investigation under the Prevention of Corruption Act, thereby indirectly defeating the very purpose of the Karnataka Lokayukta Act. As per the provisions of the Code of Criminal Procedure, the complainant himself should not be an Investigating Officer. As per the impugned executive order, if any complaint is filed against the Chief Minister or the Minister in the Council of Ministers, the Chief Minister himself has to oversee the investigation and also permit investigation, thereby the impugned executive order is opposed to the rule of law and contrary to the dictum of the Hon'ble Supreme Court of India in the case of C. Rangaswamaiah. The impugned Government Order constituting the Anti Corruption Bureau empowers the Hon'ble Chief Minister to veto investigation or the sanction of investigation. This itself defeats the very purpose of the Anti‑Corruption Drive and the Anti Corruption Bureau is not at all an independent body. The police force of the Anti Corruption Bureau works under the authority of the Hon'ble Chief Minister and any independent investigation is only a mirage. No serving officers would be in a position to conduct an enquiry against the Hon'ble Chief Minister under whom they would be working as subordinates. Therefore, by the constitution of the Anti Corruption Bureau, the basic investigation apparatus/mechanism is dysfunctional. The Anti Corruption Bureau is constituted virtually to defeat the very purpose of the Prevention of Corruption Act itself. The State is bent upon saving its corrupt Ministers and Officers and therefore the impugned Government Order and subsequent supporting notifications are contrary to the very object of the Karnataka Lokayukta Act. The constitution of the Anti Corruption Bureau is without authority of law and, though it purports to create an independent wing, it is controlled by the Hon'ble Chief Minister. Thus, the Lokayukta Police Force is virtually abolished by creation of the Anti Corruption Bureau., The State Government issued the impugned Government Order constituting the Anti Corruption Bureau on an erroneous understanding of the judgment of the Hon'ble Supreme Court of India in the case of C. Rangaswamaiah. In fact, that judgment curtails the power of the State Government to constitute the Anti Corruption Bureau or any alternative mode of investigating agency and to interfere with the functioning of the Lokayukta. The statutory powers assigned to the Lokayukta and Upa‑Lokayukta under the provisions of the Karnataka Lokayukta Act cannot be diluted by the executive orders passed by the State Government under Article 162 of the Constitution of India. After the constitution of the Anti Corruption Bureau by way of executive order, the State Government issued notifications dated 19‑3‑2016, thereby superseding the earlier notifications dated 6‑2‑1991, 8‑5‑2002 and 5‑12‑2002 that authorized the Lokayukta Police with powers to investigate and had declared the offices of the Police Wing of the Lokayukta as Police Stations., The Anti Corruption Bureau is established by means of an executive order, which has no legs to stand and the Anti Corruption Bureau cannot perform the duty of the police unless it is established by means of a statute. The constitution of the Anti Corruption Bureau itself is shaky, opposite to the provisions of law and cannot perform the duty of the police. The police wing is an independent investigating agency and, though the Anti Corruption Bureau purports to create an independent wing, it is controlled by the Hon'ble Chief Minister, i.e., control of political executive. The Anti Corruption Bureau cannot constitute an independent police force when the field is already occupied by the Karnataka Police Act, 1963. A police officer who is working under the control of the Home Department or State while being an investigating officer under the Anti Corruption Bureau cannot be expected to conduct a fair and impartial investigation in relation to high‑ranking public servants and is likely to be insulated from such influence., For the reasons stated above, the impugned Government Order dated 14‑03‑2016 constituting the Anti Corruption Bureau, the notifications dated 19‑03‑2016 and all subsequent notifications issued pursuant to the Government Order dated 14‑03‑2016 for the purpose of formation and working of the Anti Corruption Bureau, are liable to be quashed. Consequently, the Anti Corruption Bureau is liable to be abolished. All inquiries, investigations and other disciplinary proceedings pending before the Anti Corruption Bureau will be transferred to the Lokayukta. Specifically, the proceedings in respect of some of the private petitioners which are pending before the Anti Corruption Bureau will be transferred to the Lokayukta and the petitioners cannot escape from the clutches of law and must face the proceedings before the Police Wing of the Karnataka Lokayukta, which shall proceed in accordance with law., Before parting with the matter, we deem it proper to observe that, in order to eradicate corruption, keeping in view the object of the Karnataka Lokayukta Act and in the interest of justice for the public at large, we request the constitutional authorities as contemplated under the provisions of Section 3(2)(a) and 3(2)(b) of the Karnataka Lokayukta Act to take a conscious and unanimous decision to recommend persons with a track record of integrity, competence and fairness, both in public and personal life, to the posts of Lokayukta and Upa‑Lokayukta uninfluenced by caste, creed etc., and maintain transparency in the appointment. The appointment should be non‑political and the posts of Lokayukta and Upa‑Lokayukta should not become an accommodation centre for anybody., In view of the above discussion, we are of the considered opinion to make the following recommendations to the State Government: (a) There is an immediate necessity for amending Section 12(4) of the Karnataka Lokayukta Act, 1984, to the effect that once the recommendation made by the Lokayukta under Section 12(3) of the Act, the same shall be binding on the Government. (b) The Police Wing of the Karnataka Lokayukta shall be strengthened by appointing or deputing honest persons with a track record of integrity and fairness. (c) The police personnel who are presently working in the Anti Corruption Bureau shall be transferred or deputed to the Karnataka Lokayukta Police Wing, in order to strengthen the existing Police Wing of the Lokayukta and to enable them to prosecute and investigate matters effectively. The officers who are presently working in the Anti Corruption Bureau shall thereafter be under the administrative and exclusive disciplinary control of the Lokayukta. (d) The officers and officials who assist the Lokayukta and Upa‑Lokayukta in discharge of their functions shall not be transferred for a minimum period of three years without the consent of the Lokayukta or Upa‑Lokayukta, as the case may be. (e) The investigation, once started, shall be completed within a reasonable period. In case any proceedings are pending before the Lokayukta or Upa‑Lokayukta on account of pendency of matters before the Courts, necessary steps shall be taken for early disposal of the matters before the Courts., On appreciation of the entire material placed on record and in the light of the judgments of the Hon'ble Supreme Court of India cited supra, we answer the points raised in these writ petitions as follows: (i) The first point is answered in the negative, holding that the State Government is not justified in constituting the Anti Corruption Bureau by executive Government Order No. DPAR 14 SELOYU 2016, Bengaluru dated 14‑3‑2016, in exercise of powers under Article 162 of the Constitution of India, when the Karnataka Lokayukta Act, 1984 has occupied the field to eradicate corruption in the State of Karnataka. (ii) The second point is answered in the negative, holding that the State Government is not justified in issuing the impugned notifications dated 19‑3‑2016 superseding the earlier notifications dated 6‑2‑1991, 8‑5‑2002 and 5‑12‑2002 that authorized the Lokayukta Police with powers to investigate under the provisions of the Prevention of Corruption Act, 1988 and had declared the offices of the Police Wing of the Lokayukta as Police Stations under the provisions of Section 2(s) of the Code of Criminal Procedure. All subsequent notifications issued pursuant to the impugned Government Order dated 14‑3‑2016 for the purpose of formation and working of the Anti Corruption Bureau are also liable to be quashed., In view of the above, we pass the following order: (1) W.P. No. 21468/2016 (PIL) by the Advocates Association, Bengaluru; W.P. 19386/2016 (PIL) by Mr. Chidananda Urs B.G., Advocate; and W.P. No. 23622/2016 (PIL) by Samaj Parivarthana Samudaya are hereby allowed. (2) The impugned Government Order No. DPAR 14 SELOYU 2016, Bengaluru dated 14‑3‑2016 creating the Anti Corruption Bureau is hereby quashed. (3) The impugned notifications (a) No. HD 71 PoSiPa(i) Bengaluru, dated; (b) No. HD 71 PoSiPa(ii) 2016 Bengaluru, dated; (c) No. HD 71 PoSiPa(iii) 2016 Bengaluru, dated 19‑3‑2016; (d) No. HD 71 PoSiPa(iv) 2016 Bengaluru, dated 19‑3‑2016 issued by the State Government superseding the earlier notifications dated 6‑2‑1991, 8‑5‑2002 and 5‑12‑2002 are hereby quashed. All subsequent notifications issued pursuant to the Government Order dated 14‑3‑2016 for the purpose of formation and working of the Anti Corruption Bureau are also hereby quashed. (4) The notifications dated 6‑2‑1991, 8‑5‑2002 and 5‑12‑2002 that authorized the Lokayukta Police with powers to investigate under the provisions of the Prevention of Corruption Act, 1988 and had declared the offices of the Police Wing of the Lokayukta as Police Stations under Section 2(s) of the Code of Criminal Procedure are hereby restored., The writ petitions (a) W.P. No. 16222/2017 filed by Mr. K.T. Nagaraja; (b) W.P. 16223/2017 by Mr. Kale Gowda; (c) W.P. No. 16697/2017 by Sri Sidharth Bhupal Shingadi; (d) W.P. No. 16703/2017 by Mr. Basavaraju and others; (e) W.P. No. 16862/2017 by Mr. Deepak Kumar; (f) W.P. No. 28341/2017 by Mr. Channabasavaradhya; (g) W.P. 108010/2017 by Mr. Prakash Hasaraddi; (h) W.P. No. 108689/2017 by Mr. Basavaraj @ Sachin; (i) W.P. No. 108690/2017 by Mr. Shankar Ramachandra Ambure; (j) W.P. No. 22851/2018 by Mr. Hemesha Rangaswamy; and (l) W.P. No. 18042/2019 by Mr. K.C. Yathish Kumar, which are filed in personal interest, are accordingly disposed of, in view of the quashing of the Government Order dated 14‑3‑2016 in the writ petitions stated supra., Since this Court quashed the impugned Government Order dated 14‑3‑2016 and the impugned Government Notifications dated 19‑3‑2016, the Anti Corruption Bureau is abolished. All inquiries, investigations and other disciplinary proceedings pending before the Anti Corruption Bureau will be transferred to the Lokayukta. However, all inquiries, investigations, disciplinary proceedings, orders of convictions or acquittals and all other proceedings held by the Anti Corruption Bureau till today are hereby saved and the Police Wing of the Karnataka Lokayukta shall proceed from the stage at which they are pending as of today, in accordance with law., Consequently, the proceedings in respect of some of the private petitioners which are pending before the Anti Corruption Bureau will be transferred to the Lokayukta and the petitioners cannot escape from the clutches of law; they must face the proceedings before the Police Wing of the Karnataka Lokayukta, which shall proceed in accordance with law., In crafting this judgment, the erudition of the learned counsel for the parties, their industry, vision and, above all, dispassionate objectivity in discharging their role as officers of the Court must be commended. We acknowledge the valuable assistance rendered by Sri Ravi B. Naik, learned senior counsel for Sri K.B. Monesh Kumar, advocate; Sri V. Lakshminarayana, learned senior counsel/amicus curiae; Sri M.S. Bhagwat, learned senior counsel for Sri Satish K., advocate; Sri D.L. Jagadeesh, learned senior counsel assisted by Smt. Rakshitha D.J.; Sri Basavaraj S., learned senior counsel for Sri Gowtham A.R.; Sri Sharath S. Gowda and Sri C.V. Sudhindra, learned counsel for the petitioners in these writ petitions; as also Sri Prabhuling K. Navadgi, learned Advocate General assisted by Sri V. Sreenidhi, AGA and Sri Kiran Kumar, learned HCGP for the respondent State; Sri Ashok Haranahalli, learned senior counsel assisted by Sri Venkatesh S. Arabatti, Special Public Prosecutor and Sri B.S. Prasad, learned counsel for the respondent Lokayukta; and Sri P.N. Manmohan, learned counsel for the respondent Anti Corruption Bureau. We place on record their valuable services., The Registry is directed to send a copy of this Order to the Chief Secretary to the Government of Karnataka forthwith for taking necessary steps.
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The petitioner is the second daughter of Subedar Ramesh Khandappa Police Patil. Subedar Police Patil joined the Indian Army on 25 June 1979 and was inducted into the Madras Engineering Group. In 2001, he was deployed in Operation Parakram at Gaziwala, Punjab, performing mine‑clearance duties with the Madras Engineering Group when a Hand Pump Operator (HPO) 2 mine exploded. He sustained grave injuries and later succumbed to them after completing 22 years of service. He was classified as a serviceman killed in action. The petitioner survived with her mother and elder sister. At the time of his death in 2001, the petitioner was 10 years old and studying in the fourth standard. She completed her graduation in 2015 and became eligible for appointment in the State Government in any recruitment process., On 22 February 2019, the Directorate of the Department of Sainik Welfare and Resettlement, Government of Karnataka, issued a compendium of welfare schemes for veterans, widows, disabled soldiers and their wards. Under several of these schemes, the wards of ex‑servicemen are entitled to a 10 percent reservation in any recruitment process in all departments of the Government. On 26 August 2021, the Government of Karnataka issued a notification to fill vacant posts of Assistant Professors in Government First Grade colleges across the State. The recruitment was conducted under the Karnataka Education Department Services (Collegiate Education Department) (Recruitment of Assistant Professor) (Special) Rules, 2020, which provided reservation for ex‑servicemen or their wards., The petitioner, intending to apply for the post of Assistant Professor as the ward of an ex‑serviceman and meeting all other eligibility criteria, approached the Fourth Respondent, the Deputy Director of the Zila Sainik Welfare Board, for issuance of a dependent identity card to demonstrate her status as a ward of an ex‑serviceman. The Fourth Respondent declined to issue the identity card, citing guidelines that prohibit issuance to married daughters. Consequently, the petitioner lost the opportunity to participate in the selection process and filed the present petition, challenging the guideline and seeking a mandamus for consideration under the ex‑servicemen quota. The High Court, entertaining the petition, directed that the petitioner's application be processed in terms of its order dated 8 November 2022., The petition was argued by Sri Vivek R., learned counsel for the petitioner; Sri H. Shanthi Bhushan, learned Deputy Solicitor General of India for Respondent No 1; Sri B. V. Krishna, learned Additional Government Advocate for Respondent No 2; Smt A. H. Sunitha Ramesh, learned counsel for Respondent No 4; and Sri N. K. Ramesh, learned counsel for Respondent No 5., The petitioner’s counsel contended that the guideline permits issuance of a dependent identity card to both sons and daughters of an ex‑serviceman, but the issuance is limited to daughters until they marry. He argued that this restriction is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. He submitted that, but for her marital status, the petitioner would have been entitled to the identity card and consequently to consideration of her case on its own merit., The Deputy Solicitor General of India, Sri H. Shanthi Bhushan, countered that upon marriage a daughter ceases to be a dependent of the ex‑serviceman. The guidelines also impose an age cap of 25 years for both sons and daughters, after which no person is eligible for the card or related benefits. He asserted that there is no discrimination between sons and daughters once the age limit is reached and therefore supported the Fourth Respondent’s refusal to issue the card. He further noted that the family is already entitled to ex‑gratia of Rupees 2 lakh, a widow’s grant of Rupees 40,000 each, and allocation of a petrol bunk at Mysore, and submitted that the petitioner’s claim for recruitment consideration under the quota is untenable. He sought dismissal of the petition., The learned Additional Government Advocate, Sri B. V. Krishna, appearing for the Second Respondent, and the counsel for the Fourth Respondent, aligned with the arguments of the Deputy Solicitor General., The High Court of Karnataka has given careful consideration to the submissions of the parties and examined the material on record. The issue for determination is whether the guideline that differentiates between married and unmarried daughters is tenable under law., The petitioner is the daughter of the late Subedar Ramesh Khandappa Police Patil, who joined the Indian Army on 25 June 1979 and died in an explosion of a Hand Pump Operator‑2 mine on 31 December 2001 after about 22 years of service. He was classified as a soldier killed in action and is deemed a Ward of Battle Casualty. The petitioner is his second daughter; the ex‑serviceman had two daughters. The Government of Karnataka, through the Third Respondent, has notified several welfare schemes for veterans, widows, disabled soldiers and their wards, including a 10 percent reservation for ex‑servicemen in State Government recruitment for groups A, B, C and D, along with age relaxation. The Government also issued a Citizens’ Charter to provide prompt and efficient services to ex‑servicemen and their dependents, emphasizing top priority for resettlement benefits to the next of kin of battle casualty cases., The recruitment notification for Assistant Professors reserves 10 percent of vacancies for ex‑servicemen. Under this quota, either the ex‑servicemen themselves or, in their absence, their wards may apply. Applicants must demonstrate their status as an ex‑serviceman or a ward by producing a dependent identity card. The petitioner approached the Fourth Respondent for such a card, but the request was denied on the ground that she is a married daughter. The relevant guidelines for issuance of dependent identity cards state that spouses, dependent children, war widows and dependent parents of defence personnel killed in action are eligible. The card is issued on payment of Rupees 100 and must be linked to the ex‑serviceman’s identity card. The validity of the card varies: permanent for widows until remarriage, permanent for spouses unless status changes, and five‑year periods for children, renewable subject to conditions. Sons lose eligibility upon attaining the age of 25 years or ceasing to be dependents, whereas daughters lose eligibility upon marriage or unemployment due to disability. The guidelines thus differentiate between sons and daughters, raising a question of gender bias under Article 14., Article 14 of the Constitution of India prohibits the State from denying any person equality before the law or equal protection of the laws. Article 16 provides for equality of opportunity in public employment, and Article 15(1) forbids discrimination on the grounds of religion, race, caste, sex or place of birth. These provisions together ensure that persons in similar situations must be treated alike and that neither the legislature nor the executive may issue rules, guidelines or instructions that violate Articles 14 and 15., The High Court of Karnataka referred to several precedents. In C. B. Muthamma v. Union of India (1979) 4 SCC 6, the Supreme Court held that gender‑based discrimination in employment violates Article 16. In Ranjana Murlidhar Anerao v. State of Maharashtra (2014) 5 Mah LJ 543, the Bombay High Court declared that excluding a married daughter from the definition of family for a retail kerosene licence was violative of Articles 14, 15 and 19(1)(g). In Swara Sachin Kulkarni (Kumari Deepa Ashok Kulkarni) v. The Superintending Engineer, Pune Irrigation Project Circle (2013) SCC Online BOM 1549, the Court held that denying a married daughter compassionate employment was unconstitutional. In Union of India v. V. R. Tripathi (2019) 14 SCC 646, the Supreme Court reiterated that compassionate appointment must be governed by a scheme and cannot be denied arbitrarily.
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There can be no doubt about the principle that there is no right as such to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions., Madras High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. Madras High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub‑section (1) of Section 16 in regard to the legitimacy of the child., Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. State [M. Muthuraj v. State, 2016 SCC OnLine Mad 2387 : (2016) 5 CTC 50] adopting the same position., In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires., A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar [Namita Goldar v. Union of India, 2010 SCC OnLine Cal 266 : (2010) 1 Cal LJ 464] in Union of India v. M. Karumbayee [Union of India v. M. Karumbayee, 2017 SCC OnLine Mad 13030]. A special leave petition filed against the judgment of the Division Bench was dismissed by the Supreme Court of India on 18‑9‑2017 [Union of India v. M. Karumbayee, 2017 SCC OnLine SC 1797]., The Constitutional Courts, in the aforesaid judgments, were considering the cases where discrimination was meted out on the ground that one is a married daughter, for grant of compassionate appointment, kerosene licence and other benefits for being the kith and kin of a deceased Government servant and have held that a rule that would result in discrimination on the basis of gender would be violative of Article 14 of the Constitution of India., The issue in the case at hand does not concern a statute, but a guideline in the form of a policy; a policy in the form of a guideline, it is therefore, on a lower pedestal than that of a statute. If statutes are held to be violative of the tenets of Article 14 of the Constitution of India by the Constitutional Courts for the reason that they depict discrimination resulting in gender bias, a guideline in the form of policy would pale into insignificance if it portrays such discrimination, even to its remotest sense., The submission of the learned DSGI that there is a cap, up to 25 years of age, where the son and the daughter become equal, as beyond 25 years, subject to dependency, they would not be given the I‑card and therefore, the guideline does not offend Article 14 of the Constitution of India, deserves to be rejected, as it is fundamentally flawed. The son, whether married or unmarried, up to the age of 25, gets the benefit of grant of an I‑card, inter alia, and the grant of an I‑card gets the benefit of consideration for recruitment under the ex‑servicemen quota being the ward of an ex‑serviceman. The daughter gets the same benefit up to the age of 25 years, provided she does not get married. The son gets the benefit whether he is married or unmarried; the daughter gets the benefit only if she remains unmarried. Here lies the discriminatory choke, as the guideline portrays bias on the basis of gender; inequality on the basis of gender, as marriage of the daughter takes away her right to get an I‑card and marriage of a son does not take away his right to get an I‑card., To iterate, the guideline after the age of 25 years to both son and daughter is uniform. Therefore, up to the age of 25 years is what is analysed hereinabove. The daughter, being less than 25 years, gets married, loses the benefit of being a ward of an ex‑serviceman for the purposes of issuance of an I‑card. Therefore, she has to remain unmarried if she has to get the benefit of issuance of an I‑card in her favour, which by itself would generate certain benefits to the wards of the ex‑servicemen. In the considered view of the Supreme Court of India, if the son remains a son, married or unmarried; a daughter shall remain a daughter, married or unmarried. If the act of marriage does not change the status of the son, the act of marriage cannot and shall not change the status of a daughter., In the case at hand, the ex‑serviceman did not have any sons; he had two daughters. The first daughter has secured employment elsewhere on her own; the second daughter is the petitioner. She got married before 25, thus she has lost the opportunity of securing an I‑card and her consideration for appointment in a recruitment by the State Government under the ex‑servicemen quota. Therefore, the very object with which the welfare schemes are created for the benefit of the kith and kin of a deceased ex‑serviceman is taken away, because the petitioner is the daughter and the daughter is married. If the ex‑serviceman had sons, marriage would not have made any difference. For this reason, the guideline falls foul of the tenets of Article 14 of the Constitution of India. The guideline is a depiction of gender stereotypes which were existent decades ago, and if permitted to remain would be an anachronistic obstacle in the march towards women’s equality., The afore‑analyzed factual expose and the legal exposition would lead to an unmistakable conclusion that the guideline portrays discrimination on the basis of gender and cannot be permitted to remain as a guideline. Therefore, the guidelines will fly on the face of the tenets of Articles 14, 15 and 16 of the Constitution of India. If any Rule/Policy/Guideline, which would be in violation of the rule of equality, such Rule/Policy/Guideline cannot but be obliterated as being unconstitutional. The issue in the list is not the Rule; it is a Policy or a Guideline for grant of I‑card to the dependants of the ex‑servicemen and is therefore necessarily to be annihilated., A parting observation in the facts and circumstances of the case may not be inapt. The guideline/the quota/the policy are nomenclated as Guidelines for issuance of I‑cards to dependants of ex‑servicemen. A perusal of the relevant guidelines would indicate that its recitals refer to the beneficiaries of the guidelines as persons who have served the Forces or their kith and kin. It is the nomenclature of the guidelines that seeks to portray discrimination. The word used in the nomenclature is ex‑servicemen. The word “men” in the title portrays such discrimination as it seeks to demonstrate that the Forces are still a bastion of the male, while it is not. The term “Ex‑servicemen” refers to defence personnel, be it from the Army, Navy or Air Force, who have retired, been relieved or discharged except on account of misconduct. A person after having rendered service and retiring either from a combatant or non‑combatant Force is considered an ex‑serviceman., There was a time when women had no combatant role in any Force. There is a paradigm shift from the past. Women have reached combatant services in supervisory roles as officers and on other responsibilities, be it in the Indian Army, the Indian Air Force and the Indian Navy. This is in the public domain. Therefore, women have a role to play in the Forces, be it the Army, the Navy or the Air Force. These are not the times where women have no role to play at all. Therefore, the word “men” in the title, a part of the word ex‑servicemen, would seek to demonstrate a misogynous posture of an age‑old masculine culture. Consequently, the title wherever reads as ex‑servicemen in the annals of policy making of the Government, be it the Union or the State concerned, should be made gender‑neutral. There has to be a change in the mindset of the rule‑making authority or the policy makers; only then could there be recognition of commitment to the values of the Constitution, as equality should not remain a mere idle incantation, but has to be a vibrant living reality. It must be remembered that extension of women’s rights is the basic principle of all social progress., Since it is in the realm of rule‑making or policy‑making which is the domain of the Union Government or the State Government as the case may be, it is for the Union Government or the State Government to address this imperative need of change of nomenclature wherever it depicts “ex‑servicemen” to that of “ex‑service personnel”, which would be in tune with ever‑evolving, dynamic tenets of Article 14 of the Constitution of India., For the prefatory reasons, the following: Writ Petition is allowed. I hold that exclusion of a married daughter for grant of an I‑card in terms of guideline 5(c) of the guidelines for issuance of I‑cards to dependants of ex‑servicemen is violative of Articles 14 and 15 of the Constitution of India and accordingly, I strike down and annihilate the words “till married” in the aforesaid guideline. Ex consequenti, I direct respondents 3 and 4 to issue an I‑card to the petitioner, if all other parameters are satisfactory, within two weeks from the date of receipt of the copy of this order. The fifth respondent, Karnataka Examination Authority, shall consider the case of the petitioner under the ex‑servicemen quota for the post of Assistant Professor in terms of the notification issued on 26.08.2021. Till such time, a post in the cadre of Assistant Professor in terms of the vacancies notified on 26.08.2021 shall be kept reserved for the petitioner.
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M/s. ARG Outlier Media Pvt. Limited Applicant / Plaintiff Rayudu Vision Media Limited Respondent / Defendant Mr. Nikhil Sakhardande, Senior Advocate as well as Mr. Amit Jamsandekar, Mr. Prathmesh Kamat, Mr. Zoeb Cutlerywala and Mr. Vikram Kamat in behalf Phoenix Legal for Applicant / Plaintiff. Mr. Sharan Jagtiani, Senior Advocate as well as Mr. Hiren Kamod, Mr. Abhijeet Deshmukh, Mr. Aatir Saiyed, Ms. Surabhi Agarwal, Mr. Prem Khullar in behalf Khurana & Khurana for Respondent / Defendant. Reserved on : 27th June, 2023 Pronounced on : 01st September, 2023., The applicant / plaintiff is seeking interim reliefs in this application in the context of its registered device mark case of the plaintiff that the defendant, by using its mark in or about January 2023, has infringed upon the registered device mark of the plaintiff, thereby giving rise to the cause of action of filing the suit and the present application. The plaint initially stated a list of device marks and word marks in respect of which the plaintiff had obtained registration, but when the defendant pointed out that in respect of some of the marks, applications for registration were still pending, the plaintiff sought amendment of the plaint. The Delhi High Court granted permission for amendment, as a consequence of which, the prayers in the present application are being pressed on the basis of amended pleadings., The defendant filed its reply affidavit, as also an additional affidavit and the plaintiff filed its rejoinder affidavit, as a consequence of which, the pleadings were completed and the application was taken up for hearing and disposal., The plaintiff has stated in its plaint that it was incorporated on 02.08.2016 and it owns and operates news channels 'Republic TV', 'Republic Bharat' and 'Republic Bangla'. The plaintiff claims to have earned immense goodwill in a short period of time and that it is one of the leading news channels viewed in India as well as globally. In addition to having its own TV channels, it also owns Facebook pages, Twitter handles and YouTube channels, details of which are given in paragraph 6 of the plaint. The details of the domain names belonging to the plaintiff are given in paragraph 8 of the plaint. The plaintiff has given details of its registered trademarks, being device marks, in paragraph 10 of the plaint. It is specifically stated that the aforementioned device mark was registered in Class 41 on 15.05.2019, dating back to the date of the application i.e. 10.09.2018, as also in Class 38 on 17.05.2019, dating back to the date of application i.e. 10.09.2018., The plaintiff has stated that it engaged a Canadian based broadcast design and real‑time graphics agency for creating the said device mark, on the basis of an agreement dated 05.01.2017 and that the plaintiff paid service fees in that regard to the tune of USD 300,000. As per the agreement, the plaintiff is the sole and absolute owner of the said device mark. Copies of the services agreement executed between the plaintiff and the said Canadian based agency are placed on record. It is submitted that the banners and hoardings pertaining to launch of news channel Republic TV of the plaintiff were installed in as many as 60 cities around the time when the channel was launched in May 2017. The plaintiff incurred expenses of over Rs.6.01 crores for advertisement and publicity, apart from spending about Rs.57 crores in setting up the Republic TV news channel. The plaintiff has given details of its viewership on various platforms to support its claim of having earned immense goodwill from the time the aforesaid channel was launched in the year 2017. On this basis, the plaintiff claims proprietary rights in the said device mark and also asserts tremendous goodwill earned over the years after May 2017., It is claimed that on or about 04.02.2023, while accessing the internet, the plaintiff became aware of a YouTube channel by the name 'RTV' having its handle as @RTVNewsNetwork. Upon further enquiries, the plaintiff came to know that the same was owned and maintained by the defendant and that the defendant was maintaining multiple YouTube channels such as RTV Entertainment, RTV Life, RTV Plus, RTV Andhra Pradesh etc. The plaintiff found that the defendant was disseminating news in Telugu language through the said YouTube channels and that its logo was being used in all such broadcasts. The plaintiff found that the said logo, being used by the defendant, was deceptively similar to that of the registered device mark of the plaintiff and hence the plaintiff was constrained to make further enquiries. It was found that the defendant had applied for registration of the said logo / device mark with the Registrar of Trademarks under Classes 38 and 41 on 04.01.2023, although till about 31.01.2023, the channels of the defendant had been operating under the name and style of RED TV. According to the plaintiff, from 01.02.2023, the defendant suddenly started using the said infringing device mark and displayed the same in all its publications, videos and news broadcasts. The plaintiff also learnt that the defendant was in the process of seeking appropriate permissions from the Ministry of Information & Broadcasting for uplinking and downlinking of satellite television channels, thereby indicating that the aforesaid device mark of the defendant would be used for satellite television news channels by the defendant., In this backdrop on 07.02.2023, the plaintiff was constrained to issue a cease and desist notice to the defendant. Since the defendant did not stop using the said device mark, the plaintiff was constrained to file the present suit and the application for interim reliefs. By referring to and relying upon the extensive documents filed with the plaint and the application for interim relief, as also the rejoinder affidavit, the plaintiff has pressed for interim reliefs against the defendant, in aid of reliefs sought in the plaint i.e. a permanent injunction restraining the defendant from using the aforementioned device mark, which according to the plaintiff, is deceptively similar and hence, infringes upon the registered trademark of the plaintiff. Pleadings pertaining to alleged passing‑off by the defendant are also found in the plaint., The defendant appeared before the Delhi High Court and filed its affidavit in reply denying the allegations made by the plaintiff. The defendant asserts that its device mark, when compared with that of the plaintiff, is distinct and not even a prima facie case of deceptive similarity is made out by the plaintiff. The defendant claims that the correct status of the applications for registration of device marks of the plaintiff has not been stated before this Court and therefore, in the reply affidavit, the defendant has given details of certain other applications made on behalf of the plaintiff before the Registrar of Trademarks, some of which pertain to applications that are presently opposed, some being objected and others being refused by the Registrar., The defendant has stated that it was incorporated on 08.04.2005, thereby indicating that it is not a fly‑by‑night operator and that over a period of time, the defendant has established itself as a business house for entertainment, engaged in providing services such as news and current affairs TV channels, motion pictures, entertainment activities on radio and television, animation production studio etc. The defendant has confirmed that it has applied before the Ministry of Information and Broadcasting for uplinking and downlinking in the context of its news and current affairs TV channel RTV in Telugu, English and other languages in digital mode. It is submitted that such an application has been recently renewed. The defendant has then stated about the logos used earlier and that in April 2021, the defendant started using the name and logo Prime9News. It is stated that the said mark was registered in the name of one Samhitha Broadcasting Private Limited and the same was being used by the defendant with permission of Samhitha Broadcasting Private Limited., It is stated by the defendant that in the first week of January 2022, Samhitha Broadcasting Private Limited informed the defendant that the said permission was being withdrawn from April 2023, and in this backdrop, the defendant created its own new device mark. The defendant has pleaded in its affidavit in reply that it has been using the mark RTV much prior to the plaintiff even coming into existence. The defendant has then denied the allegations made by the plaintiff regarding dishonest use. It is submitted that a bare comparison of the two marks would show that there is no prima facie case of deceptive similarity made out by the plaintiff., Upon amendment of the plaint, the defendant filed an additional affidavit in reply alleging that since in the original plaint, the plaintiff had suppressed relevant information from this Court, on the ground of suppression, this Court may not exercise discretion in favour of the plaintiff in the present application for interim reliefs., On completion of pleadings, the application was taken up for hearing., Mr. Nikhil Sakhardande, learned senior counsel appearing for the applicant / plaintiff relied upon the pleadings placed on record on behalf of the plaintiff and submitted that the defendant dishonestly adopted its device mark from January 2023, only with an intention of riding upon the immense goodwill earned by the plaintiff. Reliance was placed on the viewership of the news channels of the plaintiff in India and globally, emphasizing the reputation, business and goodwill earned by the plaintiff from the time its channel Republic TV was launched in May 2017. The learned senior counsel referred to the pleadings pertaining to the manner in which the services of the aforesaid agency of Canada were engaged by the plaintiff by paying valuable consideration. It was submitted that registration of the trademark (device mark) of the plaintiff, dating back to 10.09.2018 itself granted statutory protection to the plaintiff and as per the law laid down by the Supreme Court of India in the case of Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia, (2004) 3 SCC 90, in such cases of infringement, injunction must follow. Reliance was also placed on the judgement of the Supreme Court of India in the case of Renaissance Hotel Holdings Inc. Vs. B. Vijaya Sai, (2022) 5 SCC 1, wherein the Supreme Court relied upon the said judgement in the case of Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia and further laid down that injunction must necessarily be granted when it appears prima facie that the adoption of the impugned mark is dishonest., By referring to the pleadings in the reply and the additional reply filed on behalf of the defendant, the learned senior counsel submitted that there was no explanation forthcoming from the defendant as to why it suddenly decided to use the impugned device mark from February 2023, particularly when it was earlier using distinct and different device marks specified in paragraph 8 of the reply affidavit. The learned senior counsel for the plaintiff relied upon the statements made on behalf of the defendant itself as to the manner in which it was using its mark RTV i.e. Rayudu TV since the year 2005 and emphasized that the sudden shift to the impugned device mark was only with the intention of illegally riding over the immense goodwill of the petitioner in its registered device mark., Reliance was placed on the judgement of the Supreme Court of India in the case of Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980, to contend that the plaintiff having registration of its device mark gave it statutory protection and vindicated its exclusive right to use the device mark, without the same being infringed upon by deceptively similar marks, like the impugned device mark being used by the defendant., The learned senior counsel for the plaintiff then proceeded to compare the two marks and stated that in terms of the settled position of law, a comparison of the two device marks, taken as a whole, clearly demonstrated that the impugned device mark of the defendant is deceptively similar and that it has the tendency of confusing the viewer. It was emphasized that since the device marks / logos in news channels are always shown at the right top corner of the screen, in the present case, a viewer, upon finding the impugned device mark of the defendant on the screen, would, in all likelihood, believe that the news channel is that of the plaintiff in Telugu language. Reliance was placed on the Division Bench judgement of this Court in the case of Hiralal Parbhudas Vs. Ganesh Trading Company, AIR 1984 Bom 218, particularly paragraph 5 thereof. Reliance was also placed on the judgement of the Delhi High Court in the case of Cable News Network Inc. Vs. CTVN Calcutta Television Network Pvt. Ltd., judgement and order dated 28.04.2023 passed in CS (Comm) 309/2021. The said case pertained to the CNN news channel, which was granted interim reliefs against the defendant channel using the logo CN. The tests applied by the Delhi High Court were relied upon by the learned senior counsel for the plaintiff to claim that in the present case, the plaintiff was entitled to grant of interim reliefs., It was submitted that during the course of arguments, it was argued on behalf of the defendant that if the claim of the plaintiff was that the leading and essential feature of its device mark was the alphabet R with red colour in the backdrop, the registration itself could be said to be prima facie unsustainable or weak and in this backdrop, reliance was placed on the Full Bench judgement of this Court in the case of Lupin Limited Vs. Johnson and Johnson, (2015) 1 Mh.L.J. 501 (FB). It was submitted that there were no pleadings placed on record on behalf of the defendant to raise such a claim. The learned senior counsel for the plaintiff specifically relied on paragraphs 55 to 59 of the said Full Bench judgement, to contend that there was absolutely no allegation of the registration of the device mark of the plaintiff being fraudulent, and therefore, the said contention of the plaintiff was wholly unsustainable. It was further submitted that it could not be said by the defendant that registration of the device mark of the plaintiff could not be granted as it used the alphabet R with red colour, simply because the defendant itself has applied for registration of its own device mark in the very same classes i.e. classes 38 and 41. In order to support the said proposition, the learned senior counsel for the plaintiff relied upon the judgement of this Court in the case of Franco Indian Pharmaceuticals Pvt. Ltd. Vs. Corona Remedies Pvt. Ltd., 2021 SCC OnLine Bom 13932., It was further submitted that when the defendant relied upon Section 34 of the Trademarks Act, 1999, it necessarily admitted that its device mark was identical or nearly resembling the registered trademark of the plaintiff in relation to the very same services provided by the plaintiff. By placing reliance on the judgement of this Court in the case of Kamat Hotels (India) Limited Vs. Royal Orchid Hotels Limited, 2011 (4) Mh.L.J. 71, the learned senior counsel for the plaintiff submitted that the defendant could not then turn around and claim that there was no deceptive similarity between the two device marks., The learned senior counsel for the plaintiff then compared the two device marks and stated that the alphabet R written in a specific manner within a box with red colour in the backdrop was unique and that the defendant adopting the impugned device mark from February 2023, with similar depiction of the alphabet R also in red background in a box, was enough to show that a strong prima facie case was made out on behalf of the plaintiff for grant of interim reliefs. It was submitted that merely because the defendant has shown the alphabets RTV at the bottom of the impugned device mark would not assist the defendant in resisting interim reliefs, for the reason that while comparing the two marks, the Court should not emphasize on the dissimilarities. It was further submitted that RTV could also give an impression to the viewer that it pertained to Republic TV, which is indeed the channel of the plaintiff using the registered device mark., It was further submitted that reliance placed by the defendant on Sections 9 and 11 of the Trademarks Act was misplaced, for the reason that such considerations are relevant in opposition proceedings and not in the present proceedings, which pertain to the defendant resisting interim reliefs against the registered device mark of the plaintiff. Reliance was also placed on Section 21 of the Act as regards the rights conferred upon registration and Section 29(2)(b) of the Act to claim that in the present case, the plaintiff has been able to show a strong prima facie case of infringement, as also passing‑off against the defendant. On this basis, the plaintiff claimed interim reliefs against the defendant., On the other hand, Mr. Sharan Jagtiani, learned senior counsel appearing for the defendant submitted that the contentions raised on behalf of the plaintiff were misconceived and that merely because the device mark of the plaintiff had been registered, it could not ipso facto lead to the Court granting interim reliefs. It was strenuously urged that the stand taken on behalf of the plaintiff in the plaint and then in the rejoinder affidavit indicated contradiction, perhaps because even the plaintiff was aware that it could not claim exclusivity in the alphabet R. It was submitted that the depiction of the alphabet or capital letter R in the device mark of the plaintiff is unremarkable, ordinary and commonplace. The device mark does not depict the capital letter R in any stylized manner and using red colour in the backdrop cannot lead to exclusivity in favour of the plaintiff. In that regard, the learned senior counsel for the defendant invited the attention of the Delhi High Court to device marks / logos of various news channels, which invariably use red colour in the backdrop., It was submitted that single letters or alphabets as trademarks or device marks in the context of trademark law are considered as weak marks, and that variation shown by the defendant in stylization can be enough to resist interim reliefs. Much emphasis was placed on the need of stylization when single letters were the basis or the central and essential feature of a trademark / device mark. In the absence of any stylization, according to the learned senior counsel appearing for the defendant, the simple depiction of a single letter or an alphabet could not become the basis of registration for claiming exclusivity of use., It was further submitted that a proper appreciation of the pleadings of the plaintiff on record would show that it failed to establish the essential feature of its device mark; it could neither be a single letter or alphabet R as depicted in the device mark nor its placement in a box with red colour and a dot at the bottom of the single letter or alphabet. It was claimed that the nature of the device mark of the plaintiff was inherently weak and consequently, the level of protection available was diminished. In support of the said contentions, the learned senior counsel for the defendant relied upon the Commentary The Modern Law of Trade Marks, 5th Edition, by Morcom, Roughton and St. Quintin, as also the judgement of the General Court of the European Union for Intellectual Property matters in the case of L’Oréal Vs. European Union Intellectual Property Office rendered on 09.11.2022; Super Cassettes Industries Limited Vs. Union of India, 2010 SCC OnLine Del 1652; People Interactive (India) Private Limited Vs. Vivek Pahwa, 2016 SCC OnLine Bom 7351; Three‑N‑Products Private Limited Vs. Emami Limited, 2009 (41) PTC 689 (Cal) and the judgement of the Supreme Court of India in the case of J. R. Kapoor Vs. Micronix India, 1994 Supp (3) SCC 215., It was submitted that in the judgement of the Calcutta High Court in the case of Three‑N‑Products Private Limited Vs. Emami Limited, it was also observed that the right of the owner of a device mark is, loosely speaking, somewhat similar to copyright. On this basis, the learned senior counsel for the defendant again asserted the aspect of stylization when a single letter or alphabet is the essential feature of a device mark., The learned senior counsel for the defendant further submitted that if the plaintiff claims that its use of the said registered device mark has acquired distinctiveness and secondary meaning, it would necessarily be a matter for trial. At this stage, particularly when the plaintiff itself claims to have got the device mark designed in the year 2017 and registered with effect from the year 2018, it would be a matter for trial and no interim relief could be granted at this stage. Reliance was placed on the order of this Court in the case of PhonePe Private Limited Vs. Resilient Innovations Private Limited, 2023 SCC OnLine Bom 764; People Interactive (India) Private Limited Vs. Vivek Pahwa (supra); and the judgement of the Delhi High Court in the case of PhonePe Private Limited Vs. EZY Services, 2021 SCC OnLine Del 2635., The learned senior counsel appearing for the defendant vehemently denied that the defendant had dishonestly adopted its device mark distinct with R being written in a stylized manner, there being no vertical line and its depiction being closer to the rupee sign in Devanagari script. It is further submitted that the device mark of the defendant being used from January‑February 2023 specifically has the alphabets RTV at the bottom signifying Rayudu TV, which has been in existence since the year 2005, for which documents have been placed on record. On this basis, it was emphasized that there was no question of any dishonesty on the part of the defendant. On the aspect of red colour, it was submitted that the same is a primary colour and apart from it being used in the backdrop of almost all news channels, the plaintiff was not entitled to claim any exclusivity in the said colour. It was submitted that the plaintiff’s case was not that of having used a unique combination of colours and that, in any case, whether use of red colour had the effect of the plaintiff acquiring distinctiveness or secondary meaning would still be a matter for trial., As regards the contention raised by the defendant relying upon Section 34 of the Trademarks Act, the learned senior counsel for the defendant submitted that the same was put forth only as an alternative submission, while specifically denying that there is any deceptive similarity in the two marks. According to the defendant, such alternative pleas can certainly be taken by the defendant and it cannot be said that as a consequence of having taken such a stand, the defendant is estopped from arguing that the two device marks are clearly distinct and there is no deceptive similarity., In this backdrop, the learned senior counsel for the defendant compared the two device marks as a whole and submitted that in the light of the stylized depiction of the alphabet R in the device mark of the defendant, there was no question of deceptive similarity with the registered device mark of the plaintiff. In any case, it was submitted that the device mark of the plaintiff being based on a single letter or alphabet was weak in its nature. In that sense, the Full Bench judgement of this Court in the case of Lupin Limited Vs. Johnson and Johnson (supra) was invoked on behalf of the defendant and it was submitted that if the principles laid down therein are correctly applied, interim reliefs deserve to be denied. It was submitted that the said Full Bench judgement was being invoked only because the plaintiff claimed exclusivity in its device mark on the basis that the alphabet R being simply depicted without any stylization could also be the basis of registration and hence absolute protection for grant of interim reliefs., On this basis, the learned senior counsel appearing for the defendant submitted that the present application deserved to be dismissed., In the light of the rival submissions and the material on record, the Delhi High Court is of the opinion that the prayer for interim reliefs made on behalf of the plaintiff needs to be examined on the basis of the position of law and the manner in which it would be applicable to the peculiar facts of the present case., There can be no doubt about the fact that when deceptive similarity is alleged on behalf of the plaintiff, the two marks are required to be compared as a whole and the well‑established tests for making such comparison are to be applied. The Delhi High Court in the case of Hiralal Parbhudas Vs. Ganesh Trading Company held as follows: 5. What emerges from these authorities is (a) what is the main idea or salient features, (b) marks are remembered by general impressions or by some significant detail rather than by a photographic recollection of the whole, (c) overall similarity is the touchstone, (d) marks must be looked at from the view and first impression of a person of average intelligence and imperfect recollection, (e) overall structure, phonetic similarity and similarity of idea are important and both visual and phonetic tests must be applied, (f) the purchaser must not be put in a state of wonderment, (g) marks must be compared as a whole, microscopic examination being impermissible, (h) the broad and salient features must be considered for which the marks must not be placed side by side to find out differences in design and (i) overall similarity is sufficient. In addition, indisputably, the nature of the commodity, the class of purchasers, the mode of purchase and other surrounding circumstances must also be taken into consideration., In order to apply the said test, the case of the plaintiff in the context of its registered trademark / device mark assumes importance. It is significant that the plaintiff has specifically stated in the rejoinder affidavit that it is not asserting a monopoly over the single letter or alphabet R per se or the red and white colour combination per se. Thus, even according to the plaintiff, neither the single letter / alphabet R nor the red and white colour combination can be said to be the central and/or essential feature of the registered device mark of the plaintiff. In such a situation, the case of the plaintiff can be supported if it is able to prima facie show that the depiction of the single letter or alphabet R in its device mark is in some manner unique or stylized and hence, distinctive. If these features prima facie become evident from the registered device mark of the plaintiff, they form the basis for comparison with the impugned device mark of the defendant., It is to be noted that the defendant specifically relies upon stylization and the manner in which the single letter or alphabet R is depicted in its device marks. The defendant also emphasizes the presence of the alphabets RTV in a blue background at the bottom of the device mark., The comparison between the two marks, as a whole, needs to be undertaken by applying the well‑established test as laid down in paragraph 5 of the judgement in the case of Hiralal Parbhudas Vs. Ganesh Trading Company quoted hereinabove., The rival device marks are as follows: Plaintiff’s registered mark and Defendant’s mark., A perusal of the registered device mark of the plaintiff shows that it consists of a single letter or alphabet R with a dot inside a box in red and white combination of colours. This Court is of the opinion that prima facie, the depiction of the single letter or alphabet R in the device mark of the plaintiff is a simple depiction of the alphabet R in capital and there does not appear to be any form of stylized depiction of the same. Although an attempt was made on behalf of the plaintiff to claim that the thickness of the vertical line of the alphabet R is distinctive, prima facie, this Court is not convinced with the said claim. Prima facie, there does not appear to be any distinctiveness or unique feature in the manner in which the alphabet R is depicted in the registered device mark of the plaintiff.
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Similarly, the combination of red and white colour in the device mark can also not be termed as a distinctive or unique feature placing exclusivity on its use by the plaintiff. There is substance in the contention raised on behalf of the defendant with material on record that the device marks or logos of almost all news channels use the combination of red with some colour or the other. If that be so, reading the specific stand taken on behalf of the plaintiff in its rejoinder affidavit at paragraph 12 that it is not asserting monopoly over either the letter or alphabet R per se or the red and white combination per se demonstrates that the plaintiff is unable to make out a strong prima facie case in its favour. As opposed to this, a perusal of the impugned device mark of the defendant shows that the single letter or alphabet R has been depicted in a stylized manner, where the vertical line is completely missing and the depiction is closer to the rupee sign in Devanagari script. The said depiction indeed has red colour in the backdrop, but the alphabets RTV are specifically stated in a blue strip at the bottom of the device mark. The defendant has placed material on record to indicate that RTV, being Rayudu TV, has existed since the year 2005 and it is based on the name of the owners of the said business entity., In such a situation, the Supreme Court of India finds that the plaintiff has not been able to make out a strong prima facie case in its favour of deceptive similarity upon comparison of the two device marks as a whole. The Court is conscious of the fact that dissimilarities cannot be emphasized upon, yet while comparing the two device marks as a whole, the classic test of likelihood of confusion in the mind of a viewer of average intelligence and imperfect recollection has to be applied. The Court finds that the plaintiff has not been able to make out a prima facie case that upon finding the impugned device mark or logo of the defendant on the right top corner of the screen, there is likelihood of confusion in the minds of the viewers that the channel they are watching is that of the plaintiff. In this regard, the defendant is justified in placing reliance on judgments in the cases of L Or al Vs. European Union Intellectual Property Office, Super Cassettes Industries Limited Vs. Union of India, People Interactive (India) Private Limited Vs. Vivek Pahwa, Three-N-Products Private Limited Vs. Emami Limited and J. R. Kapoor Vs. Micronix India., There is substance in the contention raised on behalf of the defendant, by placing reliance on the judgment of the Calcutta High Court in the case of Three-N-Products Private Limited Vs. Emami Limited, that the right of the owner of a device mark is somewhat similar to copyright. It is necessary to appreciate that when device marks are being compared and particularly when the central feature of the device mark is a single letter or alphabet, the manner in which it is depicted, including the aspect of stylization, assumes significance and it takes the matter closer to the concept of copyright. It cannot be denied that in such set of facts, the stylization applied to a single letter or an alphabet is required to be appreciated while considering whether the impugned device mark can be said to be even prima facie deceptively similar to the registered device mark of the plaintiff. On the aforesaid touchstone, in the present case, the plaintiff falls short of making out a prima facie case in its favour for grant of interim reliefs., It is in this sense that the defendant has relied upon the Full Bench judgment of the Supreme Court of India in the case of Lupin Limited Vs. Johnson and Johnson. It is specifically submitted on behalf of the defendant that if the plaintiff claims that the single letter or alphabet, with its backdrop and colour combination are the essential features of its device mark, the very registration of such a device mark where the alphabet R has been simply depicted in capital, prima facie, could be said to be doubtful. In the present case, the said Full Bench judgment is not invoked by alleging fraud on the part of the plaintiff. Nonetheless, prima facie, the unsustainable nature of registration of such a mark is highlighted on behalf of the defendant. In this context, a perusal of the Full Bench judgment of the Supreme Court of India in the case of Lupin Limited Vs. Johnson and Johnson shows that despite there being a strong presumption in favour of the plaintiff due to registration of its mark, at the interlocutory stage the Court has jurisdiction to examine whether prima facie the trademark or device mark of the plaintiff could have been registered. The Full Bench judgment specifically lays down that a low threshold prima facie case is not sufficient to refuse interim injunction in a suit for infringement. If the defendant is able to show to the Court, without embarking upon a detailed enquiry, that the registration granted in favour of the plaintiff is illegal or shocks the conscience of the Court, interim injunction can be refused. In the present case, particularly in the light of the stated case of the plaintiff that it is neither claiming monopoly in the single letter or alphabet R nor in the colour combination of red and white per se, and in the light of the fact that the depiction of the alphabet R in the registered trademark of the plaintiff does not prima facie appear to be distinctive or stylized, appearing to be a simple depiction of the alphabet R in capital, this Supreme Court of India can consider refusing interim reliefs despite the device mark of the plaintiff being registered. To that extent, the defendant is justified in relying upon the aforesaid Full Bench judgment of the Supreme Court of India in the case of Lupin Limited Vs. Johnson and Johnson., As regards dishonest adoption of the impugned device mark by the defendant, the Supreme Court of India is satisfied on the basis of material on record that the defendant, incorporated in the year 2005, and the name of its channel or proposed channel RTV being based on Rayudu Television, cannot be said to be dishonest adoption. There is sufficient material placed on record by the defendant to indicate the manner in which it started using RTV in its earlier logos, much prior in point of time, as the plaintiff admittedly came into existence only in the year 2017. The defendant has placed on record its earlier device marks and logos as depicted in paragraph 8 of the reply. The domain names being used by the defendant much prior in point of time also indicate that RTV was being used by the defendant from an earlier point of time. Much emphasis is placed on behalf of the plaintiff on the assertion that the defendant appears to have stopped using its device marks or logos as specified in paragraph 8 of the reply, having adopted the name and logo Prime9News and then suddenly shifted to the impugned device mark sometime in January or February 2023. So long as the defendant has placed sufficient material to reach a prima facie finding that it has been using the alphabets RTV for its channel, merely because the defendant shifted to the impugned device mark in January or February 2023, it cannot be said to be a recent or dishonest adoption. The contention of dishonest adoption, in this context, is necessarily intertwined with the basic allegation made on behalf of the plaintiff that there is deceptive similarity between the two marks. As noted hereinabove, the plaintiff has failed to make out a prima facie case in that regard, and therefore, even the contention pertaining to dishonest adoption on the part of the defendant fails., In such a situation, the plaintiff could still have been able to make out its case of entitlement to interim reliefs if, on the face of it, it was able to demonstrate that its device mark has already acquired distinctiveness and secondary meaning or significance. On the basis of material on record, which includes the admitted position that the plaintiff came into being in the year 2017 and its device mark was proposed to be used in the year 2018, the aspect of its device mark having acquired distinctiveness and secondary meaning would be a matter for trial. In the facts and circumstances of the present case, the defendant is justified in relying upon the judgment of the Supreme Court of India in the case of PhonePe Private Limited Vs. Resilient Innovations Private Limited and the judgment of the Delhi High Court in the case of PhonePe Private Limited Vs. EZY Services., The plaintiff claims that since the defendant relies upon Section 34 of the Trade Marks Act to resist the prayers for interim relief in the present application, it has conceded to the position that there is deceptive similarity between the two device marks. It is emphasized on behalf of the plaintiff, by placing reliance on the judgment of the Supreme Court of India in the case of Kamat Hotels (India) Limited Vs. Royal Orchid Hotels Limited, that the very essential requirements of applicability of Section 34 demonstrate that the defendant proceeds on the basis that its mark is identical with or nearly resembling the trademark or device mark of the plaintiff. There can be no quarrel with the proposition laid down in that judgment, as the ingredients of Section 34 have been elaborated therein. But, merely because the defendant has raised the said contention as an alternative plea while resisting interim reliefs, it cannot be said that the defendant has conceded to deceptive similarity between the two device marks and hence, it cannot be heard to say that on a comparison of the two device marks, the plaintiff has failed to make out a prima facie case. It is a settled position of law that the defendant is permitted to take alternative pleas, which may appear contradictory, but that in itself cannot estop the defendant from attacking the case of the plaintiff on merits. Therefore, there is no substance in the aforesaid contention raised on behalf of the plaintiff., In the light of the discussion hereinabove, reliance placed on behalf of the plaintiff on judgments of the Supreme Court in the cases of Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia and Renaissance Hotel Holdings Inc. Vs. B. Vijaya Sai cannot take its case any further. Similarly, reliance placed on the judgment of the Supreme Court in the case of Franco Indian Pharmaceuticals Pvt. Ltd. Vs. Corona Remedies Pvt. Ltd. can be of no avail to the plaintiff for the reason that even if the defendant has applied for registration of its device mark in classes 38 and 41 before the Registrar of Trademarks, it cannot be said that having applied for the same, it cannot resist grant of interim reliefs to the plaintiff. This is evident from the nature of submissions made on behalf of the defendant, emphasizing the stylized manner in which the single letter or alphabet is depicted in the device mark of the defendant along with alphabets RTV depicted at the bottom in a blue strip. The plaintiff is also not justified in relying upon the judgment of the Delhi High Court in the case of Cable News Network Inc. Vs. CTVN Calcutta Television Network Pvt. Ltd. because in that case, injunction was granted in favour of the plaintiff by emphasizing the way in which the defendant had copied the stylized manner of writing the alphabets C and N, joined at the bottom. It was found that this style was copied in the impugned mark. But the facts of the present case are clearly distinguishable, as noted hereinabove., An attempt was made on behalf of the plaintiff to contend that reliance placed on the judgment of the General Court of the European Union for intellectual property matters was misplaced because the proceeding concerned opposition to registration of a trademark. This Court is of the opinion that the judgment can be referred to only for the limited aspect of necessity of stylization highlighted on behalf of the defendant in situations where a single letter or alphabet is the central and essential feature of a device mark. This Court has compared the two device marks as a whole, which are depicted hereinabove, and it is found that applying the tests evolved through various judgments of courts, it cannot be said that the plaintiff has made out a strong prima facie case in its favour to hold that the impugned device mark of the defendant is deceptively similar to the registered device mark of the plaintiff. Since the plaintiff has failed to make out a prima facie case in its favour, no enquiry is warranted on the aspects of balance of convenience and the grave and irreparable loss that the plaintiff might suffer in the absence of interim reliefs., In view of the above, the Supreme Court of India finds no merit in the present application and accordingly, it is dismissed.
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Writ Petition No. 16431 of 2021 S. Sridharan, Petitioner; Chief Minister of Tamil Nadu, Chief Minister's Office, Secretariat, Chennai 600009; The Secretary to Government Tourism, Culture and Religious Endowments Department, Government of Tamil Nadu, Secretariat, Chennai 600009; The Commissioner, Hindu Religious and Charitable Endowments Department, 119 Uthamar Gandhi Salai, Nungambakkam, Chennai 600034. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing Respondent No.1 not to chair the Advisory Committee formed under Section 7 of the Tamil Nadu Hindu Religious Charitable Endowments Act, 1959 until he takes a pledge in front of a Hindu God in a nearby Hindu temple in the presence of two witnesses as per the said Act and the Rules framed thereunder., For Petitioner: Mr. S. Sridharan, Party-in-Person. For Respondents: Mr. R. Shanmugasundaram, Advocate General, assisted by Mr. P. Muthukumar, Counsel for the State. (Made by the Honourable Chief Justice) This is an utterly mischievous petition and made in extreme bad taste., There can be no element of public interest in the matter. The prayer in the writ petition is for directing the Chief Minister of the State not to chair any Advisory Committee formed under Section 7 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, until he takes a pledge in front of a Hindu God in a nearby Hindu temple in the presence of two witnesses. Discord, disharmony and suspicion in the name of religion have to stop. This is a secular country and secularism implies tolerance for other religions. The country also provides for freedom of expression to its citizens, which, in turn, implies lending an ear to other points of view. Even the Constitution permits the oath of office to be taken either in the name of God or in the name of the Constitution. It does not appear that any religion teaches narrow-mindedness or requires followers of another faith to be hurt or injured. The sentiment expressed in the petition cannot be appreciated. The petition is dismissed. Though no costs are imposed on the petitioner, the petitioner will not be entitled to file any public interest litigation for a period of two years from the date without obtaining prior permission from the relevant Bench.
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The challenge in the present appeals is to an order passed by the Full Bench of the Karnataka High Court on 15 March 2022, dismissing the challenge to the Government Order dated 5 February 2022. Such Government Order directed the Government Schools in Karnataka to abide by the prescribed uniform, and the private schools were directed to mandate a uniform as decided by their Board of Management., Before advertising to the submissions made by the counsels on both sides, it is imperative to give a background of the ethos and principles of secularism adopted in the Constitution of India. Though the term secular has a wide amplitude and has been understood differently in different parts of the world, it is important to comprehend the same in the context of the Indian Constitution., The word secular is now part of the Preamble of the Constitution. What is meant by Secular in the Hindi version of the Constitution needs to be discussed first. The word Secular was inserted in the Preamble of the Constitution by the 42nd Amendment with effect from 3 January 1977. It is commonly understood in contradistinction to the term religious. The political philosophy of a secular government has been developed in the West in the historical context of the preeminence of the established Church and the exercise of power by it over society and its institutions. The democratic State thereafter gradually replaced and marginalized the influence of the Church. The idea of secularism may have been borrowed in the Indian Constitution from the West; however, it has adopted its own unique brand based on its particular history and exigencies which are far distinct in many ways from secularism as defined and followed in European countries, the United States of America and Australia., The use of the word panthnirpeksh in the Constitution brings out the difference in the terms “Dharmanirpeksh” and “Panthnirpeksh”. Panth, or sect, symbolizes devotion towards any specific belief, way of worship or form of God, but Dharma symbolizes absolute and eternal values which can never change, like the laws of nature. Dharma is what upholds, sustains and results in the well‑being and upliftment of the Praja (citizens) and the society as a whole., This Court in a judgment reported as A.S. Narayana Deekshitulu v. State of Andhra Pradesh & Ors. quoted the concept of Dharma explained by Justice M. Rama Jois in his Legal and Constitutional History of India as it is most difficult to define Dharma. Dharma has been explained to be that which helps the upliftment of living beings. Therefore, that which ensures welfare of living beings is surely Dharma. The learned rishis have declared that which sustains is Dharma. This Court held that when dharma is used in the context of duties of the individuals and powers of the State, it means constitutional law (Rajadharma). Likewise, when it is said that Dharmarajya is necessary for the peace and prosperity of the people and for establishing an egalitarian society, the word dharma in the context of the word Rajya only means law, and Dharmarajya means rule of law and not rule of religion or a theocratic State. Any action, big or small, that is free from selfishness, is part of dharma. Thus, having love for all human beings is dharma. The Court held as under: 156. It is because of the above that if one were to ask “What are the signs and symptoms of dharma?”, the answer is: that which has no room for narrow‑mindedness, sectarianism, blind faith, and dogma. The purity of dharma, therefore, cannot be compromised with sectarianism. A sectarian religion is open to a limited group of people whereas dharma embraces all and excludes none. This is the core of our dharma, our psyche. 157. Nothing further is required to bring home the distinction between religion and dharma; and so I say that the word religion in Articles 25 and 26 has to be understood not in a narrow sectarian sense but encompassing our ethos of strive to achieve this; let us spread the message of our dharma by availing and taking advantage of the freedom guaranteed by Articles 25 and 26 of our Constitution., This Court in Kesavananda Bharati v. State of Kerala & Anr., even prior to the addition of the word Secular by the 42nd Amendment, held that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare State. Honourable Justice H.R. Khanna in his judgment referred to the statement of K. Santhanam, a prominent member of the Constituent Assembly and editor of a newspaper. He observed: 1481. K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant to get India out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education. The third revolution was an economic one: the transition from primitive rural economy to scientific and planned agriculture and industry. Radhakrishnan (now President of India) believed India must have a socio‑economic revolution designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about a fundamental change in the structure of Indian society., The secular character of the State was reiterated in a later Constitution Bench judgment reported as Smt. Indira Nehru Gandhi v. Shri Raj Narain wherein it was held: 252. It has been stated by me on page 685 (Supreme Court Cases page 767) of the judgment that the secular character of the State, according to which the State shall not discriminate against any citizen on the ground of religion, cannot be done away with. The above observations show that the secular character of the Constitution and the rights guaranteed by Article 15 pertain to the basic structure of the Constitution., The word Secular after being added in the Preamble was also considered by a three‑Judge Bench judgment of the Supreme Court of India reported as Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors. This Court was considering an appeal against the setting aside of the election of the appellant under the Representation of the People Act, 1951 to the Maharashtra State Assembly on the ground of speeches made by him in the course of the election campaign. It was held that a Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices., The term Secular was also considered by a nine‑Judge Bench of the Supreme Court of India reported as S.R. Bommai & Ors. v. Union of India & Ors. It was held that our Constitution does not prohibit the practice of any religion either privately or publicly. The relevant extract of the judgment reads: 146. These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations. 148. One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. 304. Both the expressions socialist and secular by themselves are not capable of precise definition. We are, however, not concerned with their general meaning or content. Our object is to ascertain the meaning of the expression secular in the context of our Constitution. As the discussion hereafter would demonstrate, the 42nd Amendment merely made explicit what was implicit in it. While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable treatment of all other religions, races and castes. How are the constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality., In the same year, in a judgment reported as Santosh Kumar & Ors. v. Secretary, Ministry of Human Resource Development & Anr., a question arose as to whether the inclusion of Sanskrit in the syllabus of the Central Board of Secondary Education as an elective subject for secondary school teaching is permissible. The Supreme Court of India quoted that it would be profitable to note that according to Justice H.R. Khanna secularism is neither anti‑God nor pro‑God; it treats alike the devout, the agnostic and the atheist. According to him, secularism is not the antithesis of religious devoutness. He sought to dispel the impression that if a person is a devout Hindu or a devout Muslim, he ceases to be secular., The National Curriculum Framework for School Education published by the National Council of Educational Research and Training was challenged before the Supreme Court of India in a judgment reported as Ms. Aruna Roy & Ors. v. Union of India & Ors. The Court relied upon the S.B. Chavan Committee Report, 1999 which strongly recommended education about religions as an instrument of social cohesion and harmony, stating that a word of caution is required. Education about religions must be handled with extreme care. All steps must be taken in advance to ensure that no personal prejudice or narrow‑minded perceptions are allowed to distort the real purpose of this venture and no rituals, dogmas and superstitions are propagated in the name of education about religions. All religions therefore have to be treated with equal respect (sarva dharma sambhav) and there must be no discrimination on the ground of any religion (panthnirapekshata). The Committee observed: 29. At this stage, we would quote the relevant part of the S.B. Chavan Committee’s Report., In view of the diverse character of our country, it is essential that certain national values are also imbibed by our young students. They should be acquainted with the history of India's freedom struggle, cultural heritage, constitutional obligations and the features comprising our national identity. The Committee feels that some of these national values can be imparted indirectly at the primary stage while at the middle and secondary levels, they can be included in the curriculum., Another aspect that must be given some thought is religion, which is the most misused and misunderstood concept. The process of making the students acquainted with the basics of all religions, the values inherent therein and also a comparative study of the philosophy of all religions should begin at the middle stage in schools and continue up to the university level. Students have to be made aware that the basic concept behind every religion is common, only the practices differ. Even if there are differences of opinion in certain areas, people have to learn to coexist and carry no hatred against any religion. Therefore, in our view, the word religion should not be misunderstood nor should contention be raised that, as it is used in the National Policy of Education, secularism would be in peril. On the contrary, let us have a secularistic democracy where even a very weak man hopes to prevail over a very strong man (having post, power or property) on the strength of rule of law by proper understanding of duties towards society. Value‑based education is likely to help the nation to fight against all kinds of prevailing fanaticism, ill will, violence, dishonesty, corruption, exploitation and drug abuse. Let knowledge, like the sun, shine for all and there should not be any room for narrow‑mindedness, blind faith and dogma. For this purpose also, if the basic tenets of all religions over the world are learnt, it cannot be said that secularism would not survive., In T.M.A. Pai Foundation, it was held that the State is not prevented from making any law in relation to religious practice and the same is permissible under Article 25(2)(a) of the Constitution of India. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice. The Court held: 83. Article 25(2) gives specific power to the State to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice as provided by sub‑clause (a) of Article 25(2). This is a further curtailment of the right to profess, practise and propagate religion conferred on persons under Article 25(1). Article 25(2)(a) covers only a limited area associated with religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice., Thus, though the concept of secularism emerged in the West, it has taken a different colour over time. In a democratic country like India, consisting of multiple religions, regions, faiths, languages, food and clothing, the concept of secularism is to be understood differently. Secularism, as adopted under our Constitution, is that religion cannot be intertwined with any of the secular activities of the State. Any encroachment of religion in the secular activities is not permissible. Secularism thus means treating all religions equally, respecting all religions and protecting the practices of all religions. The positive meaning of secularism would be nondiscrimination by the State on the basis of religious faith and practices. Secularism can be practiced by adopting a completely neutral approach towards religion or by a positive approach wherein the State believes and respects all religions but does not favour any., The challenge in the present appeals is to the Government Order dated 5 February 2022, the translated copy of which reads as follows: Proceedings of the Government of Karnataka – Subject: Regarding a dress code for students of all schools and colleges of the state. References: 1) Karnataka Education Act, 1983; 2) Government Circular: 509 SHH 2013, Date: 31. The preamble states that, as mentioned in reference No. 1, the Karnataka Education Act, 1983, passed by the Government of Karnataka (1995) Section 7(2)(g)(v) stipulates that all school students studying in Karnataka should behave in a fraternal manner, transcend their group identity and develop an orientation towards social justice. Under Section 133 of the above law, the government has the authority to issue directions to schools and colleges in this regard. The circular under reference No. 2 underlines how pre‑university education is an important phase in the lives of students. All schools and colleges in the state have set up development committees to implement policies in line with government policies, utilize budgetary allocations, improve basic amenities and maintain academic standards. It is recommended that schools and colleges abide by the directions of these development committees. Any such supervisory committee in schools and colleges (SDMC in Government Institutions and Parents‑Teachers Associations and the management in private institutions) should strive to provide a conducive academic environment and enforce a suitable code of conduct in accordance with government regulations. Such a code of conduct would pertain to that particular school or college. Various initiatives have been undertaken to ensure that students in schools and colleges have a standardized learning experience. However, it has been brought to the education department’s notice that students in a few institutions have been carrying out their religious observances, which has become an obstacle to unity and uniformity in the schools and colleges. The question relating to a uniform dress code over individual dressing choices has come up in several cases before the Supreme Court of India and High Courts, which have ruled as below., 1) In paragraph 9 of the Kerala High Court ruling in W.P. (C) No. 35293/2018, dated 04‑12‑2018, it cites a ruling by the Supreme Court of India: 9. The Apex Court in Asha Renjan and others v. State of Bihar and others [(2017) 4 SCC 397] accepted the balance test when competing rights are involved and held that individual interest must yield to the larger public interest. Thus, conflict of competing rights can be resolved not by negating individual rights but by upholding the larger right to maintain the relationship between institution and students. 2) In the case of Fatima Hussain Syed v. Bharat Education Society and Ors. (AIR 2003 Bombay 75), a controversy occurred at Kartik High School, Mumbai. The Bombay High Court ruled that it was not a violation of Article 25 of the Constitution for the principal to prohibit the wearing of a headscarf or head covering in the school. 3) Subsequent to the Supreme Court’s ruling, the Madras High Court, in V. Kamalamma v. Dr. MGR Medical University, Tamil Nadu and Ors., upheld the modified dress code mandated by the university. A similar issue was considered by the Madras High Court in Shri M Venkatasubbarao Matriculation Higher Secondary School Staff Association v. Shri M. Venkatasubbarao Matriculation Higher Secondary School (2004) 2 MLJ 653. As mentioned in the above rulings, the prohibition of a headscarf or a garment covering the head is not a violation of Article 25 of the Constitution., According to the Karnataka Education Act, 1983, Article 133, Sub‑Rule 2 and Article 7(1)(i), 7(2)(g)(v) and the Karnataka Education Act (Classification, Regulation, Curriculum Scheduling, Others) Rules 1995 as per Rule 11, the government decreed: Government Order No: EP14 SHH 2022, Bengaluru, Dated 5 February 2022. Using the powers granted by Karnataka Education Act, 1983, Sub‑Rule 133(2) [Section 7(1)(i), 7(2)(g)(v) and Karnataka Education Act (Classification, Regulation, Curriculum Scheduling, Others) Rules 1995 as per Rule 11], all government schools in the state are mandated to abide by the official uniform. Private schools should mandate a uniform decided upon by their board of management. In colleges that come under the pre‑university education department’s jurisdiction, the uniforms mandated by the College Development Committee, or the board of management, should be worn. In the event that the management does mandate a uniform, students should wear clothes that are in the interests of unity, equality and public order. By the Order of the Governor of Karnataka, and in his name, Padmini S N, Joint Secretary to the Government Education Department (Pre‑University)., The Karnataka Education Act, 1983, under which the above Government Order has been issued, was enacted with a view to foster the harmonious development of the mental and physical faculties of students and to cultivate a scientific and secular outlook through education. The long title and some of the relevant provisions read as follows: ‘An Act to provide for better organisation, development, discipline and control of the educational institutions in the State.’ The Act provides for the planned development of educational institutions, inculcation of healthy educational practice, maintenance and improvement in the standards of education and better organisation, discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. Section 5 deals with promotion of education of the weaker sections and the handicapped. The State Government shall endeavour to promote the education of the handicapped, backward classes and the weaker sections of society, including the economically weaker sections, and in particular of the Scheduled Castes and Scheduled Tribes, by adopting appropriate measures. Section 7 empowers the Government to prescribe curricula, etc. Subject to such rules as may be prescribed, the State Government may, in respect of educational institutions, by order specify the facilities to be provided, such as buildings, sanitary arrangements, playgrounds, furniture, equipment, library, teaching aid, laboratory and workshops, and such other matters as are considered necessary. The curricula may also include schemes to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of our composite culture; to develop scientific temper, humanism and the spirit of inquiry and reform; and to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement., The Act also contemplates withdrawal of recognition if any local authority or the Governing Council of any private educational institution denies admission to any citizen on the ground of religion, race, caste, language or any of them (Section 39(1)(b)); or directly or indirectly encourages in the educational institution any propaganda or practice wounding the religious feelings of any class of citizens of India or insulting religion or the religious belief of that class (Section 39(1)(c))., The impugned Government Order has been issued by exercising the powers conferred under Section 133 of the Act, which reads as follows: 133. Powers of Government to give directions. (1) The State Government may, subject to other provisions of this Act, by order, direct the Commissioner of Public Instruction or the Director or any other officer not below the rank of the District Educational Officer to make an enquiry or to take appropriate proceedings under this Act in respect of any matter specified in the order, and the Director or the other officer, as the case may be, shall report to the State Government the result of the enquiry or the proceeding. (2) The State Government may give such directions to any educational institution or tutorial institution as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder, and the Governing Council or the owner, as the case may be, of such institution shall comply with every such direction. (3) The State Government may also give such directions to the officers or authorities under its control as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of such officer or authority to comply with such directions., The State Government is also empowered to make rules to carry out the purposes of this Act under Section 145. Sub‑section 2 provides that, in particular and without prejudice to the generality of the foregoing power, the Rules may provide for the establishment, maintenance and administration of educational institutions (Section 145(2)(xii)); the purposes for which the premises of the educational institutions may be used and the restrictions and conditions subject to which such premises may be used for any other purpose (Section 145(2)(xxix)); and all matters expressly required by the Act to be prescribed or in respect of which the Act makes no provision or makes insufficient provision, and a provision is, in the opinion of the State Government, necessary for the proper implementation of the Act (Section 145(2)(xL))., In pursuance of the above statutory provisions, the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.) Rules, 1995 were framed. Rule 11 of the Rules provides for uniform, clothing, textbooks etc., and reads as follows: 11. Provision of Uniform, Clothing, Textbooks etc. (1) Every recognised educational institution may specify its own set of uniform. Such uniform, once specified, shall not be changed within the period of the next five years. (2) When an educational institution intends to change the uniform as specified in sub‑rule (1), it shall issue notice to parents at least one year in advance. (3) Purchase of uniform clothing and textbooks from the school or from a shop suggested by school authorities, and stitching of uniform clothing with tailors suggested by the school authorities, shall be at the option of the student or his parent. The school authorities shall make no compulsion in this regard., Rule 16 of the Rules provides for the constitution and functions of the District Level Education Regulating Authority. An order was passed by the College Betterment Committee of the Government Pre‑University College for Girls, Udupi, on 23 June 2018, resolving to maintain the same uniform for the year as the previous year, namely blue coloured churidar pant, white coloured top with blue checks, and blue pant coloured shawl on the shoulders for all six days of the week. It was also resolved to hand over the responsibility of providing the uniform to poor girl students from donors to the Vice‑President Yashpal Suvarna, and powers were given to the Principal to decide after checking availability of the uniform in the shops., The challenge to the Circular dated 5 February 2022 before the Karnataka High Court remained unsuccessful on various grounds, which are not necessary to be extracted herein., Senior advocates Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan, Ms. Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr. A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi, Mr. Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave, and Mr. Prashant Bhushan, Ms. Kirti Singh, Mr. Rishad Ahmed Chowdhury, Mr. Shoeb Alam, Mr. Rahmatullah Kotwal, Ms. Thulasi K. Raj, and Mr. Mohd. Nizamuddin Pasha assisted the Supreme Court of India on behalf of the appellants; whereas Mr. Tushar Mehta, Solicitor General, Mr. K.M. Natraj, Additional Solicitor General, Mr. Prabhuling Navadgi, Advocate General for the State of Karnataka, Mr. R. Venkataramani, Ms. V. Mohana, and Mr. D.S. Naidu, learned Senior Advocates, argued on behalf of the respondents. The arguments covered various issues which will be dealt with hereinafter at appropriate stages., We have heard learned counsels for the parties at length. The following questions arise for consideration in the present appeals: Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re) and/or should the present appeals be referred to a Constitution Bench in terms of Article 145(3) of the Constitution; whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order, insofar as it empowers a College Development Committee to decide on the restriction or prohibition of headscarves, is ex facie violative of Section 143 of the Act; what is the ambit and scope of the right to freedom of conscience and religion under Article 25; what is the ambit and scope of essential religious practices under Article 25 of the Constitution; whether the fundamental rights of freedom of expression under Article 19(1)(a) and the right of privacy under Article 21 are mutually exclusive or complementary, and whether the Government Order meets the requirement of reasonableness for the purposes of Article 21 and Article 14; whether the Government Order impinges upon the constitutional promise of fraternity and dignity under the Preamble as well as the fundamental duties enumerated under Article 51A sub‑clauses (e) and (vii); and whether, if the wearing of hijab is considered an essential religious practice, the student can seek the right to wear a headscarf in a secular school as a matter of right.
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Whether a student‑citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre‑condition for accessing education in a State institution? Whether in the constitutional scheme, the State is obligated to ensure reasonable accommodation to its citizens? Whether the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution? Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act?, Question (i) – Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re‑9J) and/or should the present appeals be referred to a Constitution Bench in terms of Article 145(3) of the Constitution?, The preliminary submission of learned counsel for the appellants is that the present case ought to be referred to a larger bench in view of the order of the Supreme Court of India reported as Kantaru Rajeevaru (Sabarimala Temple Review‑5J) versus Indian Young Lawyers Association and others. One of the arguments raised for such submission was that it has to be decided what is considered to be essentially religious, essential to religion and integral part of religion. The contention was that religion is a means to express one's faith. The larger Bench of the Supreme Court of India framed the questions of law in an order. However, the reasons recorded for the reference state the ambit to be the contours of judicial review in matters pertaining to essential religious practices. The questions referred to in the said case relate to the extent to which the Supreme Court of India can inquire into whether a particular practice would be qualified as an integral, essential part of religion., It was also argued that the present case involves a substantial question of law relating to interpretation of the Constitution, therefore, ought to be referred to a Constitution Bench in terms of Article 145(3) of the Constitution., It is noted that the review in Kantaru Rajeevaru (Right to Religion, In Re‑9J) is to consider much wider questions. The argument that the matter should be referred to a larger Bench to be heard along with such referred cases does not warrant consideration. The questions referred to the larger Bench relate to the power of judicial review in the matters of essential religious practices. But the said question need not be examined in the present matter as the issue herein is whether a religious practice, which may be an essential religious practice, can be regulated by the State in a secular institution. Therefore, I do not find it necessary to tag the present appeals along with Kantaru Rajeevaru., The argument that the present appeals involve a substantial question of law as to the interpretation of the Constitution, and thus should be referred to the Bench of Five Judges in terms of Article 145(3) of the Constitution is not tenable. Reliance is placed on a nine‑judge bench judgment reported as K.S. Puttaswamy and another versus Union of India and others, wherein the Supreme Court of India held: When a substantial question as to the interpretation of the Constitution arises, it is the Supreme Court of India and the Supreme Court of India alone under Article 145(3) that is to decide what the interpretation of the Constitution shall be, and for this purpose, the Constitution entrusts this task to a minimum of five judges of the Supreme Court of India., There is no dispute about the proposition canvassed. The issue in the present matter is however whether the students can enforce their religious beliefs in a secular institution. Thus, the issues raised do not become a substantial question of law as to the interpretation of the Constitution only for the reason that the right claimed by the appellants is provided under the Constitution. Hence, I do not find the need to refer the matter to a larger bench or that the same should be heard along with Kantaru Rajeevaru., Question (ii) – Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction or prohibition of headscarves is ex facie violative of Section 143 of the Act?, The argument raised is with reference to Section 143 of the Act. It is contended that the State Government can delegate all or any of its powers exercisable by it, or to be exercised also by such office or authority subordinate to the State Government, as may be specified in the notification. It is the contention of the learned counsel for the appellants that the notification dated 31‑1‑2014 is to delegate the essential State functions in favour of a non‑statutory authority. Therefore, such notification violates the mandate of Section 143 of the Act. Section 143 of the Act reads thus: 143. Delegation. The State Government may by notification in the official gazette delegate all or any powers exercisable by it under this Act or rules made thereunder, in relation to such matter and subject to such conditions, if any, as may be specified in the direction, to be exercised also by such officer or authority subordinate to the State Government as may be specified in the notification., It is contended by the learned counsel for the appellants that the power to maintain public order is the responsibility of the State Government and, therefore, the State Government could not delegate its authority to a College Development Committee which is not a State within the meaning of Article 12 as it is a mechanism created by the State. The circular issued by the Government of Karnataka dated 31‑1‑2014, published in the official Gazette, reads thus: Government of Karnataka No. ED 580 SHH 2013 Department of Education Multistore Building Bangalore dated 31‑01. Education department is providing first and second Pre‑University College education in the state. Pre‑University College education is the main stage in the students' life. In accordance with the government and department direction and in order to utilise the grants as well as in maintaining academic standards and development of infrastructure, we are hereby directed to form a college development committee and to follow the guidelines as under: 1. President – Member of Legislative Assembly of the respective constituency. 2. Vice President – Local representative nominated by the MLA. 3. Members – (a) Four members from the students' parents, of which one parent should be a female and one parent should belong to Scheduled Caste or Scheduled Tribe. (b) A person interested in the education field. (c) Two members from the students' representatives, of which one should be a girl student (this is not applicable for boys college). (d) Vice Principal or Senior Teacher from the respective composite Pre‑University college. (e) Senior Lecturer of Pre‑University College. 4. Secretary – Principal of the respective Pre‑University College (S.H. Curiyavar) Under Secretary to the Government Department of Education (Pre‑University Education)., Furthermore, learned counsels for the appellants have also vehemently argued that the Government Order dated 5‑2‑2022 refers to some judgments which do not deal with the issue of wearing hijab, but still it is concluded that use of headscarf or a garment covering the head is not in violation of Article 25. It is averred that though the operative part of the order seems to be facially religious‑neutral, it targets a particular community in effect. It is also contended that the Karnataka High Court has supplanted the reasons to uphold the said Government Order even though the reasons recorded therein are not sufficient to prohibit the use of headscarf. Hence, at the outset, the State ought to prove the jurisdiction to issue such a circular., The alternate argument is that the College Development Committee, a non‑statutory authority, cannot exercise power of the State Government under Part III of the Constitution. It was contended that the law which can restrict the right of an individual under Article 19(1)(a), Article 25(2), or any other right falling within Part III of the Constitution, can only be by way of a law made by the competent legislature. Mr. Shoeb Alam referred to judgments of the Supreme Court of India reported as State of Madhya Pradesh and another versus Thakur Bharat Singh, State of West Bengal versus Anwar Ali Sarkar, Bishambhar Dayal Chandra Mohan and others versus State of Uttar Pradesh and others, and a recent order passed by the Supreme Court of India reported as Pharmacy Council of India versus Rajeev College of Pharmacy and others to support such contention. However, Mr. Dushyant Dave argued that the rights in Part III of the Constitution can be restricted or regulated by a statute made by a competent legislature and also includes any law as defined under Article 13(2) and (3) of the Constitution. Article 13(2) and (3) of the Constitution are relevant for the purposes of the present proposition, which reads thus: 13. Laws inconsistent with or in derogation of the fundamental rights. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires, (a) law includes any ordinance, order, bye‑law, rule, regulation, notification, custom or usage having in the territory of India the force of law., I do not find any merit in the argument raised by the appellants. The College Development Committee is envisaged to be an in‑house mechanism to ensure better utilization of grants as well as maintaining academic standards and development of infrastructure. Such directions are relatable to sub‑section (3) of Sections 133 and 145 of the Act. In any case, the constitution of the College Development Committee is not in conflict with any of the provisions of the Act. The circular was published in the Karnataka Gazette, issued in exercise of the executive powers of the State, supplementing the provisions of the Act and not supplanting any of the provisions thereof., The Government Order is in two parts. The first part is the preamble which gives the background leading to the order impugned before the Karnataka High Court. The second part, i.e., the operative part of the order alone bears the Government Order number and date. The order mandates that the uniform prescribed by the College Development Committee or the Board of Management should be worn. The appellants have understood the order to be interfering with their essential religious practices., The executive power under Article 73 extends to all matters in respect of which the Parliament has power to make laws or under Article 162 in respect of the matters where the legislature of the State has power to make laws. The question is whether restrictions can be imposed by the executive in respect of the rights specified under Part III such as Articles 19, 21, 25 and 1. There is no dispute about the proposition that in the absence of any statute or statutory rule, but in exercise of the executive power, the State can issue an executive order. However, the argument raised is that restrictions under Part III of the Constitution can only be imposed by way of a statutory law and not by way of an executive power., Now, coming to the judgments referred to by the learned counsel for the appellant for the abovementioned contention; in Anwar Ali Sarkar, this Court was considering the conviction of the respondent by the Special Court established under Section 19 of the West Bengal Special Courts Ordinance, 1949, which was replaced by the West Bengal Special Courts Act, 1950. It was the provision of the Act which was set aside being discriminatory. This Court, inter alia, held that this is further made clear by defining “law” in Article 13, which renders void any law which takes away or abridges the rights conferred by Part III, as including, among other things, any “order” or “notification”, so that even executive orders or notifications must not infringe Article 14. The trilogy of articles thus ensures non‑discrimination in State action both in the legislative and the administrative spheres in the democratic republic of India. Thus, the said judgment is not helpful to the argument raised., In Thakur Bharat Singh, this Court dismissed an appeal filed by the State against the judgment of the High Court reported as Thakur Bharat Singh versus State of Madhya Pradesh and another. The High Court struck down Section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959 when the writ petitioner was prohibited to be in Raipur District and was directed to remain within the municipal limits of Jhabua District and was also ordered to report daily to the Police Station Officer, Jhabua. The High Court held that clauses (a) and (c) of Section 3(1) of the Act are valid, but clause (b) being violative of Article 19(1)(d) of the Constitution is invalid. Consequently, the direction made against the appellant under that clause was quashed., An appeal against the said judgment was dismissed by the Supreme Court of India wherein it held that the order made by the State in exercise of the authority conferred by Section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959 was invalid and that, for the acts done to the prejudice of the respondent after the declaration of emergency under Article 352, no immunity from the process of the Court could be claimed under Article 358 of the Constitution, since the order was not supported by any valid legislation., The aforementioned judgment is in respect of a statute enacted by a State Legislature, the provision of which was found to be invalid. The issue raised in that case has no parity with the facts of the present case., In Bishambhar Dayal Chandra Mohan, the State Government contended that the impugned teleprinter message dated 31 March 1981 was an executive instruction issued by the State Government under its powers under Article 162 of the Constitution for the due observance of the Uttar Pradesh Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978. The Court held that under Article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause (6)., There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300‑A provides that no person shall be deprived of his property save by authority of law. The State Government cannot, while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution and is therefore necessarily subject to Article 300‑A. The word law in the context of Article 300‑A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order having the force of law., The writ petitions filed by the dealers were dismissed. In that case, the restriction was put by an executive order, which was found to be a reasonable restriction in terms of Article 19(6) of the Constitution. Even that judgment does not aid the appellants and has no applicability to the facts of the present case., Reliance on a recent judgment of the Supreme Court of India reported as Pharmacy Council of India versus Rajeev College of Pharmacy and others is unfounded as it has no parity with the facts of the present case. The Pharmacy Council of India, an authority created under the Pharmacy Act, 1948, resolved on 17 July 2019 to put a moratorium on the opening of new pharmacy colleges for running diploma as well as degree courses in pharmacy for a period of five years. The appellant argued that Sections 3, 10 and 12 of the Pharmacy Act confer the power to regulate, therefore such power would include the power to prohibit also. The Supreme Court of India negated such an argument and held that the resolutions dated 17 July 2019 and 9 September 2019 of the Central Council of the appellant, which are in the nature of executive instructions, could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India, and therefore should be struck down., A perusal of the above judgment shows that an authority under the Act had put a moratorium on the opening of new pharmacy colleges, thus prohibiting the right conferred on an individual under Article 19(1)(g) of the Constitution. However, the moratorium was by virtue of a resolution not supported by any statute. Therefore, the judgment has no applicability to the facts of the present case., Furthermore, the Supreme Court of India in a judgment reported as Shri Dwarka Nath Tewari versus State of Bihar was considering Article 182 of the Bihar Education Code. The Court found that Article 182 of the Code is not exercised under any statutory power and thus cannot deprive the petitioners of their rights in the properties which were the subject matter of the writ petition., Law, as contemplated under Articles 19(2) and 25(2), falls within Part III of the Constitution. Therefore, law, as defined under Article 13(3), includes any ordinance, order, bylaw, rule, regulation, notification, custom or usage in the territory of India having the force of law. The order issued by the State Government would thus be a law within the meaning of Article 13(2) read with Article 13(3)(a), which is a valid exercise of power under Article 19(1)(a) read with Article 19(2), and Article 25(1) read with Article 25(2) of the Constitution., The Government Order relates to the powers conferred on the executive under Section 133 of the Act and the rule‑making power of the State under Article 162 of the Constitution. The Government Order does not run contrary to any of the provisions of the Act and the rules framed thereunder. Therefore, the executive was well within its jurisdiction to ensure that the students come in the uniform prescribed by the College Development Committee., The College Development Committee so constituted consists of a Member of the Legislative Assembly, representatives of the students, faculty members etc. Therefore, such authority is a representative body of the students and teachers including the Member of the Legislative Assembly and the Principal of the College as Member Secretary. Such Committee cannot be said to be beyond the scope of Section 143 of the Act. Such authority established in exercise of the powers vested with the State Government is not in contravention of any of the provisions of the statute. In terms of Article 162 of the Constitution, the State Government in exercise of its executive power could create the College Development Committee as such Committee does not contravene any of the provisions of the statute or the rules framed thereunder., In view of the above, I find that the State Government has the power to constitute a College Development Committee by notification dated 31‑1‑2014 in terms of Section 143 of the Act. The State Government could confer its power to be exercised by such office or authority subordinate to the State Government. It is noted that the word authority has not been defined under the Act. The authority contemplated by the Act could be a non‑statutory authority such as a person or a group of persons who may be authorized to exercise powers under Section 143 of the Act., Further, it is well settled that executive powers can be used to supplement the statutory rules. The Supreme Court of India in a judgment reported as Sant Ram Sharma versus State of Rajasthan and others held that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed thereunder. The Supreme Court of India in a judgment reported as Union of India and another versus Ashok Kumar Aggarwal held that an authority cannot issue orders, office memoranda or executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant them. Such instructions should be subservient to the statutory provisions., The preamble of the Act aims towards fostering harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education., The curricula under Section 7(2) of the Act is to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, to renounce practices derogatory to the dignity of women, to value and preserve the rich heritage of our composite culture, to develop scientific temper, humanism and the spirit of inquiry and reform and to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement. The provision is substantially pari materia with the fundamental duties enumerated in Part IV‑A of the Constitution inserted by the Forty‑second Amendment, required to be followed by the institutions covered under the Act., The provisions show that the mandate of the statute is to renounce sectional diversities, to develop humanism and to cultivate a scientific and secular outlook. The sectarian approach that certain students will carry their religious beliefs to secular schools run by the State would be antithesis of the mandate of the statute. All students need to act and follow the discipline of the school. One of the steps required to ensure uniformity while imparting education is to wear the uniform dress without any addition or subtraction. Any modification to the uniform would cease to be the uniform, defeating the very purpose of prescribing under Rule 11 and as mandated by the College Development Committee., Mr. Dushyant Dave referred to an extract which appears to be from a booklet published by the Department of Pre‑University Education containing guidelines for the year 2021‑2022. It is contended that such guidelines have contemplated that uniform is not mandatory and that some college principals and management committee members have imposed uniforms as mandatory, which is illegal. The relevant clause reads: Uniform is not mandatory for students studying in Pre‑University college under Government / Pre‑University Education Department / Education Act. But some college principals and management committee members have imposed uniforms as mandatory which is illegal. Any violation of the foregoing instructions will be taken seriously., In respect of the said contention, I find that the students were following the uniform prescribed by the College Development Committee. It is not the case of any of the students that they were not wearing uniform for the academic session 2021‑22. The only claim raised was in relation to the right to wear the headscarf during the academic year 2021‑22, the year in controversy, and to which the guidelines relate. The recognized educational institution in terms of Section 2(30) of the Act means an educational institution recognized under the Act and includes one deemed to be recognized thereunder. The recognition of educational institutions is contemplated by Section 36 of the Act whereas the educational institutions established and run by the State Government or by an authority sponsored by the Central or the State Government or by a local authority and approved by the competent authority shall be deemed to be the educational institution recognized under the Act. The students are not disputing the mandate to wear uniform. It appears that the guidelines have been made part of the brochure without taking into consideration Rule 11 of the Rules which contemplates that every recognised educational institution may specify its own set of uniform. Therefore, the guidelines run counter to the statutory Rule 11 framed in exercise of the powers conferred under Section 145 of the Act. Thus, the uniform, having been prescribed in terms of the Act and the rules framed thereunder, the guidelines to the contrary are non‑existent and in any case had not been followed during the academic year in question., The Government Order dated 5‑2‑2022 contemplates that the prescribed uniform should be followed. It necessarily excludes all religious symbols visible to the naked eye. The argument that the students wear Rudraksha or a Cross is mentioned only to deal with an argument so raised. Anything worn by the students under his or her shirt cannot be said to be objectionable in terms of the Government Order issued., In view of the above enunciation of law, I do not find that the constitution of the College Development Committee contravenes any of the provisions of the Act or the Rules made thereunder or that the regulation of uniform by such Committee is beyond its scope., Question (iii) – What is the ambit and scope of the right to freedom of conscience and religion under Article 25?, At the outset, it is pertinent to mention that the Constitution does not define the term religion, though it is used in Articles 15, 16, 25, 26, 27, 28 and 30. The articles which are under consideration for the purpose of the present appeals read thus: Article 14 – Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) … Article 19 – Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression; … (2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. … Article 25 – Freedom of conscience and free profession, practice and propagation of religion.
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Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; providing for social welfare and reform or the opening of Hindu religious institutions of a public character to all classes and sections of Hindus., Mister Huzefa Ahmadi and Mister Dushyant Dave quoted from the proceedings of the Constituent Assembly Debates to illustrate the thought process that shaped the Constitution of India. Mister Ahmadi relied upon the speech of Doctor B.R. Ambedkar to the Constituent Assembly on 25 November 1949 (Constituent Assembly Debates, Volume XI, page 979) which stated: 'The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.', Mister Dave referred to the report dated 25 May 1949 of the Advisory Committee on Minorities of the Constituent Assembly, presided over by Honourable Sardar Vallabhbhai Patel, which stated: 'It is not our intention to commit the minorities to a particular position in a hurry. If they have honestly concluded that in the changed conditions of this country it is in the interest of all to lay down real and genuine foundations of a secular State, then nothing is better for the minorities than to trust the good sense and sense of fairness of the majority, and to place confidence in them. So also it is for us who happen to be in a majority to think about what the minorities feel, and how we would be in their position.', In the Constituent Assembly Debates, Volume V, dated 27 August 1947, it was opined: 'The Draft Constitution is also criticised because of the safeguards it provides for minorities. In this, the Drafting Committee has no responsibility. It follows the decisions of the Constituent Assembly. Speaking for myself, I have no doubt that the Constituent Assembly has acted wisely in providing such safeguards for minorities as it has done. In this country both the minorities and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognize the existence of the minorities to start with. It must also be such that it will enable majorities and minorities to merge someday.', In the Constituent Assembly Debate dated 6 December 1948, while considering the draft Article 19, which is now Article 25, Pandit Lakshmi Kanta Maitra expressed his views: 'By secular State, as I understand it, is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion. In other words, in the affairs of the State the professing of any particular religion will not be taken into consideration at all. This I consider to be the essence of a secular state.', Mister Kamat also referred to the proposed amendment moved by Mister Tajamul Husain on 3 December 1948 proposing: 'No person shall have any visible sign or mark or name, and no person shall wear any dress whereby his religion may be recognised.', The argument raised is that since the amendment was not accepted, citizens have a right to visible signs, marks, names or dress so that their religion may be recognised. Although the amendment was not moved, the fact that such discussion took place shows that the Constituent Assembly was aware of the issue of clothing. Since the Constitution is silent about the clothes to be worn by citizens, the concern shown by a member should not be ignored. Mister Tajamul Husain further argued: 'Religion is a private affair between man and his God. It has no concern with anyone else in the world. What is the religion of others is also no concern of mine. Then why have visible signs by which one's religion may be recognised? In all civilized countries in Europe and America there is no visible sign or mark by which a man can be recognised as to what religion he professes. I do not want these things. I know I am one hundred years ahead of the present times. In civilized countries in England there was a time when there was no uniformity of dress. In this country you find all sorts of dresses: dhotis, pyjamas, kurtas, shirts, and even nakedness. That was the same in England at one time. I am sorry for the interruption of the Maulana. My name I will change when the whole country adopts my resolution, then he will not be able to find out what I am. There was an Act passed in Parliament by which there was uniformity of dress and now in England, Europe and America there is uniformity of dress. We are one nation. Let us all have one kind of dress, one kind of name, and no visible signs. In conclusion, we are going to be a secular State. We should not be recognised by our dress. If you have a particular kind of dress, you know at once that so-and-so is a Hindu or a Muslim. This should be done away with.' (Amendments 589 and 583 were not moved.), The learned Solicitor General referred to the speech of Doctor B.R. Ambedkar in the Constituent Assembly, Volume VII, page 781, which reads: 'The religious conceptions in this country are so vast that they cover every aspect of life from birth to death. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.', In respect of the Constituent Assembly Debates, the Supreme Court of India in A.K. Gopalan v. State of Madras held that the Court could only search for the objective intent of the legislature primarily in the words used in the enactment, aided by historical material such as reports of statutory committees. The Court did not place importance on the speeches made by some members of the Constituent Assembly in the debate on Article 15 (now Article 21). While individual opinions of members are not proper to construe a clause, reference to the debates may be permitted when a question arises whether a certain phrase was ever under consideration., In State of Travancore-Cochin & Others v. Bombay Company Ltd., the Supreme Court of India held that the speeches made by members of the Constituent Assembly in the course of debates on the draft Constitution are unwarranted as extrinsic aids to statutory interpretation, a principle that has been generally accepted in England and observed in Indian statutes., In a nine‑Judge Bench judgment in Indra Sawhney & Others v. Union of India, the Supreme Court of India held that what is said during the debates is not conclusive or binding upon the Court because several members may have expressed differing views, not all of which are reflected in the final provision. Therefore, the views of the members of the Constituent Assembly are not to be relied upon after this Court, in a number of judgments, has expressed the rights under Article 25 of the Constitution., Thus, the debates show the in‑depth knowledge of the members of the Constituent Assembly at that time, but more than seventy years later, with the interpretation of various provisions by the Constitutional Courts, it is not advisable to rely solely upon the views of individual members in such debates., Further, the argument of Mister Dave is that Article 25 protects religious practices and that the expression 'essential religious practice' has been wrongly used by this Court in Shayara Bano v. Union of India. It was contended that the judgment in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt did not use the expression 'essential religious practice'. Therefore, wearing a headscarf may not be essential, but is a religious practice, thus protected by Article 25., Doctor Dhawan, in support of his arguments, contended that the rights available to the students are the right to dress, free speech and expression not affecting public order or morality, and the right of privacy, relying upon judgments in National Legal Services Authority v. Union of India and K.S. Puttaswamy. He argued that wearing the hijab is an essential religious practice and that the action of the State is discriminatory on the grounds of religion and sex., Mister Tushar Mehta, learned Solicitor General appearing for the State, rebutted the arguments raised on behalf of the appellants and gave the background of the issuance of the Government Order dated 5 February 2022. He submitted that on 29 March 2013, the College Development Committee, Udupi, prescribed the uniform for girl students and that it had been followed since. On 31 January 2014, a circular was issued by the Government regarding the formation of a College Development Committee comprising, inter alia, the local member of the Legislative Assembly, representatives of parents, student representatives, teachers and the Principal of the Pre‑University College., On 23 June 2018, the College Development Committee, Udupi, prescribed a dress code for the students. On 31 December 2019, the College Development Committee of Kundapura Pre‑University College, Udupi, unanimously resolved that the uniform for the academic year would continue as prescribed in previous years., The students at the time of admission to the pre‑university course undertook to comply with all the rules and regulations of the Pre‑University College. Suddenly, in the middle of the academic term, the issue of hijab was raised on social media by activists of the Popular Front of India. Police papers were handed over to the High Court in a sealed cover as mentioned on page 126 of the order of the High Court, and a chargesheet has since been filed. Subsequently, representations were made by parents and/or students requesting that hijab be allowed in classrooms., The College Development Committee directed the maintenance of status quo. Five students thereafter filed Writ Petition No. 2146 of 2022 on 29 January 2022 seeking an interim prayer that they be allowed to continue attending school wearing headscarves. On 31 January 2022, the College Development Committee, Udupi, decided that students must not wear hijab in classrooms, and the Kundapura Pre‑University College resolved similarly on 2 February 2022. In these circumstances the Government issued the impugned order., It is contended that such directions were issued to the colleges or institutions and not to individual students as per the mandate of the Act. The preamble of the Act provides for the planned development of educational institutions, inculcating healthy educational practice, maintenance and improvement in the standards of education, better organization, discipline and control over educational institutions so as to cultivate a scientific and secular outlook through education. Section 133(2) of the Act empowers the State Government to give directions to any educational institution as in its opinion are necessary or expedient for carrying out the purposes of the Act. Therefore, the Government Order was issued to direct the colleges to ensure that wherever uniform is mandated by the College Development Committee or the Board of Management, it should be worn. If such uniform is not mandated, students should wear clothes which are in the interest of unity, equality and public order. The circular was issued to ensure compliance with the norm of uniform in a non‑discriminatory manner, irrespective of any religious faith of the students., The legality of Rule 11 of the Rules is not under challenge. Under that Rule, educational institutions have a right to prescribe a uniform to the students. The scope of judicial review of the decisions of educational institutions vis‑à‑vis their pupils is narrower than that of a purely administrative action. Reference was made to the Supreme Court of India in T.M.A. Pai Foundation where it was held: 'An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa.', In matters of campus discipline of educational institutions, the Court does not substitute its own views in place of the school authority except in a case of manifest injustice or where a decision does not pass the test of Wednesbury reasonableness. The Supreme Court of India in Chairman, J & K State Board of Education v. Feyaz Ahmed Malik held that the High Court had erred in attempting to devise a scheme to tackle mass malpractice in examinations. The Court emphasized that the duty concerning campus discipline and conduct of examinations primarily lies with the authorities of the institutions, and the Court may intervene only to correct errors in complying with rules, regulations or notifications or to remedy manifest injustice., In Ahmedabad St. Xavier's College Society & Others v. State of Gujarat, the Supreme Court of India held that educational institutions are temples of learning and therefore discipline is required to be maintained between the teacher and the taught., In Bihar State Madarasa Education Board v. Madarasa Hanfia Arabic College, the Supreme Court of India held that the State has power to regulate the educational needs and discipline of a minority institution. While minorities have the right to establish and administer educational institutions of their own choice, they have no right to misadminister, and the State may regulate management and administration in the interest of educational need and discipline without violating Article 30(1) of the Constitution., In Modern Dental College & Research Centre v. State of Madhya Pradesh, the Supreme Court of India held that the right under Article 19(1)(g) is not absolute but is subject to reasonable restrictions under clause (6) in the larger interest and welfare of the student community, to promote merit, achieve excellence and curb malpractices. Reasonableness must be determined having regard to the nature of the right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors, while keeping in view the directive principles of State policy., It has been argued that Article 25 of the Constitution must be given a conjunctive meaning. In Article 25(1), the term 'conscience' needs to be given not only the widest connotation but also an interconnected meaning. It is contended that it is wide enough to cover the use of hijab, which reflects an expression of conscience. The terms 'conscience', 'profess' and 'practice', as occurring in Article 25(1), are distinct yet interconnected. Practice necessarily includes conscience, and therefore both are inseparable., It is further submitted that the right to dress inheres in the right to freedom of speech and expression, right to identity, and the right to dignity under Article 21 of the Constitution of India. Restriction on dress, even in the context of uniform, must have a rational nexus with the object sought to be achieved. Dress has also been referred to as an expression of self. Muslim women wearing hijab is a symbolic expression of their identity as women who follow Islam. The wearing of hijab does not cause any issue of public disorder or disturbance. An arbitrary, unsubstantiated and illogical constraint imposed on the appearance of Muslim women and their choice of self‑presentation is constitutionally impermissible and an explicit violation of Article 19 guaranteed in the Constitution. The purpose of uniform is not to erase markers of individuality. By wearing the prescribed dress code, diverse distinctions among students would not evaporate. In multicultural societies, students should be taught to acknowledge, accept and respect diversities. The impugned Government Order is exclusionary and destructive of tolerance and diversity in the classroom. The classroom is expected to be uniform but not homogeneous., The Supreme Court of India in S.P. Mittal v. Union of India held that religion, undefined by the Constitution, is incapable of precise judicial definition. Religion is a matter of faith, belief and doctrine, concerning the conscience or spirit of man, capable of overt expression in word and deed such as worship or ritual. Some religions are easily identifiable, others are not, and many lie in a penumbral region., Further, in A.S. Narayana Deekshitulu, the Supreme Court of India held that a religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well‑being. Every religion must believe in a conscience and ethical and moral precepts. Whatever binds a man to his own conscience and whatever moral or ethical principles regulate the lives of men constitute religion as understood in the Constitution, fostering brotherhood, amity, fraternity and equality. Secular activities and aspects do not constitute religion., In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh, the Supreme Court of India held that the religious freedoms guaranteed by Articles 25 and 26 are intended to guide community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26 therefore strike a balance between the rigidity of religious belief and intrinsic restrictions, guaranteeing freedom of conscience to commune with the Creator and realize one's spiritual self., Thus, religion involves conscience and ethical and moral precepts. Freedom of conscience binds a man to his own conscience and the moral principles that regulate lives. There is a fine distinction between freedom of conscience and religion. The scope of protection under Article 25 goes beyond religious beliefs, affording all persons freedom to beliefs which may not necessarily be religious but may spring from one's conscience. Freedom of religion, on the other hand, grants the right to follow one's faith, which provides a set of ethical norms, rituals, observances, ceremonies and modes of worship., I need to examine the right to freedom of conscience and religion in light of the restrictions provided under Article 25(1) of the Constitution. Such right is not just subject to public order, morality and health but also to other provisions of Part III, including Article 14 which provides for equality before law. In T.M.A. Pai Foundation, the Supreme Court of India reiterated that Article 25(1) is not only subject to public order, morality and health, but also to other provisions of Part III. It observed: 'Article 25 gives to all persons the freedom of conscience and the right to freely profess, practise and propagate religion. This right, however, is not absolute. The opening words of Article 25(1) make this right subject to public order, morality and health, and also to the other provisions of Part III of the Constitution. This means that the right can be curtailed or regulated if its exercise would violate other provisions of Part III or is not in consonance with public order, morality and health. General law made by the Government contains provisions relating to public order, morality and health; these must be complied with and cannot be violated in the exercise of freedom of conscience or religion. For example, a person cannot propagate his religion in a manner that denigrates another religion or brings about dissatisfaction amongst people.', The object of the Government Order was to ensure parity amongst students in terms of uniform, to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly with other provisions of Part III as laid down under the restrictions of Article 25(1). Question (iv) asks: what is the ambit and scope of essential religious practices under Article 25 of the Constitution?, The appellants have contended that wearing a headscarf is an essential religious practice followed by Muslim women since time immemorial, provided for in their religious scriptures and thus essential to the religion. They argue that the impugned Government Order impinges upon their right to wear a headscarf as an essential religious practice and is violative of the right guaranteed under Article 25., To rebut the argument of essential religious practice, Mister Tushar Mehta relied upon the Supreme Court of India judgment in Commissioner of Police & Others v. Acharya Jagadishwarananda Avadhuta, wherein the Court held that an essential part of a religion means the core beliefs upon which a religion is founded. The test is whether the nature of the religion would be changed without that part or practice; if removal results in a fundamental change in the character or belief of the religion, it is an essential or integral part., The argument of the learned Solicitor General is that in the writ petition titled Aishat Shifa v. State of Karnataka, there is a reference to Verse 31 Chapter 24 and Verse 31 Chapter 34 of the Holy Quran. In Shaheena & Others v. State of Karnataka...
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(Writ Petition No. 3038 of 2022), the petitioners have quoted Verse 26 Chapter 7, Verse 31 Chapter 24 and Verse 59 Chapter 33 of the Holy Quran indicating that wearing of headscarf is part of the religious identity and (2004) 12 Supreme Court Cases 770 (Acharya Jagadishwarananda Avadhuta-II) essential in Islamic faith. The reliance was also placed upon the judgment of the Kerala High Court reported as Amnah Bint Basheer & Anr. v. Central Board of Secondary Education. It is contended by the learned Solicitor General that wearing of hijab may be a practice, it may be an ideal or a permissible practice, but to raise it to the level of an essential religious practice, something more is required to be pleaded and proved and it has to be shown that if the headscarf is not worn, the identity of the person as a believer in the faith itself would be jeopardised as explained by the Supreme Court of India in A.S. Narayana Deekshitulu and Acharya Jagadishwarananda Avadhuta-II, referred to above., Mr. Prabhuling K. Navadgi, learned Advocate General referred to Verse 31 of Surah 24 of the Holy Quran to assert that wearing of a headscarf is not an essential feature of the Islamic practice. It is argued that wearing of a headscarf may be a religious practice but is not essential to the religion as non‑following of such practice would not lead a believer to be non‑Muslim. The essential religious practices are those practices, if not followed, would render the person religion less. Learned Advocate General of the State of Karnataka argued that the protection under Article 25 is only to the essential religious practices and not to every religious belief. What constitutes the essential part of religion is primarily to be ascertained with reference to the doctrine of that religion itself. Article 25(2)(a) contemplates not the regulation by the State of all religious practices as such, but regulation of essential religious practices which are economic, commercial or political, though they are associated with religious practice., To appreciate the argument raised, I firstly need to examine the tenets of Muslim Law. In Mulla's Mohammedan Law, Fifth edition, 2019, it was stated that the Prophet Muhammad himself declared that the Holy Quran was revealed to him by the angel Gabriel in various portions and at different times. The texts are held by Muslims to be decisive as being the words of God transmitted to man through the Prophet. It is explained that there are four sources of Mohammedan Law, namely, (1) the Quran; (2) Hadis, i.e., precepts, actions and sayings of the Prophet Muhammad, not written down during his lifetime, but preserved by tradition and handed down by authorized persons; (3) Ijmaa, i.e., a concurrence of opinion of the companions of Muhammad and his disciples; and (4) Qiyas, being analogical deductions derived from a comparison of the first three sources when they do not apply to the particular case., Further, five duties have been laid down for the Muslims by the Prophet, the same are reproduced as under: (i) Kalma – It is the duty of every Muslim to recite the Kalma, which proclaims the unity of God and accepts Muhammad as the Prophet. (ii) Namaz – Every Muslim must perform prayers five times a day and on every Friday must offer the afternoon prayer at the Mosque. (iii) Zakat – It is the duty of every Muslim to offer Zakat or charity to the poor and needy. (iv) Ramzan – The most pious duty of every Muslim is to observe fasts in the holy month of Ramzan. (v) Haj – Every Muslim should perform Haj or pilgrimage to Mecca at least once in his lifetime., In the same Chapter, according to the Shariat, religious commandments (Hukum) of Allah are of five types, which reads thus: (i) Farz – Five daily prayers (namaz) one must perform strictly. (ii) Haram – Drinking wine is strictly forbidden. (iii) Mandub – Additional prayers on the Eid may be performed. (iv) Makrum – Eating certain kinds of fish is prohibited; one may refrain from it. (v) Jaiz or Mubah – Thousands of Jaiz things, such as travelling by air, are indifferent in Shariat., Chapter 7 also gives the description of statutes which have modified Mohammedan Law. Such statutes are as under: (i) The Indian Contract Act, 1872. (ii) The Usury Law Repeal Act. (iii) Usurious Loans Act. (iv) The Religious Tolerance Act. (v) The Freedom of Religion Act, 1850. (vi) The Waqf Validating Act. (vii) The Shariat Act, 1937. (viii) The Dissolution of Muslim Marriage Act, 1939. (ix) The Special Marriages Act, 1954. (When a Muslim solemnises or registers his marriage under this Act, such marriage and the liability for Mahr, the dissolution of such marriage and succession to the property of such Muslim and of the issue of such marriage is not governed by Muslim Law). (x) Constitution of India: The Muslim Law of Preemption stands subject to Article 19(1)(f) of the Constitution. (xi) Muslim law relating to crimes, procedure and slavery stands abrogated by laws enacted in this regard by the Legislature., There are various textbooks interpreting the verses of the Holy Quran. Reference is made to the interpretation given by Abdullah Yusuf Ali, English translation published alongside the original Arabic text, completed in Lahore on 4 April 1937. The interpretation by Yusuf Ali has been referred to by the Supreme Court of India in a number of judgments. Mr. Aditya Sondhi and Mohd. Nizamuddin Pasha have also referred to the Holy Quran by Abdullah Yusuf Ali in their written submissions. The English translation and meaning ascribed to such translation available online reads as follows: Surah 24 Verse 31 – And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what ordinarily appears thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their husbands' fathers, their sons, their husbands' sons, their brothers or their brothers' sons, their sisters' sons, their women or the slaves whom their right hands possess, or male servants free of physical needs, or small children who have no sense of the shame of sex; and that they should not strike their feet in order to draw attention to their hidden ornaments., The commentary explains that the need for modesty is the same in both men and women, but a greater amount of privacy is required for women, especially in the matter of dress and the uncovering of the bosom. Zinah means both natural beauty and artificial ornaments, chiefly the former. The woman is asked not to make a display of her figure except to certain classes of people: her husband, near relatives living in the same house, her maid‑servants, slaves (though slavery has been abolished), old or infirm male servants, and infants or small children before they develop a sense of sex., Surah 33 Verse 36 – It is not fitting for a believer, man or woman, when a matter has been decided by Allah and His Messenger to have any option about their decision: if anyone disobeys Allah and His Messenger, he is indeed on a clearly wrong path. We must not put our own wisdom in competition with Allah’s wisdom. Allah’s decree is often known to us by the logic of facts. We must accept it loyally, and do the best we can to help in our own way to carry it out. We must make our will consonant to Allah’s will., The students in one of the writ petitions before the Kerala High Court referred to the following verses from the Holy Quran as reproduced in The Glorious Quran by Yusuf Ali: Surah 34 Verse 31 – The Unbelievers say: We shall neither believe in this scripture nor in any that came before it. Couldst thou but see when the wrongdoers will be made to stand before their Lord, throwing back the word of blame on one another! Those who had been despised will say to the arrogant ones: Had it not been for you, we should certainly have been believers!, Surah 33 Verse 59 – O Prophet! Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons when abroad: that is most convenient, that they should be known as such and not be molested. And Allah is Oft‑Forgiving, Most Merciful. The term jilbab (plural jalabib) denotes an outer garment, a long gown covering the whole body or a cloak covering the neck and bosom. The object was not to restrict the liberty of women but to protect them from harm and molestation., Surah 7 Verse 26 – O children of Adam! We have bestowed raiment upon you to cover your shame, as well as to be an adornment to you. But the raiment of righteousness is the best. Such are among the signs of Allah, that they may receive admonition. Spiritually, Allah created man bare and alone; the soul in its naked purity knew no shame because it knew no guilt. After it was touched by guilt, its thoughts and deeds became its clothing and adornments, good or bad, according to the inner motives., The Hedaya, commentary on Islamic Laws, Second edition, was published in April 1870. The reprint, word‑to‑word, line‑to‑line and page‑to‑page, was published in 1979 by Kitab Bhavan, New Delhi. The interpretation of the Holy Quran in the Hedaya has been quoted by the Supreme Court of India in a number of judgments. Volume I, Book VI of Vows is now regulated by the Penal Code (Note at the end of Volume I); Volume II, Book VIII relating to Larceny stands omitted as now regulated by Penal Code, Act No. XLV of 1860; Book V and XII dealing with Ittak, or the manumission of slaves, stands deleted in consequence of the abolition of slavery by Act No. V of 1843., It is noted that the issue of essential religious practices in the context of Islamic law has been raised earlier before the Supreme Court of India, though for other practices. In a judgment reported as Mohd. Hanif Quareshi and others v. State of Bihar, the Court found the sacrifice of a cow to be not obligatory and essential to the religion of Islam. The Court held that there was no material on record that would enable it to say that the sacrifice of a cow on that day was an obligatory overt act for a Muslim to exhibit his religious belief., Coming now to the arguments as to the violation of the petitioners' fundamental rights, it will be convenient to take up first the complaint founded on Article 25(1). What materials are placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam? The arguments relied upon Surah XXII, verses 28 and 33, and Surah VIII. The Holy book enjoins that people should pray unto the Lord and make sacrifice. No affidavit was placed before us by any Maulana explaining the implications of those verses. Hamilton's translation of Hedaya Book XLIII at page 592 states that it is the duty of every free Muslim, arrived at the age of maturity, to offer a sacrifice on the Eid al‑Kurban, provided he possesses Nisab and is not a traveller. The sacrifice established for one person is a goat and that for seven a cow or a camel. It is therefore optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The fact that an option exists runs counter to the notion of an obligatory duty. It was pointed out that a person with six other family members may afford to sacrifice a cow but may not be able to sacrifice seven goats. No material on record enables us to say that the sacrifice of a cow on that day is an obligatory overt act for a Muslim to exhibit his religious belief., In Mohd. Ahmed Khan v. Shah Bano Begum & Others, the Supreme Court of India held that the provisions of Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after divorce. Although the effect of that judgment was later nullified by a statute, the fact remains that the personal law was not approved by the Court. The Court observed that the statements in the textbooks are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide maintenance to a divorced wife who is unable to maintain herself. One must consider the entire conspectus of Muslim Personal Law to determine the extent, both in quantum and in duration, of the husband's liability. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect. The sum settled as Mahr is generally expected to take care of the ordinary requirements of the wife during the marriage and after, but the provisions do not countenance cases where the wife is unable to maintain herself after divorce., The Constitution Bench in Dr. M. Ismail Faruqui & Others v. Union of India & Others held that offering of prayer or worship is a religious practice, but its offering at every location would not be an essential or integral part of such religious practice unless the place has particular significance for that religion. The Court noted that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right to practise, profess and propagate religion guaranteed under Article 25 does not necessarily include the right to acquire or possess property, nor does it extend to the right of worship at any and every place of worship so that hindrance to worship at a particular place may infringe the religious freedom guaranteed under Articles 25 and 26. The protection under Articles 25 and 26 is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of the religion., The Court further held that while the offer of prayer or worship is a religious practice, its offering at every location would not be an essential or integral part of such religious practice unless the place has particular significance for that religion. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open spaces., Later, a three‑Judge Bench judgment of this Court reported as Javed & Others v. State of Haryana & Others negated the argument that no religious scripture or authority has been brought to the notice of the Court which provides that marrying less than four women or abstaining from procreating a child from each wife would be irreligious or offensive to the dictates of the religion. The Court held that Muslim law permits marrying four women, but the personal law nowhere mandates it as a duty. No religious scripture or authority was brought to notice that marrying less than four women or abstaining from procreating a child from each wife in case of permitted polygamy would be irreligious or offensive., In Shayara Bano, Justice Nariman, speaking for himself and Justice Lalit, noted that a practice does not acquire the sanction of religion simply because it is permitted and applied the essential religious practices test. The Court held that triple talaq is only a form of talaq permissible in law, but is considered sinful by the Hanafi school which tolerates it. Applying the test stated in Acharya Jagadishwarananda, it is clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim's eyes, will not change without this practice., Justice Kurian Joseph, concurring with Justices Nariman and Lalit, held that on examination of the Holy Quran and Islamic legal scholarship, the practice of triple talaq could not be considered an essential religious practice. He opined that merely because a practice has continued for a long time, that by itself cannot make it valid if it has been expressly declared impermissible., The judgments referred to above had the direct or indirect effect on modifying the understanding of the verses of the Holy Quran, apart from the statutes mentioned by Mulla. But I would examine the question that if the believers of the faith hold an opinion that wearing of hijab is an essential religious practice, whether the students can seek to carry their religious beliefs and symbols to a secular school., A reading of the judgment in Sri Shirur Mutt shows an argument that secular activities which may be associated with religion but do not constitute an essential part of it are amenable to State regulation. The power to legislate in respect of all secular activities was not accepted. The question examined was the scope of clause (b) of Article 26 which speaks of management of its own affairs in matters of religion. The language suggests that there could be other affairs of a religious denomination which are not matters of religion and to which the guarantee would not apply. The Court held that what constitutes an essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself., In Ratilal Panachand Gandhi v. State of Bombay, it was held that religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines and the distinction between matters of religion and those of secular administration of religious properties may, at times, appear thin. In cases of doubt, the court should take a common‑sense view and be actuated by considerations of practical necessity., In Durgah Committee, Ajmer v. Syed Hussain Ali, the challenge to the Durgah Khwaja Saheb Act 1955 was examined under freedom guaranteed under Article 26(1) and (d) of the Constitution. The Court quoted Sri Shirur Mutt to say that the word religion has not been defined in the Constitution and is hardly susceptible to a rigid definition. It was held that practices, though religious, may have sprung from merely superstitious beliefs and may be extraneous and unessential accretions to religion; such practices cannot be accepted unless they constitute an essential and integral part of a religion, and their claim for protection under Article 26 must be carefully scrutinised., In Sri Venkataramana Devaru & Others v. State of Mysore & Others, the question examined was whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Article 26(b) is subject to, and can be controlled by, a law protected by Article 25(2)(b).
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It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression personal liberty as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Supreme Court of India should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by the Supreme Court of India in R.C. Cooper case (Rustom Cawasjee Cooper v. Union of India, (1970) 2 SCC 298) and that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression personal liberty in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). The expression personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have ..., In St. Stephen's College v. University of Delhi, the Supreme Court of India held that it is essential that there should be proper mix of students of different communities in all educational institutions. It has been held as under: Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have a relatively homogeneous society. It may lead to religious bigotry which is the bane of mankind. In nation building with secular character, sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a melting pot in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions., In Navtej Singh Johar & Ors. v. Union of India, the freedom of expression was referred to observe that transgender persons have a right to express their self‑identified gender by way of speech, mannerism, behavior, presentation and clothing. The judgment was relied upon to submit that the right to wear particular clothing emerges from the right of dignity enshrined under Article 21 of the Constitution. In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, the Supreme Court of India noted that gender identity is an important aspect of personal identity and is inherent to a person. It held that transgender persons have the right to express their self‑identified gender by way of speech, mannerism, behaviour, presentation and clothing. The Court also noted that, like gender identity, sexual orientation is integral to one's personality, and is a basic aspect of self‑determination, dignity and freedom. The proposition that sexual orientation is integral to one's personality and identity was affirmed by the Constitution Bench in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, paragraphs 144, 145 and 147., The object of the Act is to maintain discipline and control over the educational institutions in the State with a view to foster the harmonious development of the mental and physical faculties of the students. Therefore, discipline and control are with regard to educational institutions, and not with regard to students. Under Section 5 of the Act, the State Government's endeavour is to promote the education of the handicapped, backward classes and the weaker sections of the society including the economically weaker sections, whereas curricula under Section 7 includes promotion of national integration and inculcation of the sense of the duties of the citizens, enshrined under Article 51 of the Constitution. It is also pointed out that the State provides uniform to all the students from Class I to Class X as a part of its social obligations and to maintain parity with all students studying in the Government Schools without any distinction of caste, creed, sex or religion., Sections 15(b) and 39(b) & (c) of the Act delineate the circumstances for a reasonable excuse for non‑attendance of the child at an approved school. One of the accepted excuses is when religious instructions not approved by the parents are made compulsory. Sections 39(1)(b) and (c) deal with withdrawal of recognition to such schools which deny admission to any citizen on grounds of religion, race, caste, language or where there is direct or indirect encouragement in the educational institution of any propaganda or practice wounding the religious feelings of any class of citizens of India., Rule 11 of the Rules has mandated the recognized educational institutions, including private institutions, to prescribe uniforms. Once the uniform is fixed, it shall not be changed for the period of the next five years and when it is intended to be changed, notice shall be given to the parents at least one year in advance. It is thus argued that specifications regarding disallowance of hijab were applied abruptly at the end of the academic session and also applied retrospectively when the girls had been stopped from entering school on or about 31 December 2021, though the Government Order was notified on 5 February 2022., I do not find any merit in the above arguments raised by the appellants. The Government Order is in exercise of the executive powers of the State. The reasons for an enactment of a statute, rules and statutory order are not required to be part of it. It is only when the issue of constitutionality is raised that the executive is required to satisfy the Supreme Court of India about the legality of action taken. The right under Article 19(1)(a) as a right of expression to dress as per one's own will, however, is also subject to reasonable restrictions under sub‑clause (2) of Article 19. The State has not put a restriction on the exercise of the right conferred under Article 19(1)(a) but has regulated the same in a manner that during school hours on working days and in the class, the students shall wear the uniform as prescribed. Since it is a regulatory provision for wearing of uniform, the decision of the State Government mandating the College Development Committee to ensure the students wear the uniform as prescribed does not violate the freedom guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14. The College Development Committee is constituted in terms of the statutory provisions and, therefore, the direction of the State that the College Development Committee shall ensure that the students wear the dress as prescribed cannot be said to be violative of Part III of the Constitution., The test of invasion of Article 19(1)(a) is required to be examined by the doctrine of pith and substance in view of the judgment of the Supreme Court of India reported as Bachan Singh v. State of Punjab, wherein the Court held as under: From a survey of the cases noticed above, a comprehensive test which can be formulated may be restated as under: Does the impugned law, in its pith and substance, whatever may be its form and object, deal with any of the fundamental rights conferred by Article 19(1)? If it does, does it abridge or abrogate any of those rights? And even if it does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), is the direct and inevitable effect of the impugned law such as to abridge or abrogate any of those rights? The mere fact that the impugned law incidentally, remotely or collaterally has the effect of abriding or abrogating those rights will not satisfy the test. If the answer to the above queries is affirmative, the impugned law in order to be valid must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under clause (1) of Article 19 is merely incidental, indirect, remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be available for judging its validity., It is to be observed that the Act, Rules and the orders issued under the said Act were enacted to provide for better organization, development, discipline and control of the educational institutions in the State. The primary object was encouraging holistic development through education and its various facets. The prescribing of uniform is only an incidental action in furtherance of the core object of the Act. Therefore, keeping in view Bachan Singh, some incidental effect on the right under Article 19(1)(a) cannot be said to be an unreasonable restriction, also being mindful of the fact that it is not an absolute right., The freedom of expression under Article 19(1)(a) of the Constitution means the right to express one's opinions by word of mouth, printing, picture, or in any other manner. It includes the freedom of communication and the right to propagate or publish one's opinion. The communication of ideas could be made through any medium, newspaper, magazine or movie. Such right is, however, subject to reasonable restrictions on grounds set out under Article 19(2) of the Constitution., Further, the right to privacy as crystallized in the Constitution Bench judgment of K.S. Puttaswamy has to be read in the context of other provisions of the Constitution in the present appeals. The Supreme Court of India laid down as under: The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self‑determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha‑suffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self‑determination., It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter is conceded at the Bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on a case‑to‑case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles. Having emphatically interpreted the Constitution's liberty guarantee to contain a fundamental right to privacy, it is necessary to outline the manner in which such a right to privacy can be limited. The right is subject to reasonable regulations made by the State to protect legitimate State interests or public interest. However, when it comes to restrictions on this right, the drill of various articles to which the right relates must be scrupulously followed. For example, if the restraint on privacy is over fundamental personal choices that an individual is to make, State action can be restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and under Article 21 read with Article 19(1)(a) only if it relates to the subjects mentioned in Article 19(2) and the tests laid down by the Supreme Court of India for such legislation or subordinate legislation to pass muster. Each of the tests evolved by the Supreme Court of India, qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in order that State action pass muster. In the ultimate analysis, the balancing act that is to be carried out between individual, societal and State interests must be left to the training and expertise of the judicial mind., The right to privacy, as already observed, is not absolute. The right to privacy, falling in Part III of the Constitution, may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, as would the provisos to different fundamental rights, dependent on where the right to privacy would arise. The public interest element would be another aspect., In a Constitution Bench judgment reported as I.R. Coelho v. State of Tamil Nadu, the Supreme Court of India held that it can no longer be stated that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by State authorities. The Court observed that post‑Maneka Gandhi's case it is clear that the development of fundamental rights has been such that it no longer involves the interpretation of rights as isolated protections but they collectively form a comprehensive test against the arbitrary exercise of State power in any area that occurs as an inevitable consequence. The protection of fundamental rights has, therefore, been considerably widened., Thus, the rights of citizens of this country cannot be compartmentalized into one right or the other. The rights of citizens have to be read together so as to provide a purposeful meaning to Part III of the Constitution. All the Fundamental Rights under Part III of the Constitution are to be read in aid of each other. They constitute a bouquet of rights which cannot be read in isolation and have to be read together as a whole., However, it is to be noted that none of the fundamental rights is absolute. The curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness. The intent and object of the Government Order is only to maintain uniformity amongst the students by adherence to the prescribed uniform. It is reasonable as the same has the effect of regulation of the right guaranteed under Article 19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and do meet the injunction of reasonableness for the purposes of Article 21 and Article 14., Question (vi) – Whether the Government Order impinges upon the constitutional promise of fraternity and dignity under the Preamble as well as fundamental duties enumerated under Article 51A sub‑clauses (e) and (f)?, Mr. Ahmadi has argued that the impugned Government Order dated 5 February 2002 impinges upon the constitutional promise of fraternity as mentioned in the Preamble as well as in the fundamental duties enumerated in Article 51A(e) and (f). It is argued that liberty, equality and fraternity constitute the trinity of constitutional values to invoke horizontal and social sensitivity towards inequalities. It is contended that liberty is of thought, expression, belief, faith and worship; equality is of status and opportunity; and fraternity assures dignity of the individual., In Indra Sawhney, Honorable Justice P. B. Sawant said that inequality ill‑favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the Preamble of the Constitution, of fraternity assuring the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as equality of opportunity is not ensured to all., This Court in a judgment reported as Subramanian Swamy v. Union of India, Ministry of Law & Ors. had the occasion to interpret the term fraternity as the constitutional value which is to be cultivated by the people themselves as part of their social behaviour. It is to be understood in the breed of homogeneity in a positive sense and not to trample dissent and diversity. The Court observed as under: The term fraternity has a significant place in the history of constitutional law. It has, in fact, come into prominence after the French Revolution. The motto of Republican France echoes: Liberté, égalité, fraternité, or liberty, equality, fraternity. The term fraternity has an animating effect in the constitutional spectrum. The Preamble states that it is a constitutional duty to promote fraternity assuring the dignity of the individual. Fraternity is a preambular promise., Fraternity as a concept is characteristically different from the other constitutional goals. It has a keen bond of sorority with other concepts and must be understood in the breed of homogeneity in a positive sense and not to trample dissent and diversity. It is neither isolated nor lonely. The idea of fraternity is recognised as a constitutional norm and a precept. It is a constitutional virtue that is required to be sustained and nourished. It is a constitutional value which is to be cultivated by the people themselves as part of their social behaviour. There are two schools of thought; one canvassing individual liberalisation and the other advocating protection of an individual as a member of the collective. The individual should have all the rights under the Constitution but simultaneously has the responsibility to live up to constitutional values like essential brotherhood, the fraternity that strengthens societal interest. Fraternity means brotherhood and common interest. The right to censure and criticise does not conflict with the constitutional objective to promote fraternity. Brotherhood does not abrogate the concept of criticism. In fact, brothers can and should be critical. Fault‑finding and disagreement is required even when it leads to individual or group disquiet. The dignity of an individual is extremely important., Reference is also made to a three‑Judge Bench judgment of the Supreme Court of India in Prathvi Raj Chauhan v. Union of India & Ors., wherein it was observed that there is a preambular assurance that the Republic would be one which guarantees to its people liberty, dignity, equality of status and opportunity and fraternity. It is fraternity, poignantly embedded through the provisions of Part III, which assures true equality, where the State treats all alike, assures the benefits of growth and prosperity to all, with equal liberties to all, and guarantees that every citizen treats every other citizen alike., The making of this provision and others, in my view, is impelled by the trinity of the preambular vision that the Constitution makers gave to this country. In my opinion, liberty, equality and fraternity are intimately linked. The right to equality, without liberty or fraternity, would be chimerical as the concept presently known would be reduced to equality among equals, a mere husk of the grand vision of the Constitution. Likewise, liberty without equality or fraternity can result in the perpetuation of existing inequalities and, worse, result in licence to indulge in society's basest practices. It is fraternity, poignantly embedded through the provisions of Part III, which assures true equality, where the State treats all alike, assures the benefits of growth and prosperity to all, with equal liberties to all, and guarantees that every citizen treats every other citizen alike., It is to address problems of a segmented society that the provisions of the Constitution which give effect to the idea of fraternity, or bandhutva, referred to in the Preamble, and statutes like the Act, have been framed. These underline the social rather than collective resolve of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of their dreams. The question each of us has to address in everyday life is whether the prevailing situation of exclusion based on caste identity can be allowed to persist in a democracy committed to equality and the rule of law, and what each one of us can do to foster fraternity amongst all sections of the community without reducing the concept of fraternity to a ritualistic formality., The impugned Government Order was said to be an antithesis of diversity, though based upon a misunderstood fraternal behaviour when it is asserted that all school students studying in the State of Karnataka should behave in a fraternal manner, transcend their group identity and develop an orientation towards social justice. It is argued that the Government Order suggests that the ethic of fraternity is best served by complete erasure of all differences. It does not mean flattening out of differences or forced assimilation. Reference was made to a judgment of the Supreme Court of India reported as Tehseen S. Poonawalla v. Union of India & Ors., wherein it was held that the aim of our Constitution is unity in diversity and to impede any fissiparous tendencies for enriching the unity amongst Indians by assimilating the diversities. It was also argued that the Government Order uses the words unity and uniformity interchangeably and that uniformity is not a constitutional or statutory mandate, and has no nexus with unity. It is argued that plurality of voices celebrates the constitutionalist idea of a liberal democracy and ought not to be suppressed., The Court held as under: Freedom of speech and expression in different forms is the lifeblood of sustenance of all other rights and is the very seed for germinating the growth of democratic views. Plurality of voices celebrates the constitutionalist idea of a liberal democracy and ought not be suppressed. That is the idea and essence of our nation which cannot be, to borrow a line from Rabindranath Tagore, be broken up into fragments by narrow domestic walls of caste, creed, race, class or religion. Pluralism and tolerance are essential virtues and constitute the building blocks of a truly free and democratic society. Intolerance arising out of a dogmatic mindset sows the seeds of upheaval and has a chilling effect on freedom of thought and expression. Hence, tolerance has to be fostered and practised and not allowed to be diluted in any manner., In the present situation, the need to preserve and maintain unity amongst the fellow citizens of our country, who represent different castes, creeds and races, follow different religions and use multiple languages, ought to be discussed and accentuated. Our country must sustain, exalt and celebrate the feeling of solidarity and harmony so that the spirit of oneness is entrenched in the collective character. Without such harmony and understanding, we may unwittingly pave the path of disaster., Unity in the context of a nation means unity amongst the fellow citizens. It implies integration of the citizens whereby they embrace a feeling of 'We' with a sense of bonding which would definitely go a long way in holding Indian society together. French sociologist Emile Durkheim has said that when unity is based on heterogeneity and diversity, it can be described as organic solidarity. Durkheim's view is applicable to Indian society as it exhibits a completely organic social solidarity., Unity in diversity must be recognized as the most potent weapon in India's armoury which binds different and varied kinds of people in the solemn thread of humanity. This diversity is the strength of our nation and for realising this strength, it is sine qua non that we sustain it and shun schismatic tendencies. The unique feature of unity in diversity inculcates in the citizens the virtue of respecting the opinions and choices of others. Such respect imbibes the feeling of acceptance of plurality and elevates the idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity., Reliance is also placed upon the judgments of the Supreme Court of India in St. Stephen's College, Sri Adi Visheshwara of Kashi Vishwanath Temple, and State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia, wherein the concept of unity in diversity was held to be the constitutional aim. It was submitted that unity in diversity is the most potent weapon in India's armoury which binds different and varied kinds of people in the solemn thread of humanity. Unity in diversity inculcates in the citizens the virtue of respecting the opinions and choices of others. Such respect imbibes the feeling of acceptance of plurality and elevates the idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity., Referring to the National Education Policy, 2020, it is argued that schools are spaces of diversity and critical thinking. They are fraternal free‑thinking public places as the needs and expectations are different. The policy does not mention uniform or discipline. The fundamental principles which will guide the Indian education system as well as individual institutions are as follows: (i) full equity and inclusion as the cornerstone of all educational decisions to ensure that all students are able to thrive in the education system; (ii) ethics and human and constitutional values such as empathy, respect for others, cleanliness, courtesy, democratic spirit, spirit of service, respect for public property, scientific temper, liberty, responsibility, pluralism, equality and justice; (iii) students will be sensitized through this new school culture, brought in by teachers, trained social workers and counsellors as well as through corresponding changes to bring in an inclusive school curriculum. The school curriculum will include, early on, material on human values such as respect for all persons, empathy, tolerance, human rights, gender equality, non‑violence, global citizenship, inclusion and equity. It will also include more detailed knowledge of various cultures, religions, languages, gender identities, etc., to sensitize and develop respect for diversity. Any biases and stereotypes in school curriculum will be removed and more material will be included that is relevant and relatable to all communities. Once infrastructure and participation are in place, ensuring quality will be the key in retention of students, so that they, particularly girls and students from socio‑economically disadvantaged groups, do not lose interest in attending school. This will require a system of incentives for deploying teachers with knowledge of the local language to areas with high dropout rates, as well as overhauling the curriculum to make it more engaging and useful.
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In K.S. Puttaswamy, the distinction between private and public spaces was drawn and it was stated that both must be free to the extent that there should be freedom to think, without any direct or indirect pressures on thought and belief. Thus, the schools must give students the privacy and the freedom to think about their choices. Therefore, the Government Order creates an arbitrary barrier to education and to fraternal spaces., Not disputing with the above observations, it is important to interpret the expressions fraternity and dignity in view of the objective behind the Government Order. The concept of fraternity and dignity do not stand alone but have to be inferred from the context, circumstances and the purpose sought to be achieved. There is no dispute, as asserted in the written submissions, that the purpose of introducing fraternity as a constitutional value is to invoke horizontal or social sensitivity towards inequalities, in addition to the vertical, or top‑down political prescriptions towards inequalities. Fraternity is in fact social sensitivity. The students herein are in the age group of 15 to 18 years. The seed of education should germinate equally amongst all students. Therefore, the Preamble goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities and treating students alike before they attain the age of adulthood., The students have been given a uniform platform to grow and take quantum leap in their further pursuits. The homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols, if not worn during the classroom studies in a Pre‑University College., Still further, the Hindi word of fraternity is that is brotherhood. Brotherhood is amongst all the citizens of the Country and not of a particular community. Fraternity is the antithesis of a segmented society wherein all humans are treated equally and their innate genius is allowed an outlet by exposing them to equal opportunities., The argument is that the appellants seek equal access to public education where they would have the opportunity to fraternize across religious, class and gender boundaries, an opportunity which would not be available to them if they were to transfer to religious schools. Hence, the Government Order has created an arbitrary barrier to education and to fraternal spaces., I do not find any merit in the argument raised. Fraternity is a noble goal but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, sex and religion. The abstract idea of fraternity, as discussed in the judgments referred to by learned counsel for the appellants, has to be applied to the ground realities wherein some students wearing headscarf in a secular school run by the State Government would stand out and overtly appear differently. The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom. None of the judgments referred to by the learned counsel for the appellants deal with an issue of fraternity in respect of a section of the citizens who wish to carry their religious symbols to a classroom. The Constitutional goal as emanating from the Preamble would not be achieved if fraternity is given a narrow meaning in respect of the students identifying themselves with the religious symbols in the classroom., I do not find any merit in the argument raised that the use of the phrase behave in a fraternal manner by transcending their group identity as the young students in the impugned Order can be said to be violative of any law. Before a student goes for higher studies in colleges, she should not grow with a specific identity, but under the umbrella of equality guaranteed under Article 14 transcending the group identity. Religion, which is a private affair, has no meaning in a secular school run by the State. The students are free to profess their religion and carry out their religious activities other than when they are attending a classroom where religious identities should be left behind., Accordingly, I do not find that the Government Order impinges on the Constitutional promise of fraternity and dignity. Instead, it promotes an equal environment where such fraternal values can be imbibed and nurtured without any hindrance of any kind., Though, it is argued that wearing of a piece of cloth on the head does not violate or contravene the uniform prescribed. The dictionary meaning of word Uniform is as under: Blacks Law Dictionary (Uniform, Adjective) Conforming to one rule, mode, or unvarying standard; not different at different times or places; application to all places or divisions of a country. Cambridge English Dictionary (Uniform, noun) A particular set of clothes that has to be worn by the members of the same organization or group of people. A type of clothes that is connected with a particular group of people. Merriam Webster Dictionary (Uniform, noun) Dress of a distinctive design or fashion worn by members of a particular group and serving as a means of identification. (Adjective) Having always the same form, manner or degree: not varying or variable. Of the same form with others—conforming to one rule or more. Presenting an unvaried appearance of surface, pattern or colour (e.g., uniform procedures, uniform red brick houses)., The issue as to whether a person professing Islam can support a beard as a member of the Indian Air Force came up for consideration before the Single Bench of the Punjab and Haryana High Court in Number 786505‑N Leading Aircraftsman Ansari Aaftab Ahmed v. Union of India & Ors. The Single Bench referred to the principles of Islam by Maulana Wahiduddin Khan from his book Islam the Voice of Human Nature and the rules applicable to the airmen to hold that growing of beard violates the norms of uniform. Accordingly, the writ petitions were dismissed. An intra‑court appeal was also dismissed. The matter came up for hearing before the Supreme Court of India in a judgment reported as Mohammed Zubair Corporal Number 781467‑G v. Union of India & Ors. The Supreme Court of India dismissed the appeal finding no reason to take a view of the matter at variance with the view taken by the High Court. It was noticed that there are varying interpretations, one of which is that it is desirable to maintain a beard. Therefore, in respect of an airman employed by the Indian Air Force, beard was not found permissible in terms of the Rules framed., The uniform prescribed would lose its meaning if the student is permitted to add or subtract any part of uniform. The schools are nurseries for training the citizen for future endeavours. If the norms of the uniform in the school are permitted to be breached, then what kind of discipline is sought to be imparted to the students. The freedom of expression guaranteed under Article 19(1)(a) does not extend to the wearing of headscarf. Once the uniform is prescribed, all students are bound to follow the uniform so prescribed. The uniform is to assimilate the students without any distinction of rich or poor, irrespective of caste, creed or faith and for the harmonious development of the mental and physical faculties of the students and to cultivate a secular outlook. The wearing of hijab is not permitted only during the school time, therefore, the students can wear it everywhere else except in schools. The wearing of anything other than the uniform is not expected in schools run by the State as a secular institution. In a secular school maintained at the cost of the State, the State is competent to not permit anything other than the uniform., The argument that the wearing of a headscarf provides dignity to the girl students is also not tenable. The students are attending an all‑girls college. The students are at liberty to carry their religious symbols outside the schools but in pre‑university college, the students should look alike, feel alike, think alike and study together in a cohesive cordial atmosphere. That is the objective behind a uniform, so as to bring about uniformity in appearances. Question (vii) – Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right?, The argument is that hijab is an additional cloth worn on the head, and that it does not cause any harm to any other person. The argument is based upon Conscience & Religion (Article 25), Culture (Articles 29 and 51‑A(f)), Identity (Articles 19 and 21 Autonomy, Dignity, Choice) and Secularism (Articles 19 and 21 Autonomy, Dignity, Choice), therefore, the students have been wrongly denied admission to an educational institution on the basis of religion. The contention of the students is that by denying the right to wear headscarf, they have also been denied to attend the classes which stand foul with the mandate of clause (2) of Article 29., I do not find any merit in the said argument. The schools run by the State are open for admission irrespective of any religion, race, caste, language or any of them. Even the Act mandates that the students would be admitted without any restriction on such grounds. However, the students are required to follow the discipline of the school in the matter of uniform. They have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules., In M. Ajmal Khan v. Election Commission of India, represented by its Chief Election Commissioner, New Delhi‑I & Ors., the challenge was to the Electoral Roll with photographs particularly of Muslim Gosha Women in the eligible voters list. The argument was that wearing of purdah by Muslim women is one of the principles laid down in Holy Quran and it has to be strictly followed by Muslim women. Therefore, any interference with such religious practice would amount to interfering with the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India. The Madras High Court dismissed such writ petition holding that such direction of the Election Commission is not violative of Article 25 of the Constitution. It was held that the decision of the Election Commission of putting the photographs in the electoral roll was taken with a view to improving the fidelity of the electoral rolls and to check impersonation and eradicate bogus voting. Hence, the argument of the learned counsel that the decision violates the right to privacy is required to be rejected. The said judgment though is in the context of elections but the ratio thereof is applicable to the present matters, the education to a school by the State is a constitutional mandate to be carried out in a non‑discriminatory manner irrespective of caste, sex and religion., The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the State. It is not a denial of rights by the State but instead a voluntary act of the students. It would thus not amount to denial of right to education if a student, by choice, does not attend the school. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right. Question (viii) – Whether a student‑citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre‑condition for accessing education in a State institution?, Mr. Shoeb Alam argued that in the constitutional scheme, there cannot be any barter of fundamental rights for the enjoyment of a privilege or a right. It is argued that the State cannot attach a condition of barter for the grant of access to school/education available to a student under Article 21 and, in return, ask for a girl child to cede her right to wear the hijab inside the school, which is her fundamental right to privacy, dignity and autonomy. Reliance was placed upon a judgment of the Supreme Court of India reported as Re the Kerala Education Bill, 1957 Reference under Article 143(1) of the Constitution of India dealing with the issue of Kerala Education Bill. The provision authorized the State to take over the management of the educational institution as a pre‑condition for recognition and aid to the educational institution. The Supreme Court of India said to the following effect: 31. Therefore, the conditions imposed by the said Bill on aided institutions established and administered by minority communities, like the Christians, including the Anglo‑Indian community, will lead to the closing down of all these aided schools unless they are agreeable to surrender their fundamental right of management. No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1). The legislative powers conferred on the legislature of the States by Articles 245 and 246 are subject to the other provisions of the Constitution and certainly to the provisions of Part III which confers fundamental rights which are, therefore, binding on the State Legislature. The State Legislature cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the legislature cannot do indirectly what it certainly cannot do directly., In Nar Singh Pal v. Union of India & Ors., it was held that the casual labour does not mean that he had surrendered all his constitutional rights in favour of the respondents. It was thus submitted that fundamental rights under the Constitution cannot be bartered. They cannot be compromised, nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution., Reliance was also placed upon nine‑Judge Bench judgment in Ahmedabad St. Xavier's College Society wherein the said Act was declared as unconstitutional which warranted educational institutions to surrender their management to the State in order to get affiliation. The Supreme Court of India held that in this situation, the condition which involves surrender is as effective a deterrent to the exercise of the right under Article 30(1) as a direct prohibition would be. Thus considered, it is apparent that the religious minority does not voluntarily waive its right; it has been coerced because of the basic importance of the privilege involved, namely, affiliation. The Supreme Court of India held as under: 161. It is doubtful whether the fundamental right under Article 30(1) can be bartered away or surrendered by any voluntary act or that it can be waived. The reason is that the fundamental right is vested in a plurality of persons as a unit or, if we may say so, in a community of persons necessarily fluctuating. Can the present members of a minority community barter away or surrender the right under the article so as to bind its future members as a unit? The fundamental right is for the living generation. By a voluntary act of affiliation of an educational institution established and administered by a religious minority the past members of the community cannot surrender the right of the future members of that community. The future members of the community do not derive the right under Article 30(1) by succession or inheritance., The view of Honorable Justice D.Y. Chandrachud in K.S. Puttaswamy was referred where decisional autonomy has been discussed to comprehend intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. It was held as under: 248. Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture., Furthermore, Honorable Justice Chelameswar in K.S. Puttaswamy held as under: 372. Insofar as religious beliefs are concerned, a good deal of the misery our species suffer owes its existence to and centres around competing claims of the right to propagate religion. Constitution of India protects the liberty of all subjects guaranteeing the freedom of conscience and right to freely profess, practise and propagate religion. While the right to freely profess, practise and propagate religion may be a facet of free speech guaranteed under Article 19(1)(a), the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty. The choice of appearance and apparel are also aspects of the right to privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of the right to privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Article 25., I do not find that the Government Order takes away any right of a student available to her under Article 21 of the Constitution, or that it contemplates any barter of fundamental rights. The right to education under Article 21 continues to be available but it is the choice of the student to avail such right or not. The student is not expected to put a condition, that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school. The decision is of the student and not of school when the student opts not to adhere to the uniform rules. Question (ix) – Whether in the constitutional scheme, the State is obligated to ensure reasonable accommodation to its citizens?, The argument is that the school should reasonably accommodate the students for wearing headscarf as it does not interfere with any of the rights of the fellow students., Learned counsel for the appellants have referred to the judgments of the Supreme Court of India reported as Jeeja Ghosh & Anr. v. Union of India & Ors., Vikash Kumar v. Union Public Service Commission & Ors. and Ravinder Kumar Dhariwal & Anr. v. Union of India & Ors., This Court in Ravinder Kumar Dhariwal held that the reasonable accommodation principle is a component of the right of equality and the right against discrimination. The concept of reasonable accommodation arose in the context of accommodating a differently abled candidate, a member of the Central Railway Police Force to provide him an alternative suitable post., In Jeeja Ghosh, this Court was considering the rights of a differently‑abled person in using the facility of a flight. This Court found that Civil Aviation Requirements issued by Directorate General of Civil Aviation that no airline shall refuse to carry persons with disability or persons with reduced mobility and their assistive aids/devices, escorts and guide dogs including their presence in the cabin should be made available to the passengers at the time of check‑in. There was a violation of such directive by the airline when this Court held that equality not only implies preventing discrimination, but goes beyond in remedying discrimination in the society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation., In Vikash Kumar, this Court held as under: 62. if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individual's dignity and worth is respected., The argument of the appellants is however that they are seeking reasonable accommodation by the school authorities to permit them to attend school wearing matching headscarf/hijab in addition to the prescribed uniform which would be in conformity with the fundamental rights guaranteed under Article 25 and Article 21 of the Constitution., The concept of reasonable accommodation came to be introduced in respect of a special child or person. In Bijoe Emmanuel, it has been held that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the Constitution. In the aforesaid case, students, believers of Jehovah, expressed their inability to sing National Anthem though they were extending all respect when the National Anthem was to be played. In the case of the appellants, democracy is not in test but the question is whether the school, having prescribed the uniform, has a right to insist that all students wear the same uniform so as not to have inequality or disparity in the matter of wearing of uniform. Rule 11 in fact shows that any change in uniform can be affected only after serving notice to the parents and once uniform is prescribed, it cannot be changed in five years, meaning thereby that there is a continuity of the uniform and the period for which uniform is prescribed is to be followed., The argument that the Kendriya Vidyalaya across the country permit wearing of headscarf/hijab for Muslim girls, therefore, the same should be followed in the State as well. Kendriya Vidyalaya is an autonomous body under the Ministry of Education, Government of India. The purpose of the same is to meet the educational needs of children of transferable Central Government employees, including Defence and Para‑military personnel by providing a common programme of education. The two institutions, one under the State and other under the Central Government have independent organisations and scope of work. It may be that some State may permit headscarf and others do not. It is a decision taken by the State which cannot be said to be arbitrary on that ground alone., The parties have referred to some foreign judgments in support of their respective arguments including judgments on the question of reasonable accommodation. Ours is a unique country having people from different faiths and religions professing different practices. Therefore, the judgments of other countries having different social structure and polity would not provide a reasonable basis to determine the question of religious practices in such a wide and varied country like ours., Thus, though the principle of reasonable accommodation has been adopted by the Courts in our country, such contention does not arise in the present case. Constitutional goals such as secularism, fraternity, dignity mean equality for all, preference to none. The accommodation sought is contrary to the spirit of Article 14 as it would result in different treatment of students in secular schools who may be following varied religious beliefs., It has been argued that the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21 and 21A as well as the directive principles contained in Articles 39(f), 41, 46 and fundamental duties as mentioned in Article 51A. It was said to have the effect of restricting education for women., It is also submitted that the Government Order is not in the best interest of the child, especially the child's identity, social well‑being and physical, emotional and intellectual development in terms of Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015., Reference is also made to the Commission for Protection of Child Rights Act, 2005 enacted in view of the international treaty, Convention on the Rights of the Child, acceded by India on 11 December 1992. The Act was enacted to give effect to the policies adopted by the Government in this regard and the standards prescribed in the Convention. As per Article 1 of the Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. Article 14 of the Convention states that the State Parties shall respect the right of children to freedom of thought, conscience and religion and that freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. It is thus contended that in terms of the Convention to which India is a signatory, the child has a freedom of thought, conscience and religion and to manifest one's religion or belief, subject only to the limitations prescribed thereunder. Therefore, the restriction to use headscarf violates not only the fundamental rights guaranteed under the Constitution but also the International Convention., The Commission for Protection of Child Rights Act, 2005, enacted in pursuance of Convention on the Rights of the Child, has been referred to contemplate that the right of freedom of thought, conscience and religion are to be subservient to the rights provided under the Constitution of India. However, such rights cannot be larger than the rights available to the citizens under the Constitution. Therefore, freedom of religion in the Convention or the Act are not independent rights but have to be read along with the Constitutional provisions., The pre‑university college is open to all students of all castes and religions. The doors of such institutions are not closed to any student of any community. The object of the State is to provide an opportunity for the students to study in the secular schools. It is for the students to avail such a facility. If a particular student feels that she cannot compromise with the wearing of headscarf or of any other student to wear any outwardly religious symbol, the school would be justified not to allow such student, in the larger interest of treating all the students alike as a part of the mandate of Article 14, which is central to the theme of Part III of the Constitution. The headscarf is not permitted in the school for the students who are studying in Class 10+1 or 10+2. The students have many years ahead of them where they can carry on their religious faith but the Government Order mandating wearing of uniform cannot be faulted with since the object is in tune with the principles of the Constitution., The judgment of the Supreme Court of India reported as Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. held that the right of education has been read into right to life in Article 21. The argument is that a child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution. The right to education is thus a part of Article 21. The State has not put any restriction to avail such right of education. The right of education is available to every student. The State has only regulated the right in a manner that students come to the school to attend classes only in the prescribed uniform, and the same has been done to achieve the statutory and constitutional goals. The students cannot assert that they have a right to education but they would avail such right as per their own wish and in the manner which they consider appropriate. Schools are to prepare the students for their future endeavors in life. Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance.
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The argument that the school is insisting on surrendering or curtailing the right to wear a headscarf as a pre‑condition to access education is not tenable, as the right to education is available but the only condition is that students should attend classes in the prescribed uniform. The Government Order cannot be said to be contrary to the legitimate State goal of promoting literacy and education. Article 21A is not applicable as all the students are over fourteen years of age. The students have a right to education under Article 21, but not the right to insist on wearing something additional to the uniform in a secular school as a part of their religion., The Act itself contemplates providing opportunities and facilities in a healthy manner and maintaining the dignity of childhood and youth so that there is no moral or material abandonment. The uniform for the students has been prescribed so that there is no distinction between students coming from diverse backgrounds and each student grows in an environment of equality, fairness and equal opportunities. The uniform is an equaliser of inequalities and therefore prescribing a uniform for children at an impressionable age has a salutary effect on the mental development of the child to grow in an environment of oneness. This object is in tune with Article 39(f) of the Constitution of India, which reads: ‘Children are to be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.’, Hence, the Government Order cannot be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution. The Government Order only ensures that the prescribed uniform is adhered to by the students and it cannot be said that the State is restricting access to education for girl students through such an Order. Question (xi) – Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act?, The argument is that the State is under a positive obligation to create an environment conducive for the exercise of fundamental rights. Conversely, it means that the subjects have no responsibility to create a conducive environment in a nondiscriminatory manner. If the students of one faith insist on a particular dress, there is no stopping the others from carrying their faiths and beliefs to the schools. Uniform fosters a sense of equality amongst students, diminishes individual differences, helps focus on learning, improves discipline, reduces conflicts, promotes school spirit, generates a sense of belonging, pride and loyalty towards the school, relieves economic pressure on parents, ensures equality before the educational institution, serves the needs of a diverse community and promotes a positive sense of communal identity without leading to disparities of wealth and style., In Indibly Creative Private Ltd. & Ors. v. Government of West Bengal & Ors., the release of a movie in the State of West Bengal was not permitted on account of a threatened breach of peace. In those circumstances, the Supreme Court of India held that the State is duty‑bound to ensure the prevalence of conditions in which constitutional freedoms can be exercised. The Court observed: ‘The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the State by carving out an area in which the State shall not interfere… The State must ensure that conditions in which these freedoms flourish are maintained… The State is duty‑bound to ensure the prevalence of conditions in which those freedoms can be exercised.’, As discussed above, secularism is applicable to all citizens; therefore, permitting one religious community to wear its religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act., In view of the discussions above, I dismiss all appeals and the writ petitions, though on different grounds than what prevailed before the Karnataka High Court. No costs., The long hearing of this case, which went on for several days, allowed me to listen to the erudite submissions of learned counsel from both sides. On behalf of the petitioners we heard Mr. Kapil Sibal, Mr. Rajeev Dhawan, Mr. Dushyant Dave, Mr. Salman Khurshid, Mr. Colin Gonsalves, Mr. Yusuf Hatim Muchhala, Mr. Huzefa Ahmadi, Ms. Meenakshi Arora, Mr. Aditya Sondhi, Mr. Sanjay R. Hegde, Mr. Devadatt Kamat, Ms. Jayna Kothari, Mr. A.M. Dar, and Mr. Prashant Bhushan, Mr. Shoeb Alam, Mr. Nizam Pasha, Ms. Kirti Singh and Mr. Thulasi K. Raj. The arguments on behalf of the State were made by Mr. Tushar Mehta, Solicitor General of India, Mr. K.M. Nataraj, Additional Solicitor General of India and Mr. Prabhuling Navadgi, Advocate General for Karnataka, together with Mr. R. Venkatramani, Ms. V. Mohana and Mr. Dama Seshadri Naidu, who appeared on behalf of the teachers., I had the advantage of going through the judgment of Justice Hemant Gupta. Justice Gupta recorded each argument raised at the Bar before us in the long hearing and gave his findings on each issue. It is a very well‑composed judgment, but I am unable to agree with the decision of Justice Gupta and therefore give a separate opinion on this important matter., While doing so, I am conscious that, as far as possible, a constitutional court must speak in one voice. Split verdicts and discordant notes do not resolve a dispute; finality is not reached. To borrow the words of Lord Atkin, ‘finality is a good thing, but justice is better.’, The judgment impugned before the Supreme Court of India was pronounced by the Karnataka High Court on 15 March 2022. This was challenged before the Supreme Court of India in several Special Leave Petitions. Apart from the Special Leave Petitions we also had before us two writ petitions filed under Article 32 of the Constitution of India. The Karnataka High Court was dealing with seven petitions where the lead matter was Writ Petition (Civil) No. 2347 of 2022. We will refer to Aishat Shifa, who was a petitioner in Special Leave Petition (Civil) No. 5236 of 2022 and in Writ Petition (Civil) No. 2880 of 2022, as the lead matter., In the district of Udupi in Karnataka there is a small town called Kundapura. Aishat Shifa and Tahrina Begum were two second‑year students of Government Pre‑University College in Kundapura. They both follow the Islamic religion and wear hijab. According to them they have been wearing hijab inside their classrooms ever since they joined the college, more than a year ago, and had never faced any objection from anyone, including the college administration., On 3 February 2022 these two girl students were stopped at the gate of their college and were told that they would have to take off their hijab before entering. Since they refused to remove their hijab, they were denied entry by the college administration., The next day, 4 February 2022, both made a representation before the Deputy Commissioner, Udupi, praying that a direction be given to the college authorities to let them enter and complete their studies. No effective order was passed by the Deputy Commissioner; instead the Government issued a Government Order on 5 February 2022. The preamble of the Government Order refers to the Karnataka Education Act, 1983 and the rules framed thereunder, and cites three judgments of different High Courts to conclude that prohibiting hijab does not amount to a violation of Article 25 of the Constitution. It then mandates that government schools must have a school uniform and that colleges under the jurisdiction of the Pre‑University Education Department must follow the uniform prescribed by the College Development Committees (in government colleges) or the Board of Management (in private schools). A caveat stated that if the Board of Management did not mandate any uniform, students should wear clothes that are in the interest of unity, equality and public order., The relevant portion of the Government Order reads: ‘In the backdrop of the issues highlighted in the proposal, using the powers granted by the Karnataka Education Act Section 133(2), all government schools in the State are mandated to abide by the official uniform. Private schools should mandate a uniform decided upon by their board of management. In colleges that come under the Pre‑University Education Department’s jurisdiction, the uniforms mandated by the College Development Committee or the Board of Management should be worn. In the event that the management does not mandate a uniform, students should wear clothes that are in the interests of unity, equality and public order.’, Since hijab was not made a part of the uniform and wearing it was not considered to be in the interest of unity, equality and public order as mandated by the Government Order, the petitioners were denied entry to their college. This Court has been informed that similar restrictions were imposed on other school‑going girls in different parts of Karnataka., The two girls then filed writ petitions before the Karnataka High Court. Initially the case went before a learned single judge, who, considering the importance of the matter, referred it to the Chief Justice for constituting a larger bench. A three‑judge bench was constituted, heard the matter at length and on 15 March 2022 dismissed the writ petitions, an order presently impugned before the Supreme Court of India., Before the Karnataka High Court as well as before the Supreme Court of India the main argument of the petitioners was that the Government Order dated 5 February 2022 and the restrictions imposed by the school authorities in not permitting the petitioners to wear hijab inside their classrooms amounted to a violation of their fundamental rights under Article 19(1)(a), Article 25(1), Article 14 and Article 21 of the Constitution of India. Some petitioners also claimed that wearing hijab is a part of their essential religious practice. The State argued that the Government Order merely directs school authorities to prescribe a school uniform, is religion‑neutral, and that fundamental rights are not absolute and are always subject to reasonable restrictions. Prohibiting hijab inside a classroom was presented as a reasonable restriction and the State contended that wearing hijab was not an essential religious practice., The Karnataka High Court formulated four questions for its consideration: (a) Whether wearing hijab/headscarf is a part of essential religious practice in the Islamic faith protected under Article 25 of the Constitution; (b) Whether prescription of school uniform is not legally permissible as it violates petitioners’ fundamental rights inter‑alia guaranteed under Article 19(1)(a) (freedom of expression) and Article 21 (privacy); (c) Whether the Government Order dated 5 February 2022 is incompetent, issued without application of mind and manifestly arbitrary, thereby violating Article 14 and Article 15; and (d) Whether any case is made out in Writ Petition No. 2146 of 2022 for issuance of a direction for initiating disciplinary enquiry against Respondents No. 6 to 14 and for issuance of a writ of quo warranto against Respondents No. 15 and 13., The High Court held that wearing hijab by Muslim women does not form part of an essential religious practice in the Islamic faith. It further held that prescription of a school uniform places only a reasonable restriction which is constitutionally permissible and cannot be objected to by the students. Regarding the Government Order of 5 February 2022, the Court held that the Government has the power to issue such an order and no case is made out for its invalidation. The fourth question was also answered in the negative., One of the grounds raised by the petitioners in their challenge to the validity of the Government Order dated 5 February 2022 is that it is merely an executive order and therefore cannot curtail fundamental rights under Article 19(1)(a) and Article 25(1). The petitioners submitted that restrictions on fundamental rights can only be imposed by a statutory law, relying on the decision in Kharak Singh v. State of Uttar Pradesh. This submission is declined. Under Section 133 of the Karnataka Education Act, 1983 the Government has powers to give directions. Section 145 of the 1983 Act empowers the State Government to make rules, which have been made as the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula Etc.) Rules, 1995. Rule 11(1) and (4) of those rules state that recognized educational institutions may prescribe a uniform. Therefore, the State Government has the power to prescribe a uniform or dress code, and the Government Order draws its source from the statute and the statutory rules, giving it the force of law., Provision of uniform, clothing, textbooks etc.: Every recognised educational institution may specify its own set of uniform. Such uniform, once specified, shall not be changed within the period of the next five years. This provision must be read in harmony with the provisions of Articles 19 and 25 of the Constitution., Out of the four questions formulated by the Karnataka High Court, the first question is crucial. The petitioners had to prove that wearing hijab forms a core belief in Islam, that it is an essential religious practice, that it has been followed since the beginning of the religion, and that it does not militate against any constitutional values. The Court found that there was absolutely no material placed on record to prima facie show that wearing hijab is an essential religious practice in Islam, and that hijab, being a matter of attire, cannot be justifiably treated as fundamental to the Islamic faith., The judgment upholds the validity of the Government Order dated 5 February 2022 and holds that the authorities have the power to prescribe uniform in schools., In my opinion, the question of essential religious practices was not at all relevant in the determination of the dispute. When protection is sought under Article 25(1) of the Constitution of India, it is not required for an individual to establish that the practice is an essential religious practice; it may simply be any religious practice, a matter of faith or conscience, subject to public order, morality, health and other provisions of Part III of the Constitution., The petitioners partly bear responsibility for the course taken by the Karnataka High Court, as they claimed that wearing hijab is an essential practice in Islam. Some counsel admitted at the Bar that ERP was not the core issue, but the petitioners had to attack the Government Order dated 5 February 2022, which clearly stated that prohibiting hijab in schools would not be violative of Article 25 of the Constitution of India. The point was raised, made the core issue by the Karnataka High Court, and it went against the petitioners., The approach of the Karnataka High Court could have been different. Instead of straightaway taking the ERP route as a threshold requirement, the Karnataka High Court could have first examined whether the restriction imposed by the school or the Government Order on wearing a hijab was a valid restriction or whether it was hit by the doctrine of proportionality. In Bijoe Emmanuel and Ors. v. State of Kerala and Ors., the Court held that whenever the fundamental right to freedom of conscience and to profess, practice and propagate religion is invoked, the act complained of must be examined to discover whether it is to protect public order, morality and health, to give effect to other provisions of Part III, or is authorized by a law made to regulate any activity associated with religious practice or to provide for social welfare and reform., The test of essential religious practice has been laid down by the Supreme Court of India in past cases to resolve disputes where a challenge was made to State interference on what was claimed to be an essential religious practice. These cases involved protection of Article 25 and Article 26 of the Constitution of India. The expression ‘essential religious practice’ was taken from the Constituent Assembly Debates, where Dr. B.R. Ambedkar explained that only practices essentially religious are protected under Article 25., The first major case on this issue was Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, popularly known as the Shirur Mutt case. The Supreme Court examined whether the provisions of the Madras Hindu Religious Endowments Act, 1927 invaded the fundamental rights of the Mathadhipati and the temple management under Articles 25 and 26. Justice B.K. Mukherjea, speaking for the seven‑judge constitutional bench, held that religion is a matter of faith with individuals or communities and is not necessarily theistic; religions such as Buddhism and Jainism do not believe in God.
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A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well‑being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and models of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress., The Supreme Court of India held that the guarantee under the Constitution not only protects the freedom of religious opinion but also protects acts done in pursuance of a religion, as expressed by the phrase ‘practice of religion’ in Article 25. The Supreme Court rejected the submissions of the learned Attorney General of India that the State must be allowed to regulate secular activities associated with a religion which do not constitute the essential part of it., The observations falling from the Shirur Mutt case were as follows: The learned Attorney‑General laid stress upon clause 2(a) of Article 25 and contended that all secular activities which may be associated with religion but do not really constitute an essential part of it are amenable to State regulation. The Court held that such a contention cannot be supported. What constitutes the essential part of a religion is to be ascertained with reference to the doctrines of that religion itself. If the tenets of any Hindu sect prescribe offerings of food to an idol at particular hours, periodical ceremonies performed in a certain way at certain periods of the year, daily recital of sacred texts or oblations to the sacred fire, all these are parts of religion and the fact that they involve expenditure of money or employment of priests does not make them secular activities of a commercial or economic character; they are religious practices and fall within the meaning of Article 26(b)., The next case considered by the Supreme Court of India was Ratilal Panachand Gandhi v. State of Bombay, wherein the petitioners challenged the constitutional validity of the Bombay Public Trusts Act, 1950 on the ground that its provisions invaded their fundamental rights under Article 25 and Article 26. The Court observed that the free exercise of religion, meaning the performance of outward acts in pursuance of religious belief, is subject to State regulation imposed to secure order, public health and morals. Sub‑clause (a) of clause 2 of Article 25 contemplates regulation of activities that are really of an economic, commercial or political character, though they are associated with religious practices., The Supreme Court of India then decided Durgah Committee, Ajmer, and Another v. Syed Hussain Ali and Others. The khadims of the Dargah of Hazrat Haji Moinuddin Chishti challenged the constitutional validity of the Dargah Hazrat Khwaja Saheb Act, 1955 before the Rajasthan High Court, claiming that interference by the Dargah Committee violated their fundamental rights under Article 25(1). The Rajasthan High Court allowed their claim, but the Supreme Court set aside that order, holding that the khadims could not claim a right under Article 25(1). The Court also examined what would constitute an Essential Religious Practice and how the Court would determine the same, noting the interplay of Article 25 and Article 26., The judgments of the Supreme Court of India in Acharya J. Avadhuta & Others v. Commissioner of Police, Calcutta & Another and Commissioner of Police & Others v. Acharya J. Avadhuta both relate to the performance of the tandav dance in public places by followers of the Anand Marg faith. The Kolkata Police had banned such performances under Section 144 of the Code of Criminal Procedure, 1973. The Supreme Court held in 1983 that performing the tandav dance in public places is not an essential part of the Anand Marg faith, and a three‑judge bench reaffirmed the same conclusion in 2004., Thus, while dealing with the concept of Essential Religious Practice or whether a particular practice can be termed an Essential Religious Practice, the Supreme Court of India was dealing with questions related to both Article 25 and Article 26 of the Constitution. These cases involved management of activities related to a religious shrine or institution, or State resistance to claims of rights under Articles 25 and 26. In the present matter, however, the Court is concerned only with individual rights under Article 25(1) and not with Article 25(2) or Article 26, which primarily protect community‑based rights. Consequently, the exercise undertaken by the Karnataka High Court in evaluating the petitioners’ rights solely on the touchstone of Essential Religious Practice was incorrect., In the more recent case of Shayara Bano, the majority opinion held that Triple Talaq constitutes an irregular and not an essential practice amongst Sunni Muslims. Applying the tests laid down in earlier judgments, the Court observed that Triple Talaq is a form of divorce permissible in law but considered sinful by the Hanafi school, and therefore does not form part of any essential religious practice., In the Sabarimala Temple case, the constitutional bench considered whether women devotees aged ten to fifty years had the right to enter the temple of Lord Ayyappa in Kerala. The temple authorities denied entry on the basis of customary practice and tradition. By a 4:1 majority, the Supreme Court of India allowed the writ petition, holding that the restriction violated the fundamental rights of the women under the Constitution of India., We are presently concerned with an entirely different set of facts. Article 25(1) deals with the rights of an individual, whereas Article 25(2) and Article 26 deal with the rights of communities or religious denominations. Freedom of expression under Article 19(1)(a) is not the central issue here; the focus is on the interplay between Article 19(1)(a) and Article 25(1)., The Karnataka High Court conducted a detailed study of what constitutes an Essential Religious Practice and concluded that wearing the hijab is not an essential religious practice in Islam, describing it as discretionary rather than mandatory. The Court referred to verses from the Holy Quran and commentaries, and after considering various Supreme Court decisions, held that the claim to wear the hijab does not fall within the scope of an Essential Religious Practice., In my humble opinion, courts are not the forums to solve theological questions. They are not well equipped for that purpose because multiple viewpoints exist on any religious matter, and no authority exists for the Court to pick one over another. Courts must intervene only when constitutional boundaries are breached or unjustified restrictions are imposed., In the case of M. Siddiq (Dead) Through LRs v. Mahant Suresh Das and Others, popularly known as the Ram Janmabhoomi case, the Supreme Court cautioned against venturing into areas of theology with which the courts are not well equipped. The Court observed that the extreme view of Islam presented by an advocate does not represent the only interpretation of Islamic law, and it would be inappropriate for the Court to assume the role of interpreter of the Hadith. The true test is whether believers have faith in the efficacy of the place where they pray, and that faith cannot be challenged by the Court., The question of what constitutes an Essential Religious Practice, in all its complexities, is pending consideration before a nine‑judge constitutional bench of the Supreme Court of India, and therefore it would not be proper to go further into that aspect at this stage., The Supreme Court of India’s decision in Bijoe Emmanuel is of essential importance. In that case, three girl children in Kerala who were Jehovah’s Witnesses attended a government school. When the National Anthem was sung, they stood respectfully but did not sing, because their faith forbids them to sing for anyone other than Jehovah. Their expulsion from school was challenged before the Kerala High Court, which dismissed the petition, and subsequently before the Supreme Court of India., The Supreme Court, citing United States cases Minersville School District v. Gobitis and West Virginia State Board of Education v. Barnette, held that the girls’ refusal to sing the National Anthem did not constitute disrespect. The Court affirmed that Article 19(1)(a) guarantees freedom of speech and expression, subject to reasonable restrictions, and that Article 25(1) guarantees freedom of conscience and the right to profess, practise and propagate religion. The Court concluded that expelling the girls violated their fundamental right to freedom of speech and expression, and that a government circular directing the entire school to sing the anthem was not a law under Article 19(2)., In Minersville the majority upheld compulsory saluting of the National Flag, while Justice Stone dissented, noting the rarity of state infringement of personal liberty. The decision was later overruled by the Supreme Court in Barnette, where Justice Jackson emphasized that the government cannot compel individuals to profess beliefs or engage in acts that violate their conscience., Justice Jackson stated that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith. Any circumstance permitting an exception does not arise, and compelling flag salute and pledge transgresses constitutional limits and invades the sphere reserved for the First Amendment., Justice O. Chinnappa Reddy, in his judgment, invoked Article 19(1)(a) and Article 25(1) in favour of the petitioners, noting that Article 19(2) allows reasonable restrictions in the interests of sovereignty, security, public order, decency, morality, etc., while Article 25(1) guarantees freedom of conscience subject to order, morality and health., The Court held that it is not disrespectful to the National Anthem if the girls stand respectfully while it is sung, even if they do not join in singing. Their expulsion was therefore a violation of their fundamental right to freedom of speech and expression. The Prevention of Insults to National Honour Act, 1971 does not make it an offence to stand respectfully without singing., The Court described Article 25 as an article of faith in the Constitution, incorporated in recognition of the principle that the true test of a democracy is the ability of even an insignificant minority to find its identity under the Constitution., The present petitioners, who wear the hijab as an article of their faith, face the same predicament as the Jehovah’s Witnesses in Bijoe Emmanuel, and the ratio laid down in that case is squarely applicable., The Karnataka High Court held that schools are qualified public places structured predominantly for imparting education, and that in such places the assertion of individual rights is curtailed in favour of discipline and decorum, rendering substantive rights derivative., Comparing a school with a war room or defence camp is odd; schools are not required to have the discipline and regimentation of a military camp. Nevertheless, the High Court’s point that all public places have a certain degree of discipline is accepted, though the justification for restrictions inside a classroom must be examined., In the Puttaswamy judgment, Justice D.Y. Chandrachud observed that privacy of the individual is an essential aspect of dignity, which has both intrinsic and instrumental value. Dignity and freedom are inseparably intertwined, and privacy enables the individual to protect a zone of autonomy. The right to privacy is not a separate fundamental right but is protected through its relationship with other fundamental rights, and the guarantee of equality prevents arbitrary State action.
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The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self‑determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self‑determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha‑suffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self‑determination., The counsels representing the State before the Supreme Court of India had underlined the importance of the Government Order dated 05 February 2022 which was to enforce discipline in schools, including in Pre‑University classes, and apply a dress code. The object of the act therefore was the betterment of education and to inculcate a sense of discipline among school‑going children. The learned Advocate General of Karnataka submitted that the law in the present case, which is the Government Order dated 5 February 2022, is primarily for the enforcement of dress code in schools including Pre‑University classes. It may only incidentally impact the rights which the petitioners claim under Article 19 and Article 25 of the Constitution of India. What has to be seen is the pith and substance of the law which is the enforcement of uniforms in schools, which in turn is to maintain discipline in schools. For this submission the learned Advocate General relied upon Bachan Singh v. State of Punjab, which says:, From a survey of the cases noticed above, a comprehensive test which can be formulated may be restated as follows: Does the impugned law, in its pith and substance, whatever may be its form and object, deal with any of the fundamental rights conferred by Article 19(1)? If it does, does it abridge or abrogate any of those rights? And even if it does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), is the direct and inevitable effect of the impugned law such as to abridge or abrogate any of those rights? The mere fact that the impugned law incidentally, remotely or collaterally has the effect of abridge or abrogate those rights will not satisfy the test. If the answer to the above queries is affirmative, the impugned law in order to be valid must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under clause (1) of Article 19 is merely incidental, indirect, remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be available for judging its validity., The Supreme Court of India does not find the above submission applicable to the facts of the controversy before it. The Government Order specifically seeks to address the question of hijab, which is evident from the preamble of the Order. Moreover, the submission of the learned Advocate General is not correct in view of the Puttaswamy judgement, which states: The decisions in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P. adopted a doctrinal position on the relationship between Articles 19 and 21 based on the view of the majority in A.K. Gopalan v. State of Madras. This view stands abrogated particularly by the judgment in R. C. Cooper v. Union of India and the subsequent statement of doctrine in Maneka Gandhi v. Union of India. The decision in Maneka Gandhi v. Union of India expressly recognised that the dissenting judgment of Subba Rao, J. in Kharak Singh represents the exposition of the correct constitutional principle. The jurisprudential foundation which held the field sixty‑three years ago in M.P. Sharma and fifty‑five years ago in Kharak Singh has given way to what is now a settled position in constitutional law. Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of State action but on the basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that State action must not be arbitrary and must fulfil the requirement of reasonableness imparts meaning to the constitutional guarantees in Part III., We would now examine some decisions of foreign courts to appreciate the assertion of religious and cultural rights in our school premises. There are two cases to refer to. The first is the nose‑stud case of the Constitutional Court of South Africa and the second is a decision of the House of Lords in England., In South Africa, dignity is a right given to citizens under its Constitution and Equality Courts have been established to hear disputes relating to discrimination. Sunali, a Class 10 student at Durban Girls High School, was given a nose stud by her mother as part of her Hindu‑Tamil culture. The school’s code of conduct prohibited wearing jewellery and asked Sunali to remove the stud. When she refused, the matter was taken to the Equality Court, which held that although a prima facie case of discrimination was made out, it could not be termed unfair and dismissed the case. On appeal, the High Court allowed the appeal, holding that asking Sunali to remove her nose stud amounted to discrimination. The Constitutional Court of South Africa, the highest court, again decided in favour of Sunali., The school argued that the nose stud was not central to Sunali’s religion or culture and was only an optional practice. The Constitutional Court observed that the centrality of a practice or belief must play a role in determining how far another party must go to accommodate that belief. Reasonable accommodation is an exercise of proportionality. Persons who merely appear to adhere to a religious or cultural practice but are willing to forego it if necessary can hardly demand the same adjustment as those whose identity would be seriously undermined if they do not follow their belief. The difficult question is how to determine centrality – whether to enquire into centrality to the community or to the individual. Courts should not substitute their judgement of the meaning of a practice for that of the person before them., The school also pleaded that the nose stud was a cultural rather than a religious issue and therefore the infringement of any right, if at all, was much less. The Court found this argument flawed, stating that religious and cultural practices can be equally important to a person’s identity. What is relevant is the meaning of the practice to the individual, not whether it is characterised as religious or cultural. The school further argued that Sunali could simply attend another school that would allow the stud. The Court disagreed, noting that such a suggestion would marginalise religions and cultures and is inconsistent with constitutional values. While there may be occasions where the availability of another school is a relevant consideration, there were no such circumstances here., The Court held that the discrimination had a serious impact on Sunali. Although uniforms serve an important purpose, the purpose was not significantly furthered by refusing Sunali her exemption. Allowing the stud would not have imposed an undue burden on the school. A reasonable accommodation would have been achieved by allowing Sunali to wear the nose stud, and the High Court’s finding of unfair discrimination was confirmed., The other case relied upon by the Karnataka High Court is Regina (SB) v. Governors of Denbigh High School. The controversy concerned the school’s allowance of hijab but refusal of jilbab, which is more akin to a burqa. The Court observed that schools have the task of educating young people from diverse families and communities in accordance with the national curriculum, helping pupils achieve their full potential and promoting harmony among people of different races, religions and cultures. A uniform dress code can smooth over ethnic, religious and social divisions, but it also must respect the equal freedom of men and women to choose how they will lead their lives within the law. The Court noted that girls from ethnic, cultural or religious minorities face difficult choices about how far to adopt or distance themselves from the dominant culture, and a good school should enable and support them., When a decision has to be made between school discipline and the cultural and religious rights of minorities, a balance must be maintained. Baroness Hale of Richmond, referring to Professor Frances Raday’s work, noted that genuine individual consent to a discriminatory practice may not be feasible where girls are not yet adults. A mandatory policy that rejects veiling in state educational institutions may provide an opportunity for girls to choose the feminist freedom of state education over patriarchal family control, while a prohibition of veiling risks violating the liberal principle of respect for individual autonomy and cultural diversity., The Karnataka High Court placed reliance upon two United States District Court judgments, Miller v. Gills and Christmas v. El Reno Board of Education. The facts of those cases differ, and in neither case did school authorities debar students from attending classes., The Court also relied upon Employment Division v. Smith, a United States Supreme Court judgment. The case examined whether the State of Oregon was justified in denying unemployment benefits to persons dismissed for consuming peyote as part of their religious beliefs. The Court held that conduct prohibited by law, even if motivated by religious belief, does not excuse non‑compliance with a generally applicable, facially neutral law. The Court stated that an individual’s religious beliefs do not excuse him from obedience to a valid law that is not aimed at the promotion or restriction of religious beliefs., The School Administration and the State must answer whether education of a girl child or enforcement of a dress code is more important. Senior counsel for the petitioners informed the Bar that the enforcement of the hijab ban in Karnataka has resulted in some girl students being unable to appear for board examinations and others seeking transfer to other schools, often madrasas, where the standard of education may be lower. For many girl children, reaching the school gate is already a challenge., One of the best sights in India today is a girl child leaving for school in the morning with her school bag on her back. She is our hope and future. However, it is much more difficult for a girl child to obtain education compared to her brother. In villages and semi‑urban areas, a girl often helps her mother with daily chores before she can grab her school bag. The hurdles and hardships a girl child faces in gaining education are many times greater than those of a male child. This case must be viewed in the perspective of those challenges., The petitioners simply want to wear a hijab. Is it too much to ask in a democracy? How is it against public order, morality, health, decency or any other provision of Part III of the Constitution? These questions have not been sufficiently answered in the Karnataka High Court judgment. The State has not provided any plausible reasons in the Government Order dated 5 February 2022 or in the counter‑affidavit before the High Court. It does not appeal to logic or reason that a girl child wearing a hijab in a classroom is a public order or law‑and‑order problem. On the contrary, reasonable accommodation would be a sign of a mature society that has learned to live with its differences., In his famous dissent in United States v. Schwimmer, Justice Oliver Wendell Holmes Jr. said: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”, A girl child has the right to wear a hijab in her house or outside her house, and that right does not stop at the school gate. The child carries her dignity and privacy even when she is inside the school premises, in her classroom. She retains her fundamental rights. To say that these rights become derivative inside a classroom is wholly incorrect., We live in a democracy and under the rule of law, and the laws that govern us must pass muster. Among many facets of our Constitution is trust. Our Constitution is also a document of trust. It is the trust minorities have reposed upon the majority. Commenting on the report of the Advisory Committee on Minorities, Sardar Vallabhbhai Patel said before the Constituent Assembly on 24 May 1949: “It is not our intention to commit the minorities to a particular position in a hurry. If they really have to come honestly to the conclusion that in the changed conditions of this country, it is in the interest of all to lay down real and genuine foundations of a secular State, then nothing is better for the minorities than to trust the good sense and sense of fairness of the majority, and to place confidence in them. So also, it is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we were treated in the manner in which they are treated.”, The question of diversity raised by the petitioners before the Karnataka High Court was not considered by the Court, which thought it to be hollow rhetoric, and the submissions on unity and diversity were dismissed as an oft‑quoted platitude. The contention that a classroom should be a place for recognition and reflection of societal diversity, a mirror image of society, was labelled hollow rhetoric, with unity in diversity called an oft‑quoted platitude., The question of diversity and our rich plural culture is important in the present case. Our schools, particularly our Pre‑University colleges, are perfect institutions where children, at an impressionable age, can be counselled and guided to imbibe constitutional values of tolerance and accommodation towards those who may speak a different language, eat different food, or wear different clothes or apparels. This is the time to foster sensitivity, empathy and understanding towards different religions, languages and cultures, and to rejoice in our diversity, which is our strength., The National Education Policy 2020, of the Government of India, underlines the need for inculcating the values of tolerance and understanding in education and making children aware of the rich diversity of the country. The principles of the policy state that it aims at producing engaged, productive and contributing citizens for building an equitable, inclusive and plural society as envisaged by our Constitution., In the case of Aruna Roy v. Union of India, this Court elaborated on the constitutional values of religious tolerance and cultural diversity and their need in the education system. Justice Dharmadhikari, in a concurring opinion, observed that these values need to be inculcated at appropriate stages in education right from the primary years, and that the essence of every religion is common, only the practices differ. The Court also noted that complete neutrality towards religion and apathy for religious teachings in state institutions have not helped remove mutual misunderstandings and intolerance, and that secularism requires a positive meaning of developing understanding and respect towards different religions., A constitutional bench of this Court in Navtej Singh Johar and Others v. Union of India, Ministry of Law and Justice, while speaking on diversity, dissent, liberty and accommodation, held that the Constitution reflects a vision of a society governed by justice. Individual liberty is its soul. The constitutional vision of justice accommodates differences of culture, ideology and orientation. The stability of its foundation lies in its effort to protect diversity in all its facets, in the beliefs, ideas and ways of living of its citizens. Democratic as it is, the Constitution does not demand conformity nor does it contemplate the mainstreaming of culture. It nurtures dissent as a safety valve for societal conflict., In St. Stephen’s College v. University of Delhi, Justice K. Jagannatha Shetty held that claims of religious bigotry may meet considerable hostility, and that a relatively homogeneous society is not conducive. Sectarian schools or colleges segregated on the basis of community are undesirable and may undermine secular democracy. Every educational institution, irrespective of the community to which it belongs, is a melting pot in national life, and students and teachers are critical ingredients for developing respect and tolerance of other cultures and beliefs. Therefore, there should be a proper mix of students of different communities in all educational institutions., It is a Fundamental Duty of every citizen, under Part IVA of the Constitution of India, to value and preserve the rich heritage of our composite culture., The Karnataka Education Act, 1983, which is the source of the Government Order dated 05 February 2022, provides that the curriculum in schools and colleges must promote the rich and composite culture of the country. Section 7 of the Act prescribes that moral and ethical education may be part of the curriculum, and further states that schools should promote harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic, regional or sectional diversities, and should renounce practices derogatory to the dignity of women.
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The preamble to the Constitution secures to all its citizens liberty of thought, expression, belief, faith and worship. It is the Preamble again which seeks to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The Government Order dated 5 February 2022, and the restrictions on the wearing of hijab, also goes against our constitutional value of fraternity and human dignity. Liberty, equality, fraternity, the triptych of the French Revolution is also a part of our Preamble. It is true that whereas liberty and equality are well established, properly understood, and recognized concepts in politics and law, fraternity for some reasons has largely remained incognito. The framers of our Constitution though had a different vision. Fraternity had a different, and in many ways a much larger meaning with the main architect of our Constitution, Dr. Ambedkar., In his own words: my social philosophy may be said to be enshrined in these words: liberty, equality and fraternity. Let no one, however, say that I have borrowed my philosophy from the French Revolution. I have not. My philosophy has roots in religion and not in political science. I have derived them from my Master, the Buddha. Dr. Ambedkar gave the highest place to fraternity as it was the only real safeguard against the denial of liberty or equality. These principles of liberty, equality and fraternity are not to be treated as separate items in trinity. They form a union of trinity in the sense that to separate one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce a supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity liberty and equality could not become a natural course of things., Fraternity, which is our constitutional value, would therefore require us to be tolerant, and as some of the learned counsels would argue to be reasonably accommodating, towards the belief and religious practices of others. We should remember the appeal made by Justice O. Chinnappa Reddy in Bijoe Emmanuel. Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it., Under our constitutional scheme, wearing a hijab should be simply a matter of choice. It may or may not be a matter of essential religious practice, but it still is a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her classroom, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education., The unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. This case therefore has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question the Supreme Court of India would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!, Our Constitution has visualised a just society and it is for this reason that the first virtue that is secured for the citizens is justice which is the first of our preambular promises. Rawls in his A Theory of Justice writes: Justice is the first virtue of social institutions, as truth is of system of thoughts. Therefore in a just society the liberties of equal citizenship are taken as settled, the rights secured by justice are not subject to political bargaining or to the calculus of social interest., By asking the girls to take off their hijab before they enter the school gates, it is first an invasion of their privacy, then an attack on their dignity, and ultimately a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India., Consequently, I allow all the appeals as well as the writ petitions, but only to the extent as ordered below: The order of the Karnataka High Court dated March 15 2022 is hereby set aside; The Government Order dated 5 February 2022 is hereby quashed; There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka. New Delhi, 13 October 2022. In view of the divergent views expressed by the bench, the matter be placed before the Honourable Chief Justice of India for constitution of an appropriate bench.
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Reserved on: 16.08.2021 Delivered on: 08.09.2021 Applicant: Kamlesh Yadav and another Opposite Party: State of Uttar Pradesh Counsel for Applicant: Aditya Narayan Singh Counsel for Opposite Party: G. A. Honourable Samit Gopal, J., The present bail application under Section 439 of the Criminal Procedure Code purports to have been filed on behalf of the applicants Kamlesh Yadav and Rajesh Chauhan in Criminal Case No. 104 of 2020, under Sections 328 and 302 of the Indian Penal Code, Police Station Bahariyabad, District Ghazipur, who are stated to be in jail since 09.04.2021., Sri Abhishek Kumar, Advocate (Advocate Roll No. A/A-0060/2012) has appeared in the matter. No one appears on behalf of the applicants to press this bail application even when the matter has been taken up in the revised list. Sri B. B. Upadhyay, learned Additional Government Advocate for the State is present. Sri Amit Srivastava, Advocate appears on behalf of Saurabh Singh Chauhan, the purported deponent of the present bail application., The present bail application is an example of a mischievous filing of a case before a Court of law by fictitious persons. This matter was initially taken up on 26.07.2021 and the following order was passed by the Allahabad High Court: Matter taken up in the revised list. No one appears on behalf of the applicants to press this bail application. Sri Sanjay Singh, learned Additional Government Advocate is present for the State. Sri Abhishek Kumar, Advocate informed the court that although he is not a counsel in the present matter, the bail application has been shown to be filed by Sri Aditya Narayan Singh, Advocate having Roll No. A/A-0132/12 and Sri Rajesh Chandra Tiwari, Advocate having Roll No. A/R-1202/12, and states that the same is a mischief because Sri Aditya Narayan Singh died around two years back and the Advocate Roll No. A/R-1202/12 belongs to someone else, not Sri Rajesh Chandra Tiwari. The Stamp Reporter reported that a certified copy of the First Information Report and a free copy of the bail rejection order are required. From perusal of the bail application it is apparent that the mobile number of Sri Aditya Narayan Singh, Advocate as mentioned has eleven digits, which is not possible; even the memo of appearance/parcha filed with the bail application is handwritten and contains the same details. The Registrar General of the Allahabad High Court is directed to give a report regarding the details of both counsels as printed in the bail application within three days from today. Let the matter be listed on 30.07.2021 as fresh., The Registrar General of the Allahabad High Court gave a report dated 29.07.2021 which reads as follows: In compliance with the above directions, the details regarding the above mentioned Advocates on Roll numbers A/A-0132/12 and A/R-1202/12 have been sought from the Advocate on Roll Section and, in response, the Advocate on Roll Section submitted three pages in which the following details are mentioned: (i) Roll No. A/A-0132/2012 (Flag B) is assigned to Aditya Narayan Singh, son of Udai Narayan Singh, Chamber No. 118, Mobile No. 9450611089. The office peon went to Chamber No. 118 where Sri Anil Kumar Aditya (Advocate Roll No. A/A-0745/2012, son of Sri Aditya Narayan Singh) was found. Sri Anil Kumar Aditya informed that his father Sri Aditya Narayan Singh died on 16.05.2014 and submitted his father's death certificate. (ii) Roll No. A/R-1202/2012 (Flag D) is assigned to Ravi Tiwari, son of Madhu Sudan Tiwari, Chamber No. 17, Mobile No. 9335113219. I personally called Mobile No. 9335113219 and asked him about this bail application. Sri Ravi Tiwari came to my chamber and informed that he has not submitted any bail application in this matter. On page No. 75 of the bail application, the name of two advocates is mentioned. The name, Advocate on Roll No., Chamber No. and Mobile No. of one advocate is mentioned as Sri Aditya Narayan Singh, A/A-0132/2012, 111 and 94450611089, respectively, and the name, Advocate on Roll No. and Chamber No. of the other advocate is mentioned as Rajesh Chandra Tiwari, A/R-1202/2012 and 111. Page No. 04 of the bail application has the same name of Sri Rajesh Chandra Tiwari with the same Advocate on Roll but a different Chamber No. mentioned as Chamber No. 127, Old Building, High Court, Allahabad. The office peon went to the above mentioned Chamber Nos. 111 and 127, Old Building, High Court, Allahabad but none of the advocates named Rajesh Chandra Tiwari was found in either chamber. Regarding the purchasing authority of the Welfare Stamp bearing serial number S.R. No. HCBA 0167796 affixed on the back of page No. 75, the Honourable Secretary of the High Court Bar Association, Allahabad submitted that the Welfare Stamp was taken by Sri Aditya Narayan Singh, Advocate having Advocate Roll No. A/A-0132/2012 on 22.06.2021 (Flag E). On perusal of the above facts, it is clear that Advocate Aditya Narayan Singh passed away long ago and Advocate on Roll No. A/R-1202/2012 is assigned to Sri Ravi Tiwari instead of Sri Rajesh Chandra Tiwari. A search on the official website of the Allahabad High Court found no record of the name Rajesh Chandra Tiwari (Flag F)., The matter was then taken up on 30.07.2021 and the following order was passed by the Allahabad High Court: Sri Abhishek Kumar, Advocate appeared in the matter. No one appears on behalf of the applicants to press this bail application even when the matter has been taken up in the revised list. Sri B. B. Upadhyay, learned Additional Government Advocate is present for the State. The Allahabad High Court on 26.07.2021 had passed the order quoted earlier. A report of the Registrar General of the Allahabad High Court has been submitted and is on record. The report shows that Sri Aditya Narayan Singh, Advocate, who is shown as one of the counsels in the bail application, died on 16.05.2014; his death certificate has been provided by his son and is on record. It is further reported that Advocate Roll No. A/R-1202/2012 is assigned to Sri Ravi Tiwari, Advocate, having his chamber in Chamber No. 17 and not to Sri Rajesh Chandra Tiwari, who is also shown as another counsel in the bail application. A report from the Honourable Secretary, High Court Bar Association, Allahabad confirms that the Welfare Stamp bearing Serial No. HCBA 0167796 was taken by Sri Aditya Narayan Singh, Advocate, having Advocate Roll No. A/A-0132/2012, even though he had died on 16.05.2014. The free copy of the bail rejection order has not been filed in this bail application. The deponent in the present bail application is Saurabh Singh Chauhan, whose details are as follows: \Affidavit of Saurabh Singh Chauhan, aged about 22 years, son of Amrendra Singh Chauhan, resident of Semaria, Bhikhaipur, Police Station Bahariyabad, District Ghazipur. Religion: Hindu. Occupation: student. Aadhaar Card No. 7752 5693 3901. Mobile No. 9792990709.\ He, in paragraph No. 1 of the affidavit, claims himself to be the son of the applicant, which is incorrect as he states himself to be the son of Amrendra Singh Chauhan, while the bail application has been filed on behalf of Kamlesh Yadav (applicant No. 1) and Rajesh Chauhan (applicant No. 2). The photocopy of the Aadhaar Card of the deponent is annexed at page 15 of the paper book. Issue notice to Saurabh Singh Chauhan, son of Sri Amrendra Singh Chauhan, for his appearance before the Allahabad High Court at 10.00 A.M. on 10.08.2021 through the Chief Judicial Magistrate, Ghazipur, to be served on him through the concerned police station; the office shall take appropriate steps within four days from today. The action shall be taken by the office through fax. The matter being urgent as the two applicants are in jail, it shall be put up before the Allahabad High Court on 10.08.2021 at 10.00 A.M. as fresh. The Chief Judicial Magistrate, Ghazipur shall send his compliance report by the fastest mode to the Allahabad High Court before the next date fixed., Subsequently, on the matter being taken up on 10.08.2021 the following order was passed by the Allahabad High Court: Sri Abhishek Kumar, Advocate appeared in the matter. No one appears on behalf of the applicant to press this bail application even when the matter is taken in the revised list. Sri B. B. Upadhyay, learned Additional Government Advocate for the State is present. Sri Prabha Shanker Mishra, Honourary Secretary of the High Court Bar Association, Allahabad is present on behalf of the Bar Association. The deponent of the present bail application, Saurabh Singh Chauhan, is present before the Court in compliance with the order dated 30.07.2021. Sri Amit Kumar Srivastava, Advocate appears in the matter and states that the deponent who has been summoned vide order dated 30.07.2021 is present and, as he is the deponent in the bail application of co-accused Amrendra Singh Chauhan, he is appearing on his behalf. Sri Amit Kumar Srivastava is granted four days time to file an affidavit in the matter of the summoned person. Sri Prabha Shanker Mishra, Honourary Secretary of the High Court Bar Association, is granted five days time to ascertain certain facts regarding Sri Rajesh Chandra Tiwari, who is shown as a counsel appearing in the present bail application, and also the other counsel who has been allotted Advocate Roll No. A/R-1202/2012, which is assigned to Sri Ravi Tiwari, Advocate. The time as prayed is allowed to take necessary steps at his end. In the meantime, the Registrar General of the Allahabad High Court is directed to accept the bail application of the applicants, which, as per the statement of Sri Abhishek Kumar, Advocate, has been presented for reporting in the office on behalf of Kamlesh Yadav and Rajesh Chauhan, and to present the same before the Allahabad High Court having roster. List this case on 16.08.2021 as fresh for further arguments. Sri Amit Kumar Srivastava shall file the said affidavit and Sri Prabha Shanker Mishra may produce the relevant report which he proposes to prepare and provide to the Allahabad High Court on the next date. The deponent of the present bail application, Saurabh Singh Chauhan, shall remain present when the matter is listed next., An affidavit dated 13.08.2021 has been filed by Saurabh Singh Chauhan, the so‑called deponent of the present bail application. Paragraphs 2 to 12 of the affidavit are quoted herein: (2) The deponent has been shown to be the deponent of the present Criminal Miscellaneous Bail Application, although he is not the deponent in the said bail application nor has he ever instructed any counsel, including Sri Aditya Narayan Singh and Sri Rajesh Chandra Tiwari, Advocates, to file the present bail application on behalf of Kamlesh Yadav and Rajesh Chauhan. It is also relevant to mention that the deponent has never been authorized by the accused/applicants to file the present bail application before the Honourable Allahabad High Court on their behalf. (3) The deponent does not know Sri Aditya Narayan Singh and Sri Rajesh Chandra Tiwari, Advocates, nor has he ever met them, despite the present bail application mentioning his particulars and annexing his Aadhaar Card as the deponent, although he never instructed them to file the bail application. (4) The deponent came to Allahabad to engage Sri Amit Kumar Srivastava, Advocate for filing the bail application of his father Amrendra Chauhan, which was filed by Sri Amit Kumar Srivastava, Advocate as Criminal Miscellaneous First Bail Application No. 28431 of 2021, allowed by the order dated 12.08.2020 passed by the Honourable Allahabad High Court. (5) It appears that the present bail application has been filed on behalf of Kamlesh Yadav and Rajesh Chauhan mischievously to keep them behind bars indefinitely and that no instruction was given by the accused applicants, as neither a certified copy of the First Information Report nor the free/certified copy of the rejection order passed by the lower court has been annexed along with the present bail application. The copy of Criminal Miscellaneous First Bail Application No. 28431 of 2021 (Amrendra Chauhan Vs. State of Uttar Pradesh) has been obtained by someone and photocopies of the documents/annexures have been annexed in the present bail application, which can be verified by the Honourable Allahabad High Court after perusing the annexures of the present bail application and of Criminal Miscellaneous First Bail Application No. 28431 of 2021. (6) The averments in paragraph numbers 1 to 22 and 24 of the affidavit filed in support of the present bail application are exactly the same as averred in paragraph numbers 1 to 22 and 24 of the affidavit filed in support of Criminal Miscellaneous First Bail Application No. 28431 of 2021. For the Court’s perusal, a photocopy of Criminal Miscellaneous First Bail Application No. 28431 of 2021, Amrendra Chauhan Vs. State of Uttar Pradesh, is filed herewith and marked as Annexure No. 1 to this affidavit. (7) The Aadhaar Card of the deponent has been annexed along with Criminal Miscellaneous First Bail Application No. 28431 of 2021 and therefore was obtained and mischievously used in the present bail application, although the deponent never provided his Aadhaar Card to the counsel or any other persons for filing the present bail application; rather it was misused after obtaining the copy of Criminal Miscellaneous First Bail Application No. 28431 of 2021, Amrendra Chauhan Vs. State of Uttar Pradesh. (8) This mischief is also apparent from the bail application which reveals that an eleven‑digit mobile number of Sri Aditya Narayan Singh, Advocate, who died on 16.05.2014, has been mentioned, while the mobile number of Sri Rajesh Chandra Tiwari, Advocate, who has an incorrect Advocate Roll number, has not been mentioned. In these circumstances, it is apparent that persons inimical to the applicants have filed the present bail application while showing the deponent as the deponent. (9) The deponent has no concern with applicant No. 1 Kamlesh Yadav, yet paragraph 1 of the bail application states that the deponent is the son of the applicant, although the deponent is the son of Amrendra Singh Chauhan. The aforesaid averments also show that the deponent has never instructed any person to file the present bail application on behalf of Kamlesh Yadav and Rajesh Chauhan. (10) The deponent is a young man, aged about 22 years, a B.Sc. student with a clean antecedent, yet he has been falsely and mischievously shown as deponent in the present bail application although he has no concern at all with the applicants. Photocopies of the deponent’s educational certificates are filed herewith and marked as Annexure No. 2 to this affidavit. (11) There was no occasion for the deponent to file the present bail application. He came to Allahabad only for the family of his father. He was never authorized to act on behalf of Kamlesh Yadav and Rajesh Chauhan nor did he ever do so. His Aadhaar Card, which has been annexed along with Criminal Miscellaneous First Bail Application No. 28431 of 2021, was surreptitiously obtained and filed with the present bail application. The deponent has not signed the bail application nor are signatures available in the present bail application. Under these circumstances it is apparent that he has not been involved in filing the present bail application in any manner, despite being harassed unnecessarily. (12) It is most respectfully stated that the deponent has not been involved in filing the present bail application in any manner. The present bail application has been filed by some person mischievously in order to keep the applicants behind bars for an indefinite period as no counsel ever appeared before the Honourable Allahabad High Court whenever the bail application was taken up. The deponent is wholly innocent and was not aware of the present bail application. His Aadhaar Card has been misused for oblique purposes about which he had no knowledge., Sri Abhishek Kumar, Advocate produced before the Court an order dated 23.11.2020 passed in Criminal Miscellaneous Anticipatory Bail Application (under Section 438 of the Criminal Procedure Code) No. 7610 of 2020 (Gram Pradhan Rajesh Chauhan and two others Vs. State of Uttar Pradesh and two others), which shows that the anticipatory bail application was filed on behalf of Rajesh Chauhan, Amrendra Chauhan and Kamlesh Yadav and an order was passed on 23.11.2020 granting them anticipatory bail till submission of a police report, if any, under Section 173(2) of the Criminal Procedure Code before the competent court. The application also purports to have been filed by Sri Aditya Narayan Singh, Advocate. Further, an order dated 19.01.2021 was produced before the Court, passed in Criminal Miscellaneous Application (under Section 482 of the Criminal Procedure Code) No. 135 of 2021 (Gram Pradhanpati Rajesh Chauhan and two others Vs. State of Uttar Pradesh), which shows that no one appeared in the matter when it was taken up and the case was directed to be listed in the ordinary course vide order dated 19.01.2021. The petition also purports to have been filed by Sri Aditya Narayan Singh, Advocate. Another order dated 28.09.2020 was produced before the Court, passed in Criminal Miscellaneous Writ Petition No. 7968 of 2020 (Rajesh Chauhan and two others Vs. State of Uttar Pradesh and three others), which shows that no one appeared on behalf of the petitioners when the matter was called up in the revised list. The writ petition was dismissed for want of prosecution vide order dated 28.09.2020. It was purported to have been filed by Sri Aditya Narayan Singh and Sri Rajesh Shukla, Advocates, with Sri Ram Yash Chauhan, Advocate, appearing on behalf of the private respondent apart from the learned Additional Government Advocate for the State. The three orders have been taken on record., The common feature in all three petitions is that Sri Aditya Narayan Singh, Advocate (who is reported to have died on 16.05.2014), has been the sole counsel in two matters and one of the counsels in the writ petition. From perusal of the entire records, the report of the Registrar General of the Allahabad High Court and the affidavit filed by Saurabh Singh Chauhan, it is apparent that the present bail application has been filed in a clandestine manner for reasons best known to the persons who have played mischief by filing the same and then not appearing before the Court to press it. The present bail application is a bogus bail application and this Court cannot turn a blind eye to the issue. The present case is a sham litigation. This Court is resourceful enough to take appropriate action and therefore deems it appropriate to act in the present matter pertaining to the bogus filing of the bail application, notice of which was given in the office of the learned Government Advocate, High Court, Allahabad on 22.06.2021 (Notice No. 22575 of 2021). The bail application was presented for reporting in the office of the Stamp Reporter (Criminal) of this Court on 28.06.2021 and then placed before the Court on 02.07.2021 and is thus before this Court., The Registrar General of the Allahabad High Court is directed to register a First Information Report in the present matter for which an investigation is needed to be done seriously so as to cull out the truth and appropriate action be taken against persons involved in the bogus and clandestine filing of the bail application before this Court. The necessary action shall be taken within one month from today. The Senior Superintendent of Police, Prayagraj, is directed to ensure that the investigation is carried out by a responsible and competent police officer efficiently. A copy of this order shall be forwarded by the office to the learned Additional Government Advocate for compliance. The matter shall be listed on 25.10.2021 before the Allahabad High Court along with a compliance report of the Registrar General and the learned Additional Government Advocate for further orders.
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Endst. No.HHC/ Admn.6(20)/77-XX-part-2457-BI Copy forwarded for information to: Pursuant to adoption of the Notification No.GAD-A(F)10-9/2022, dated 21 January 2024 of the State Government of Himachal Pradesh, the Honourable High Court of Himachal Pradesh has been pleased to declare 22 January 2024 (Monday) as public holiday for the High Court of Himachal Pradesh as well as the District Judiciary in the State of Himachal Pradesh. No.HHC/ Admn.6(20)/77-XXI-part Dated Shimla the 21st January 2024., The Secretary, Government of India, Ministry of Home Affairs, New Delhi. The Secretary General, Supreme Court of India, Tilak Marg, New Delhi. Shimla. The Principal Private Secretary to the Honourable Chief Justice, High Court of Himachal Pradesh, Shimla. By order Registrar General. The Secretaries to the Honourable Judges, High Court of Himachal Pradesh, the Advocate General, Himachal Pradesh, Shimla. The Secretary, Supreme Court Bar Association, New Delhi. The Principal Secretary (Home) to the Government of Himachal Pradesh. The Registrar Generals, All High Courts in India. The Legal Representative cum Principal Secretary (Law), Special Secretary (Law), Additional Secretary (Law) to the Government of Himachal Pradesh, Shimla. Dated 21 January 2024. The Secretary, Private Secretary, Personal Assistants to Registrar General, Registrar (Vigilance), Registrar (Rules), Registrar (Judicial), Registrar (Administration), Registrar (Accounts), Registrar (Establishment), Central Project Co-ordinator, High Court of Himachal Pradesh. All the District and Additional District and Sessions Judges, Senior Civil Judges, Secretaries, District Legal Service Authorities, Civil Judges, Mobile Traffic Magistrates in the State of Himachal Pradesh. The Registrars, Lokayukta, Himachal Pradesh State Human Rights Commission, Shimla. The Presiding Officers, Labour Court, Industrial Tribunal, Shimla and Dharamshala, Himachal Pradesh. The Member Secretary, Additional Secretary, Himachal Pradesh State Legal Services Authority, Shimla. The Director, Joint Director, Deputy Director, Himachal Pradesh Judicial Academy, Shimla. The Chairman, Himachal Pradesh Waqf Tribunal, Kangra at Dharamshala. The Secretary, Himachal Pradesh High Court Bar Association, Shimla. The Secretary, Bar Council of India, New Delhi. The Secretary, Bar Council of Himachal Pradesh, Shimla. All the Secretaries of Bar Associations of Himachal Pradesh, Shimla. The Accountant General (Audit), Himachal Pradesh, Shimla. The Accountant General (Accounts and Expenditure), Himachal Pradesh, Shimla. All the Additional Registrars, Deputy Registrars, Assistant Registrars, Court Masters, Secretaries, Private Secretaries, Chief Librarian, Section Officers, Public Relations Officer, Estate Officer, High Court of Himachal Pradesh. The NIC Coordinator, High Court for uploading the same on the High Court website. The Section Officer (Computer Branch) of this Registry for conversion of the same into digital form on Gazette website. The President, General Secretary, Himachal Pradesh High Court Non Gazetted Employees Association, Shimla.
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Gulfasha @ Alisha Mehraj Shaikh Applicant versus State of Maharashtra Respondent Mr. Aniket Vagal, Advocate for Applicant. Smt. A. A. Takalkar, appellant for the State/Respondent. (Through video conferencing) This praecipe is moved in disturbing circumstances. It is mentioned in the praecipe thus; the circulation is sought for speaking to the minutes as in the order dated 18 June 2021, inadvertently section 302, under which offence was registered is not mentioned and therefore the Sessions Court is not accepting the said order to deposit the cash. The urgency is that a ten‑month‑old son of the applicant is also inside the jail with the applicant and on that ground the Honorable High Court granted provisional cash bail., The order in question was passed by this High Court on 18 June 2021. In the opening paragraph of the order it was mentioned thus: the applicant is seeking her release on bail in connection with Criminal Revision No. 444 of 2020 registered at Nigadi Police Station, Pune, on 20 November 2020 under sections 307, 306, 494, 498(A), 504, 511 read with Section 34 of the Indian Penal Code. The applicant was arrested on 19 November 2020 and since then she is in custody. The investigation is over and the charge‑sheet is filed., Thereafter the case was discussed and the operative part was passed. In paragraph No.7 it was mentioned that the applicant was in jail along with her ten‑month‑old son. Considering all the factors mentioned in the order, the operative part was passed at paragraph No.8, which reads thus: Hence the following order. In connection with Criminal Revision No. 444 of 2020 registered with Nigadi Police Station, Pune, the applicant is directed to be released on bail on her furnishing a personal recognizance bond in the sum of Rs 30,000 (Rupees Thirty Thousand Only) with one or two sureties in the like amount. Looking at the prevailing circumstances, it may not be possible for the applicant to furnish sureties immediately; therefore, initially the applicant is permitted to furnish cash bail for the same amount. The applicant will have to furnish the sureties, as directed, within three months from today. The application stands disposed of accordingly., Learned counsel for the applicant states that in spite of this order and the urgency mentioned in the order itself, the Sessions Court has not accepted cash bail and has not released the applicant on bail as of today., This is a serious breach of the order passed by the High Court. The Sessions Court was expected to follow the clear directions issued in the operative part of the order mentioned in paragraph No.8. The Sessions Court was not concerned with the other narration as well as the reasoning part in the order. There is absolutely no ambiguity in the operative part of the order and it was the duty of the Sessions Court to follow the order. In spite of that, unnecessary hurdles are created in giving effect to that order. Learned counsel for the applicant states that the specious reason given for not releasing the applicant was that section 302 of the Indian Penal Code was not mentioned in the first paragraph of the order., The High Court does not have to explain the narration mentioned in this order to the Sessions Court. However, to clarify this, it is necessary to mention that initially the offence was registered under section 307 of the Indian Penal Code on the basis of the statement given by the deceased herself. Subsequently, the deceased succumbed to her burns and the informant was described as the deceased in the order. There is also reference to the dying declaration in paragraph No.7. In spite of this, the Sessions Court, exceeding its jurisdiction, has refused to obey the order of this High Court, specifically the operative part mentioned in paragraph No.8. This has seriously affected the applicant’s valuable right of getting released on bail at the earliest. Her liberty is affected in spite of clear directions of this High Court., If there was any ambiguity in the order, it was for the parties and in particular for the learned appellant, who had appeared in the matter, to point it out. The order could have also been corrected by a higher forum. But the Sessions Court had no authority to question that order. In any case, the operative part of the order is very clear and there was absolutely no ambiguity. The Sessions Court was supposed to follow these directions mentioned in the operative part., In spite of this order, the applicant had to suffer in jail custody for a longer period than was necessary, particularly when she had a ten‑month‑old child with her. Considering the repeated concerns expressed by the Honorable Supreme Court of India regarding unnecessary crowding of the jail, the attitude of the Sessions Court is not proper in this case., In these circumstances, to prevent any further hurdles and only for that purpose, I am clarifying and adding section 302 of the Indian Penal Code in the first paragraph of the order. However, the Sessions Court will have to explain its stand and a report will have to be submitted to this High Court., Hence, the following order: The applicant shall be released forthwith pursuant to the directions mentioned in paragraph No.8 of the order dated 18 June 2021 on the conditions mentioned in that part of the order. In the order dated 18 June 2021, in the first paragraph, along with other sections, section 302 of the Indian Penal Code shall be mentioned. The corrected order shall be uploaded. The concerned officer of the Sessions Court, who has not followed the operative part of the order dated 18 June 2021, shall submit his report within ten days before this High Court. The office is directed to send a copy of this order to the concerned Sessions Court at the earliest. Stand over to 14 July 2021 for compliance., Corrected order dated 18 June 2021 reads thus: Gulfasha @ Alisha Mehraj Shaikh Applicant versus the State of Maharashtra Respondent Mr. Aniket Vagal, for the applicant. Ms. Pallavi N. Dabholkar, appellant for the State/Respondent. (Through video conferencing) The applicant is seeking her release on bail in connection with Criminal Revision No. 444 of 2020 registered at Nigadi Police Station, Pune, on 20 November 2020 under sections 302, 307, 306, 494, 498(A), 504, 511 read with Section 34 of the Indian Penal Code. The applicant was arrested on 19 November 2020 and since then she is in custody. The investigation is over and the charge‑sheet is filed., Heard Mr. Aniket Vagal, learned counsel for the applicant and Ms. Pallavi Dabholkar, learned appellant for the State., The FIR was lodged by the deceased Sheetal Banpatte herself. Her statement was recorded as FIR. As she died subsequently, it now becomes a dying declaration. She stated that she married Sachin Banpatte and they had a daughter. They were married in the year 2014. In January 2020, the informant came to know that her husband was having an extramarital affair with the present applicant. For that reason there were quarrels between the informant and her husband., The informant came to know that her husband had married secretly with the present applicant. After coming to know this, she was under mental pressure. On 19 November 2020, the informant carried petrol in a bottle. She went to the house of the present applicant. While going there, she poured kerosene on herself. She had kept a matchbox with her. She stood at the door of the applicant’s house. She picked up a quarrel with the applicant. In the meantime, there was a scuffle between the applicant and her sister on one hand and the informant on the other. During that scuffle, the matchbox fell down. It is further alleged that the applicant lit a match stick causing fire, because of petrol which the informant had already poured on herself. She suffered burn injuries. She started running towards a government hospital which was nearby. She lodged her FIR after she was admitted in the hospital., Learned counsel for the applicant submitted that the FIR itself shows that the informant was holding a serious grudge against the applicant. The informant had herself poured petrol on herself and had carried the matchbox. Therefore her intention to implicate the applicant in a false case is clear. He submitted that the applicant has a son who is ten months old. The child is with the applicant in the jail. There is weak evidence against the present applicant. There are no eye witnesses. In this background, the applicant deserves to be released on bail., Learned appellant left the decision of this application to the discretion of this High Court on humanitarian ground., I have considered these submissions. With the assistance of both learned counsel, I have perused the charge‑sheet. As rightly submitted by learned counsel for the applicant, there are no witnesses who have stated that the applicant used a match stick to set the deceased ablaze. There are statements of witnesses like Chandrabhaga Shinde, Malini Pawar and Anita Kshirsagar who had seen the deceased already having caught fire. She was running towards the hospital., The FIR‑dying declaration of the deceased herself also mentioned that it was the deceased who had poured petrol on herself and had carried a matchbox. Therefore, at this stage sufficient doubt is created against the prosecution case. The applicant is a lady. She is in custody since 19 November 2020. The investigation is over and the charge‑sheet is filed. She is in jail along with her ten‑month‑old son. Considering all these aspects, the applicant deserves to be released on bail., Hence the following order: In connection with Criminal Revision No. 444 of 2020 registered with Nigadi Police Station, Pune, the applicant is directed to be released on bail on her furnishing a personal recognizance bond in the sum of Rs 30,000 (Rupees Thirty Thousand Only) with one or two sureties in the like amount. Looking at the prevailing circumstances, it may not be possible for the applicant to furnish sureties immediately; therefore, initially the applicant is permitted to furnish cash bail for the same amount. The applicant will have to furnish the sureties, as directed, within three months from today. The application stands disposed of accordingly.
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Writ Petition Nos. 29039, 29323, 29076, 29312, 29255, 29464, 29373, 29326, 29771, 29776, 29778, 29762, 29905 and 29906 of 2023 and Writ Miscellaneous Petition Nos. 28957, 28626, 28935, 28865, 29081, 29004, 28961, 29198, 29203, 293373, 29377 and 29529 of 2023. In Writ Petition No. 29039 of 2023, S. Raja Desingu is the petitioner. The respondents are: (1) The State of Tamil Nadu represented by its Secretary, Home Department, Fort St. George, Chennai 600009; (2) The Director General of Police, Post Box No.601, Dr. Radhakrishnan Salai, Mylapore, Chennai 600004; (3) The Superintendent of Police, Neethimedu, Salem 636002; (4) The Inspector of Police, Vazhapady, Salem 636115. The petition is filed under Article 226 of the Constitution of India, seeking a writ of mandamus directing the respondents to permit the members of Rashtriya Swayamsevak Sangh (RSS) to conduct a procession (route march) wearing their uniform (dark olive brown trousers, shirt, cap, belt, black shoes) led by a musical band from near Vazhappady bus stand towards Cuddalore Road via Sadiayappa Gounder Street, Thammampatty Road, Nallathambi Gounder Street, Vathi Padiayatchi Street, Ayya Gounder Street and Paruthi Mandi on 29 October 2023 between 4.00 p.m. and 8.00 p.m., and to conduct a public meeting pursuant to their representation to the second to fourth respondents dated 20 September 2023. For the petitioner: Mr. G. Rajagopalan, Senior Counsel. For Respondent 1: Mr. R. Shanmuga Sundaram, Advocate General, assisted by Mr. S. Santhosh, Government Advocate (Criminal Side) and Ms. S. Hakeena. For Respondents 2 to 4: Mr. Hasan Mohammed Jinnah, State Public Prosecutor, assisted by Mr. Udhaya Kumar, Government Advocate (Criminal Side) and Ms. J. R. Archana., These batch of Writ Petitions seeking mandamus were filed by representatives of the Rashtriya Swayamsevak Sangh because their request to obtain permission for a rally was not granted. Their request for a rally was rejected at the eleventh hour last year. Challenging the rejection order, they approached this Court filing a writ petition in Writ Petition No. 24540 of 2022. The learned Single Judge permitted the organisers of RSS to conduct the rally on certain conditions. The State filed a Special Leave Petition before the learned Single Judge seeking leave to review the order dated 22 September 2022 passed in Writ Petition No. 24540 of 2022. The review application was dismissed on 2 November 2022. Thereafter, for non‑compliance of the order, the writ petitioners initiated contempt proceedings, in which the earlier order was partly modified., The modified order of the learned Single Judge dated 22 September 2022, passed after initiation of the Court proceedings, reads as follows: (i) The procession and public meeting should be conducted in a compound premises such as a ground or stadium. Participants shall proceed on foot or by their respective vehicles without causing any hindrance to the general public or traffic. (ii) During the program, nobody shall sing songs or speak ill of any individual, caste, religion or any other group. (iii) Participants shall not, for any reason, talk or express anything in favour of organisations banned by the Government of India, nor indulge in any act disturbing the sovereignty and integrity of the country. (iv) The program should be conducted without causing any hindrance to the public or traffic. (v) Participants shall not bring any stick, lathi or weapon that may cause injury to anyone. (vi) The organiser(s) shall make adequate arrangements for drinking water and proper first aid, ambulance, mobile toilets, CCTV cameras, fire‑fighting equipment, etc., in consultation with the police, civic and local bodies as directed by the police. (vii) The organiser(s) shall keep sufficient volunteers to help the police in regulation of traffic and the participants. (viii) Only box‑type speakers should be used and the output of the speakers should not exceed 15 watts within a radius of 30 metres; cone speakers should not be used at any cost. (ix) In the procession, the processionists shall not in any manner offend the sentiments of any religious, linguistic, cultural or other groups. (x) An undertaking to reimburse the cost for any damage that may occur to any public or private property and an undertaking to bear the compensation or replacement costs, if awarded to any other institution or person, shall be provided. (xi) If there is violation of any one of the conditions imposed, the concerned police officer is at liberty to take necessary action as per law., Aggrieved by the modification of the earlier order, the writ petitioners challenged the modified order through an intra‑court appeal. The appeal was taken up as Letters Patent Appeals Nos. 6 to 50 of 2022 before the Division Bench of the Madras High Court headed by Justice R. Mahadevan and Justice Mohammed Shaffiq. After considering the petitioners’ right to conduct the rally and the State’s power to restrict that right, as well as the scope of the contempt proceedings, the Division Bench answered in the negative the question whether an order passed in the writ petitions can be altered so as to modify its fulcrum in contempt proceedings., The Division Bench, after discussing the case law at length, concluded that the State authorities must act in a manner to uphold the fundamental right to freedom of speech, expression and assembly, which is one of the most sacrosanct rights envisaged in our Constitution. The State’s approach towards citizens’ rights cannot be adversarial in a welfare State, and permission for peaceful rallies, protests, processions or meetings must be considered to maintain a healthy democracy. Consequently, the order dated 4 November 2022 passed in the contempt petitions, which is under challenge in the present Letters Patent Appeals, is set aside, and the order dated 22 September 2022 passed in the writ petitions stands restored and is enforceable. As the dates on which the appellants wanted to conduct the route‑march have passed, the Court directed the appellants to approach the State authorities with three different dates of their choice for holding the route‑march or peaceful procession, and the State authorities are directed to grant permission on one of the chosen dates. The organisation shall ensure strict discipline and no provocation or incitement, while the State shall take adequate safety measures and make traffic arrangements to ensure that the procession and the meeting proceed peacefully., The State, through its Home Secretary, filed a Special Leave Petition with delay before the Honourable Supreme Court challenging the order passed by the Division Bench of the Madras High Court. The Supreme Court condoned the delay and entertained the Special Leave Petition. After hearing the State, the Supreme Court affirmed the order passed by this Court on 22 September 2022. The operative portion of the Supreme Court judgment dated 11 April 2023, for easy reference, is extracted below: In view of the above order passed by the Supreme Court of India as well as various orders passed by this Court, it would be appropriate to direct the respondents to grant permission to conduct the procession and public meeting on 2 October 2022 at various places, subject to the following conditions on or before 28 September 2022: (i) During the program, nobody shall sing songs or speak ill of any individual, caste, religion or any other group; (ii) Participants shall not, for any reason, talk or express anything in favour of organisations banned by the Government of India, nor indulge in any act disturbing the sovereignty and integrity of the country; (iii) The program should be conducted without causing any hindrance to the public or traffic; (iv) Participants shall not bring any stick, lathi or weapon that may cause injury to anyone; (v) The organiser(s) shall make adequate arrangements for drinking water and proper first aid, ambulance, mobile toilets, CCTV cameras, fire‑fighting equipment, etc., in consultation with the police, civic and local bodies as directed by the police; (vi) The procession shall proceed in an orderly manner along the sanctioned route, keeping to the left, shall not halt on the way or cause impediment to the normal flow of traffic, and shall occupy only one‑fourth of the road; (vii) The organiser(s) shall keep sufficient volunteers to help the police in regulation of traffic and the participants; (viii) The organiser(s) of the procession/rally shall be responsible for ensuring that the route permitted by the Police Authorities is strictly followed; (ix) Only box‑type speakers should be used and the output of the speakers should not exceed 15 watts within a radius of 30 metres; cone speakers should not be used at any cost; (x) In the procession, the processionists shall not in any manner offend the sentiments of any religious, linguistic, cultural or other groups; (xi) An undertaking to reimburse the cost for any damage that may occur to any public or private property and an undertaking to bear the compensation or replacement costs, if awarded to any other institution or person, shall be provided; (xii) If there is violation of any one of the conditions imposed, the concerned police officer is at liberty to take necessary action as per law., Thus, the order of the Madras High Court dated 22 September 2022 passed in Writ Petition No. 24540 of 2022, as confirmed by the Supreme Court, has reached finality and binds the State. It is pertinent to note that while considering the appeal preferred by the State, the Supreme Court observed that the main objection raised by the State before the High Court was that after the imposition of a ban order on another organisation, law and order problems cropped up in certain places, leading to several cases being registered against the petitioners or their organisations., The chart provided by the State Government shows that the members of the respondents’ organisation were the victims in many of those cases and certainly they were not the perpetrators. Therefore, while upholding the order of the learned Judge dated 22 September 2022, the Special Leave Petition filed by the Home Secretary was dismissed., The factual background required to be extracted at length shows that the State, without considering the application for granting permission to conduct the rally, made the writ petitioners wait for nearly a month. Until filing the writ petition, no order was passed on their representations. Fearing that the State may pass orders at the eleventh hour, the organisers filed the writ petitions., After notice in the writ petitions, the State passed individual orders rejecting the request for conducting the rally. The State Administration, through the Superintendent of Police of the concerned district, issued a questionnaire containing about thirty‑six questions and sought a response from the applicant within twenty‑four hours of receipt. The applicant provided information within their exclusive knowledge. After considering the information given in response to the questionnaire, all requests were rejected on the ground that the responses were not satisfactory., Mr. R. Shanmuga Sundaram, learned Advocate General, circulated a tabular column containing information regarding the representations received from the writ petitioners, the proposed route for their road march, and the reasons for rejection. The tabulation is annexed to this judgment as part and parcel of the judgment., The respondent also filed a memo narrating the process undertaken for considering the representations, stating that having rejected their requests seeking permission to conduct the route march, the petitioner can only challenge the rejection order and therefore, present writ petitions for mandamus cannot be persuaded further. Mr. G. Rajagopalan, Senior Counsel for the petitioners, submitted that the rejection order is non‑est in law and is an act of disobedience of the Supreme Court order, which warrants action under the Contempt of Courts Act., Mr. N. L. Rajan, learned Senior Counsel representing the petitioner, referred to a three‑Judge Bench judgment of the Supreme Court of India headed by Justices K. Subba Rao, J. C. Shah and S. M. Sikri in Dwarka Nath v. Income Tax Officer, Special Circle D. Ward, Kanpur, reported in AIR 1966 SC 81, and submitted that Article 226 is couched in comprehensive phraseology to protect the right of the citizen and the Court can mould the relief and need not force the parties to make a formal petition to file the writ of certiorari‑fied mandamus or any other court challenging the rejection order, particularly when the rejection order was passed pending a writ petition seeking mandamus., This Court is in total agreement with the submission made by Mr. N. L. Rajan. It is pertinent to repeat that the application seeking permission to conduct the rally was received by the respondent about a month ago. Until filing of this writ petition, no order was passed. It was specifically alleged that this is the conduct of the State, keeping the applications pending till the eleventh hour and rejecting them only after writ petitions are filed. In the present circumstances, the rejection order was passed in the course of hearing the writ petition; since the rejection order is available and its merits and demerits are canvassed by the learned counsels on either side, this Court has no hesitation to mould the prayer as deemed fit and necessary., Considering the questionnaires and the reasons stated by the State Administration for rejecting the representations, the grounds are broadly: (i) There are mosques and churches in the procession route; (ii) There is a possibility of traffic congestion because of narrow roads, and the procession on national highways is also cited as a reason; (iii) In one rejection order, the applicant was said not to have disclosed the existence of a Dravidar Kazhagam office in the procession route. In almost all rejection orders, the requests made by the V. C. K. Party and Thamizhar Vazhvurimai Kazhagam to conduct a meeting and procession during the said period are also shown as reasons. Some earlier untoward incidents leading to registration of criminal cases are mentioned. The chart provided by the learned Advocate General, annexed to the judgment, are, at best, lame reasons. The State’s attempt to circumvent or defy the mandate of the Supreme Court order to deny permission to the organisation to conduct a rally in a democratic manner exposes the inability of the State machinery., When the matter was taken up for hearing, this Court asked the learned Advocate General and the learned Public Prosecutor whether there was any difficulty in granting permission at a particular place, date, time or route. If such difficulty existed, it could be intimated to the organisers to alter the date, time, place or route. However, the subsequent rejection orders clearly show that the State has no intention to permit the organisation to conduct the rally on 22 October 2023 or 29 October 2023. The reasons stated in the rejection orders are not pertinent to any inconvenience of the State but are general reasons that exist throughout the year. In a few rejection orders, it is stated that Devar Jayanthi is to be conducted on 30 October 2023, therefore mobilisation of forces to the southern part of the State is required. The writ petitions, however, sought permission for a procession/meeting only on 22 October 2023, about eight days earlier than Devar Jayanthi, making the reason appear neither genuine nor reasonable., Mr. G. Karthikeyan, learned Senior Counsel, drew the Court’s attention to the judgment of the Division Bench of this Court rendered in Ramasamy Udayar v. The District Collector, Perambalur District and others (Writ Appeals Nos. 743 & 2064 of 2019), wherein the Division Bench observed that, as per Section 180‑A of the District Municipalities Act, 1920, roads or streets should be used as access to the people irrespective of their religion, caste or creed. Merely because one religious group dominates a particular locality cannot be a ground to prohibit other religious groups from celebrating festivals or taking processions through those roads., The observation is relevant because in all the rejection orders, the District Administration quoted the existence of mosques and churches in the procession route. The Division Bench declared that if there is any law and order problem, the police authorities have to intervene, prevent untoward incidents and give appropriate police protection. Therefore, the petitioner's case should be accepted and a direction should be given to the authorities to permit Hindus to conduct two processions on the first and second days of the village temple festivals through all streets and roads, as had been done till 2015. The third‑day procession, involving sprinkling of turmeric water, was accepted by the petitioner not to be conducted. The facts show that religious tolerance has existed and festivals and processions were conducted smoothly through all streets and roads. Allowing religious intolerance would be detrimental to a secular country., The Court hereby declares: (1) Once roads or streets are declared secular under Section 180‑A of the District Municipalities Act, they shall be used by all people irrespective of religion, caste or creed; (2) Any procession, including religious processions, shall be conducted through all roads and streets without restriction; (3) A procession cannot be prohibited merely because another religious group resides or does business predominantly in the area; (4) Prohibition of any procession by the District Administration or police authorities is not permissible, only regulation to prevent untoward incidents is allowed; (5) Every religious group has the fundamental right to take out religious processions through all roads without insulting other religious sentiments or raising slogans against other groups; (6) The presence of a place of worship belonging to another religion cannot be a ground to deny permission for a procession of another religion; (7) The presence of religious structures cannot take away the right of other religious groups who have been enjoying the right to conduct religious processions for many years., The tenure of the rejection order is certainly not in tune with secular or democratic governance. It neither obeys nor complies with the Supreme Court’s dictum. By citing the existence of structures, places of worship of other religions or offices of organisations that do not share the RSS ideology, the request of RSS to conduct a procession and public meeting is rejected. This order is contrary to the principle of secularism, which is the foundation of the Constitution of India., The organisers of the rally, who sought permission for the procession and meeting, shall give an undertaking to the District Superintendent of Police that they will scrupulously follow the guidelines of the Honourable Supreme Court of India and will not deviate from the guidelines or any other reasonable restrictions laid by the District Administration., The respondents shall ensure a peaceful procession by providing adequate bandobust. Having now awareness of the route and prospective spots requiring concentration and attention, it is the duty and responsibility of the District Administration to make all necessary arrangements for the peaceful conduct of the rally, procession and public meeting. Accordingly, the writ petitions are allowed on the following terms, in addition to the guidelines laid by this Court in the order dated 22 September 2022 affirmed by the Supreme Court in Special Leave Petition (Civil) No. 4163 of 2023 dated 11 April 2023: (i) The Superintendent of Police of the concerned district, to whom the application is made, shall issue permission after consultation with the organisers, if necessary; (ii) The organisers may be amenable to minor changes in the route if the district administration feels it may be difficult to provide bandobust on a particular route, and the district administration may consult the organisers and provide an alternative route; (iii) The starting point and ending point shall not be compromised under the guise of changing the route; (iv) The permission in writing with necessary restrictions shall be issued at least three days prior to the date of the rally or meeting. Consequently, the connected miscellaneous petitions are closed. No costs., Copy to: (1) The Secretary, Home Department, Fort St. George, Chennai 600009; (2) The Director General of Police, Post Box No.601, Dr. Radhakrishnan Salai, Mylapore, Chennai 600004; (3) The Superintendent of Police, Neethimedu, Salem 636002; (4) The Inspector of Police, Vazhapady, Salem 636115; (5) The Public Prosecutor, High Court, Madras.
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This criminal appeal under Section 374(2) of the Criminal Procedure Code is preferred by the accused/appellant, who is aggrieved by the judgment dated 13 December 2019 passed by the Sessions Judge, Umaria, in S.T. No. 59 of 2017 (State of Madhya Pradesh Vs. Manoj Sahu), whereby the appellant was convicted for commission of an offence under Section 363 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and a fine of Rs 500, with default stipulations., The prosecution case in brief is that on 14 September 2016 at about 02:15 p.m., Moorat Prasad Sahu, resident of village Ratheli, Police Station Umaria, District Umaria, Madhya Pradesh, appeared at the Police Station and lodged a First Information Report stating that he is a farmer, has two sons and two daughters, and that his younger daughter Rinki, a student of Government Higher Secondary School, Karkeli, Class XII, left for school on 12 September 2016 after having breakfast at around 09:00 a.m. and did not return home till evening. He searched for his daughter at relatives’ houses, at Karkeli and Umaria but could not trace her. Rinki is 17 years and six months old, fair‑complexioned, 5 ft tall, wearing a blue kurta, white salwar and white shoes, and speaks Hindi and the local language. It appeared that someone had lured her away. Manoj Sahu, son of Sudama Prasad Sahu of the same village, was also not at home from the same day, leading the father to suspect that Manoj had kidnapped his daughter., On the basis of the narration given by Moorat Prasad Sahu, FIR (Exhibit P‑1) was registered at Police Station Umaria as FIR No. 461 of 2016 for commission of an offence under Section 363 of the Indian Penal Code. After investigation, a charge‑sheet was filed against the accused before the Chief Judicial Magistrate, Umaria, who committed the case to the Court of Sessions., The Sessions Judge, Umaria, framed charges against the appellant for commission of offences under Sections 363 and 366‑A of the Indian Penal Code. The appellant abjured guilt and claimed to be tried., In order to prove its case, the prosecution examined Witnesses Moorat Prasad Sahu (Witness 4), Vinod Kumar Sahu (Witness 5), Ramesh Singh (Witness 6), Vipin Tiwari (Witness 7) and S.N. Mishra (Witness 8). The appellant did not examine any witness in his defence., The trial Court, after considering oral and documentary evidence, convicted the appellant Manoj Sahu for commission of an offence under Section 363 of the Indian Penal Code and sentenced him as stated above., Counsel for the appellant assailed the findings of the trial Court recorded in the impugned judgment, submitting that the trial Court had not properly appreciated the evidence of prosecution witnesses and had miserably failed to prove that at the time of the alleged kidnapping Rinki was below 18 years of age. Despite this, the trial Court, without any evidence, convicted the appellant under Section 363 of the Indian Penal Code., Counsel for the respondent State supported the impugned judgment and submitted that the appeal was filed without any merit and should be dismissed., Having considered the rival arguments advanced by counsel for the parties and having perused the trial Court record and the impugned judgment, the High Court of Madhya Pradesh proceeds to examine the evidence., For an offence under Section 363 of the Indian Penal Code, the prosecution is obliged to prove that at the time of kidnapping the victim was below 18 years of age., Moorat Prasad Sahu, the father of Rinki, deposed that on 12 September 2016 his daughter was 17 years and six months old, but in cross‑examination he stated that her exact date of birth was not known to him. Lalli Bai, the mother, also did not depose that her daughter was below 18 years of age. Consequently, from the parents’ evidence it is not proved that Rinki was a minor at the time of the alleged offence., Rinki herself deposed that she is educated up to Class X, does not know her exact date of birth, and that the Pragati Patrak (Exhibit P‑4) records her date of birth as 18 March 1999. In cross‑examination she reiterated that her exact date of birth is unknown to her. Vivek Sahu, her brother, and Vinod Sahu, her uncle, also did not state any exact date of birth., The trial Court, relying on the date of birth mentioned in Pragati Patrak (Exhibit P‑4), concluded that Rinki’s date of birth was 18 March 1999 and therefore she was below 18 years of age on 12 September 2016. However, the prosecution did not examine the headmaster, any teacher, or any other school official to prove the genuineness of the Pragati Patrak, rendering the document inadmissible for the purpose of establishing age., In Murgan @ Settu Vs. State of Tamil Nadu, AIR 2011 SC 1691, the Supreme Court held that while considering documents admissible under Section 35 of the Evidence Act, the court must examine the probative value of the contents and may require corroboration., In Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, the Supreme Court observed that an entry in a public or official register is admissible under Section 35 of the Indian Evidence Act only if it is made by a public servant in discharge of official duty, and that an entry regarding date of birth in a school register has limited evidentiary value without corroboration., In Alamelu and another v. State, (2011) 2 SCC 385, the Supreme Court reiterated that mere production of a document as an exhibit does not constitute proof of its contents; the execution of the document must be proved by admissible evidence., In CIDCO v. Vasudha Gorakhnath Mandevlekar, AIR 2009 SC (Supp) 2845, the Court held that entries in statutory death and birth registers raise a presumption of correctness and are admissible under Section 35 of the Evidence Act, prevailing over school register entries in the absence of proof of the latter’s authenticity., The Transfer Certificate (Exhibit P‑15) issued by the school cannot be accepted as proof of age because it was obtained after the incident, and the principal or teachers were not examined. Similarly, the admission form (Exhibit P‑14) signed by the witness Ramesh was not examined, rendering the entries regarding date of birth in Exhibits P‑13, P‑14 and P‑15 unreliable., In State of Madhya Pradesh v. Munna @ Shambhu, (2016) 1 SCC 696, the school certificate was not believed because the principal could not explain the basis on which the date of birth was recorded in the school register., Thus, the prosecution has failed to establish that Rinki was below 18 years of age at the time of the alleged kidnapping. The cardinal principle of criminal jurisprudence requires the prosecution to prove its case beyond reasonable doubt, which it has not done., Moorat Prasad Sahu, Lalli Bai, Vivek Sahu and Vinod Sahu have not deposed anything against the accused, resulting in a lack of evidence of kidnapping., Rinki testified that she voluntarily went from Karkeli to Katni, called Manoj, and thereafter traveled to Nagpur with him, staying there for six to seven months before returning to Umaria. She stated in cross‑examination that she went to Nagpur of her own free will and did not allege any force or inducement by the accused., A meticulous scrutiny of Rinki’s evidence indicates that she was above 18 years of age at the time of the occurrence and went with the accused voluntarily., In S. Varadrajan Vs. State of Madras, AIR 1965 SC 942, the Supreme Court distinguished between ‘taking’ a minor and ‘allowing’ a minor to accompany a person, holding that mere facilitation does not amount to kidnapping unless the accused actively induced the minor to leave the guardian’s protection., In Lakhanlal Vs. State of Madhya Pradesh, 2004(4) MPLJ 423, the Court held that for an offence under Section 366 of the Indian Penal Code, it must be proved that the girl kidnapped was under 18 years of age, and the burden of proving her minority rests on the prosecution., Accordingly, the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt. The criminal appeal is allowed, the judgment of conviction and order of sentence dated 13 December 2019 convicting the appellant under Section 363 of the Indian Penal Code is set aside, the appellant Manoj Sahu is acquitted of the charge, his bail bond is discharged, and he is entitled to recover the fine amount from the trial Court., The trial Court record along with a copy of the judgment shall be sent down to the trial Court immediately.
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Reportable Moturu Nalini Kanth Appellant Versus Gainedi Kaliprasad (deceased, through legal representatives) Respondents., Moturu Nalini Kanth, then a minor, claimed absolute right and title over the properties of late Venkubayamma under a registered Will Deed dated 03.05.1982. It was also claimed that he was adopted by her, as evidenced by a registered Adoption Deed dated 20.04.1982. Nalini Kanth was not even a year old at that time, as he was born on 10.07.1981. O.S. No. 113 of 1983 was filed by Nalini Kanth, through his guardian, for declaratory and consequential reliefs in respect of Venkubayamma's properties. The learned Principal Subordinate Judge, Srikakulam, held in his favour, vide judgment dated 30.09.1989, and decreed the suit. However, in appeal, the High Court of Andhra Pradesh held against Nalini Kanth, vide judgment dated 11.12.2006, and allowed Appeal Suit No. 2695 of 1989 filed by Gainedi Kaliprasad, Venkubayamma's grandson through her deceased daughter, Varalaxmi. Hence, this appeal by Nalini Kanth., Nalini Kanth's prayer in O.S. No. 113 of 1983 before the learned Principal Subordinate Judge, Srikakulam, filed through his guardian, was for declaration of his title to the suit properties that had belonged to Venkubayamma and for recovery of their possession from Kaliprasad, Defendant No.1. His case was that he was adopted by Venkubayamma on 18.04.1982 at Sri Sri Raghunadha Swamy Temple at Bhapur in Berhampur City, Ganjam District, Orissa (presently, Odisha). It was claimed that the Adoption Deed (Exhibit A9) was executed on 20.04.1982 and it was registered on the same day. It was signed by his natural parents who gave him in adoption and also by his adoptive mother. Thereafter, Venkubayamma executed a registered Will Deed dated 03.05.1982 (Exhibit A10) in a sound state of mind bequeathing all her properties to him. Thereby, Venkubayamma also cancelled her earlier Will Deed dated 26.05.1981 (Exhibit A19), executed in favour of Kaliprasad, her grandson. Under Exhibit A10 Will, Venkubayamma appointed Pasupuleti Anasuya (Petitioner Witness 1) as the executor of the Will and also as the guardian of Nalini Kanth, in the event she died during his minority. In fact, Venkubayamma died just two months later, on 26.07.1982. Defendants No. 2 to 12 in the suit were Venkubayamma's tenants. As disputes arose between Pasupuleti Anasuya, Nalini Kanth's guardian, and Kaliprasad as to who was entitled to receive the rents, the suit in O.S. No. 113 of 1983 came to be filed by her on his behalf., The suit was contested by Kaliprasad. He challenged the Adoption Deed as well as the Will Deed, under which Nalini Kanth claimed rights. He alleged that Venkubayamma was a resident of Srikakulam and was very old in 1982. According to him, she was senile and was not in a position to exercise free will and consciousness. He asserted that the adoption was not true, valid or binding on him. He contended that Exhibit A10 Will was invalid as it was not properly attested. He claimed that Venkubayamma had brought him up and got his marriage performed and that she had always treated him as her sole heir and successor., The Trial Court settled the following issues for consideration: Whether the plaintiff is the adopted son of Venkubayamma and the Adoption Deed dated 19.04.1982 (sic) is true? Whether the registered Will dated 03.05.1982 executed by late Venkubayamma is true and valid? Whether the plaintiff is entitled to the possession of the suit properties? To what relief? Petitioner Witnesses 1 to 15 were examined for the plaintiff, Nalini Kanth, by his guardian. Exhibit A1 to A25 were marked on his behalf. Kaliprasad examined himself as Defendant Witness 1. He also examined Defendant Witnesses 2 and 3 but did not adduce any documentary evidence. Exhibits C1 & C2 and Exhibits X1 & X2 were also made part of the record. Exhibit C1 is the affidavit dated 16.09.1982 of Balaga Sivanarayana Rao, stating that he had scribed Exhibit A10 Will Deed. It was attested by B. Prasada Rao, Advocate. Exhibit C2 is stated to be the affidavit dated 16.09.1982 of Pydi Appala Suranna, an attesting witness to Exhibit A10 Will Deed. It was attested by K. V. Ramanayya, Advocate. Exhibits X1 and X2, as per the version of Nalini Kanth's guardian, are the thumb marks of Venkubayamma but this is disputed by Kaliprasad., At this stage, we may note that the contesting parties are all related to Venkubayamma. Kaliprasad, as stated earlier, is the son of her predeceased daughter, Varalaxmi. Nalini Kanth is the son of her brother's son, viz., P. Panduranga Rao. Pasupuleti Anasuya, the guardian, is P. Panduranga Rao's elder sister and the paternal aunt of Nalini Kanth., Deposing as Petitioner Witness 1, Pasupuleti Anasuya stated as follows: Venkubayamma had extended an invitation to attend the adoption of Nalini Kanth. Exhibit A1 is the invitation. The adoption took place at Raghunadha Swamy Temple, Berhampur, at 10 a.m. on 18.04.1982 and all their relations and friends attended the ceremony. All the customary rituals for adoption took place and the natural parents physically handed over the child to Venkubayamma but she, herself, was not present when the child was physically handed over. Exhibits A2 to A4 photographs were taken at that time. Exhibits A5 to A7 are the negatives thereof. Exhibit A8 cash receipt was issued by the photographer, Sunkara Papa Rao. The Adoption Deed dated 20.04.1982 is Exhibit A9. Venkubayamma executed a registered Will on 03.05.1982 and it is Exhibit A10. She was in a sound and disposing state of mind till her death. Venkubayamma gave necessary instructions to the scribe for writing Exhibit A10 Will and she went with her to the Sub-Registrar's office. In her cross‑examination, Petitioner Witness 1 admitted that she was not there in any of the photos (Exhibits A2 to A4). She denied the suggestion that Venkubayamma was not at all present in those photographs and that she never adopted Nalini Kanth by executing Exhibit A9 Adoption Deed., P. Panduranga Rao, the natural father of Nalini Kanth, deposed as Petitioner Witness 2. He stated that Venkubayamma was his father's sister and that he, along with his wife, gave their second son, Nalini Kanth, in adoption to her. He said that the adoption ceremony took place on 18.04.1982 and Exhibit A1 was the invitation printed on that occasion. He also spoke of Exhibits A2 to A4 photographs and asserted that the child was handed over by him and his wife to Venkubayamma in adoption. He admitted his signature in the Adoption Deed (Exhibit A9). In his cross‑examination, Petitioner Witness 2 admitted that Venkubayamma brought up Kaliprasad from childhood, got him educated and performed his marriage. He also admitted that none of the relatives of Venkubayamma residing at Srikakulam attended the adoption ceremony. He also stated that Kaliprasad was residing in the house of Venkubayamma at the time of Nalini Kanth's adoption in 1982., Petitioner Witness 3 is one of the attestors of Exhibit A9 Adoption Deed and he is the brother of Petitioner Witnesses 1 and 2. According to him, the other attesting witness to the document as well as the scribe thereof had expired. He stated that all the rituals had taken place at the time of adoption and the ceremonies were conducted at Raghunadha Swamy Temple at Berhampur at 10 a.m. He also spoke of Exhibits A2 to A4 photographs being taken at that time. He further stated that the adoption was registered at Berhampur on 20.04.1982. Petitioner Witness 4 is the photographer who took Exhibits A2 to A4 photographs, which were marked along with Exhibits A5 to A7 negatives and Exhibit A8 receipt by Petitioner Witness 1., Petitioner Witness 5, an Advocate, was examined to identify Venkubayamma in the photographs, as he claimed to be a distant relative. He stated that the woman in Exhibit A3 photograph, wearing spectacles, was Venkubayamma and that she was also seen in Exhibit A2 photograph. He stated that in Exhibit A4 photograph, she was seen holding a child in her lap. He stated in his cross‑examination that Kaliprasad was with Venkubayamma for ten years., Petitioner Witness 6 is the document writer who scribed Exhibit A10 Will Deed. He said that he knew Pydi Appala Suranna, one of the attestors thereto, but he was no more. He stated that he did not know the other attestor. He claimed that he had known Venkubayamma for about five or six years. He admitted that Exhibit C1 was in his handwriting and bore his signature. He also admitted that Exhibit C2 was in his handwriting and claimed that Pydi Appala Suranna had signed therein. He said that he was not present when Venkubayamma signed Exhibit A10 Will. He was cross‑examined by the plaintiff's counsel. During such cross‑examination, he stated that he wrote Exhibit C1 affidavit at the dictation of the plaintiff's counsel at his house. He further stated that he did not see who exactly signed in Exhibit A10 Will Deed. A woman was stated to be sitting at a distance but he did not know if she was Venkubayamma and whether she signed the document. He stated that the prior Will of Venkubayamma dated 26.05.1981 (Exhibit A19) was also written by him and Venkubayamma had signed the same in his presence. He further stated that he told the plaintiff's counsel that, as he did not see Venkubayamma signing the Will, he would not sign the affidavit. However, the plaintiff's counsel persuaded him to sign it, saying that he need not worry about it and that there would be no consequences. He claimed that some lady from Berhampur who was a relation of Venkubayamma brought the earlier Will to him and he mentioned the date of the said Will in Exhibit A10 Will. In his cross‑examination by the defence, Petitioner Witness 6 stated that while he was in the Registrar's office attending to some work, a lady from Berhampur came to him and on that day, the document was written. He further stated that he knew Venkubayamma but she did not come to him on that day. The woman who came from Berhampur gave all the information to write the document and the recital in the Will that the plaintiff's adoption took place in the house of his natural parents in Chandramanipeta of Berhampur town was made only on the instructions given by the woman. The other particulars mentioned in the Will were also stated to have been given by the same woman. After the writing of the document, according to Petitioner Witness 6, Venkubayamma and the witnesses did not come to him and he did not go to them. He stated that they took the written Will saying that Venkubayamma could herself read the document. He further stated that Pydi Appala Suranna, one of the attestors, also did not sign before him. He also said that he could not say whether the signature in Exhibit A10 was that of Pydi Appala Suranna. In his further cross‑examination by the plaintiff's counsel, Petitioner Witness 6 denied the suggestion that he was told that the adoption took place at Raghunadha Swamy Temple and the other formal ceremonies were performed at the natural parents' house but he omitted to write that the adoption took place at the temple., Petitioner Witness 7 is the purohit who is stated to have performed the adoption ceremonies. He stated that his native place was Berhampur and he had been performing puja rituals for about twelve years. He stated that he was the purohit for the family of P. Panduranga Rao (Petitioner Witness 2). He further stated that he knew Venkubayamma as she used to visit her parents' house. He stated that he had performed puja at the time of the adoption. He claimed that the adoption ceremony took place in Raghunadha Swamy Temple and datta homam was also performed. He further claimed that after the datta homam, the child was physically handed over to the adoptive mother by the parents and photos were taken on that occasion. He identified himself along with the adoptive mother, the natural parents and the child in Exhibit A2 and Exhibit A3 photographs. He further stated that after the official adoption was over at the temple, they worshipped their personal deity at home. Petitioner Witness 7 stated in his cross‑examination that he used to see Venkubayamma once or twice a year at her parents' house in Chandramanipeta. He was questioned about certain ceremonies in the context of adoption and stated that he had not performed the same. He denied the suggestion that the woman in Exhibits A2 to A4 photographs was not Venkubayamma. He, however, stated that Raghunadha Swamy Temple was in Chandramanipeta and Ramalingeshwara and Mukteshwara Temples were in Bhapur., Petitioner Witness 8 is the Advocate who attested Exhibit C1 affidavit. Petitioner Witness 9 is the Sub‑Registrar at Chodavaram who registered Exhibit A19 Will. He stated in his cross‑examination that he did not know Venkubayamma personally and that the identifying witnesses told him that the executant was Venkubayamma. He said that the executant also stated her name to him. Petitioner Witness 10 was a Director of the Finger Prints Bureau at Madras. His evidence was that the thumb prints in the Adoption Deed and the Will Deed were identical to the thumb print of Venkubayamma in the Sub‑Registrar's record pertaining to Exhibit A19 Will. Petitioner Witness 11 was from the Registration Department at Kurnool and spoke of Venkubayamma affixing her thumb print in Exhibit A10 Will in his presence. However, in his cross‑examination, Petitioner Witness 11 admitted that he did not know her personally and relied only on the identifying witnesses. He also could not say what the age of the said executant was, due to lapse of time. Petitioner Witness 12, an Advocate at Srikakulam, stated that he knew Venkubayamma, who was a client of his father and, thereafter, himself. He further stated that he could identify her and claimed that the woman, wearing glasses and holding a child, in Exhibits A2 and A3 photographs, was Venkubayamma. He admitted in his cross‑examination that, though Venkubayamma was about seventy years of age in 1970, she did not appear to be of that age in the photographs. He did not know when she died but stated that she died by 1985., Petitioner Witness 13 is the Advocate who attested Exhibit C2 affidavit. He admitted in his cross‑examination that he previously did not know Pydi Appala Suranna, the deponent thereto. Petitioner Witness 14 was an invitee to the adoption ceremony at Berhampur. He claimed to be in Exhibit A4 photograph. However, in his cross‑examination, he admitted that Venkubayamma must have been about sixty‑five to seventy years old but the lady in Exhibit A4 photograph was about forty‑five years of age. He also admitted that he was only acquainted with Petitioner Witness 2, the natural father of the adopted child, and that he had no relationship or friendship either with Venkubayamma or her husband and, except by way of Petitioner Witness 2's introduction that she was Venkubayamma, he had no other source of information. Petitioner Witness 15 was an identifying witness in Exhibit A10 Will. According to him, Pydi Appala Suranna and a person, whose name he did not know, attested Exhibit A10 Will on the Sub‑Registrar's Office verandah. He claimed he was present when the attestors and the scribe signed Exhibit A10. He said that he could identify Venkubayamma and claimed that she was the third person, wearing spectacles, in Exhibit A2 photograph. He identified her as the woman sitting, wearing glasses, with a baby in her lap, in Exhibit A3. He also identified her in Exhibit A4. He asserted that he knew Venkubayamma for the last ten years but he did not know any other details or when she died., Kaliprasad deposed as Defendant Witness 1. He stated that Venkubayamma was his mother's mother and asserted that she never adopted any boy during her lifetime. He asserted that Venkubayamma only had one daughter and he was the son of that daughter. He claimed to be the sole heir to the properties of late Venkubayamma. He claimed that since childhood, he was brought up in Venkubayamma's house and that his marriage was performed by her in February 1982. According to him, Venkubayamma was between seventy‑five to eighty years of age at the time of her death. He said that she told him about a Will in his favour after his marriage but he had not seen the document. He denied that she had adopted a boy. According to him, she went to Srikakulam till the second week of July 1982, and after that, she wanted to go to her relatives' houses at Vizianagaram, Berhampur and Khurda Road. He further stated that, by the time he attained the age of discretion, Venkubayamma's hair had turned grey and asserted that it was false that Exhibits A2 to A4 photographs were of Venkubayamma. He stated that she used to write letters to him whenever she was in camp and he was therefore acquainted with her signature and handwriting. He stated that Exhibit A9 Adoption Deed did not bear the signature of Venkubayamma. He further stated that Exhibits X1 and X2 were not the thumb marks of Venkubayamma. He denied the suggestion that Venkubayamma had adopted Nalini Kanth and had executed a Will, whereby he would be entitled to her properties., In his cross‑examination, Kaliprasad stated that he did not have any photograph of Venkubayamma. He denied the suggestion that she used to apply hair dye. He also denied that the woman in Exhibits A2 and A3 photographs was Venkubayamma. According to him, Venkubayamma used to write letters to him while he was at Hyderabad and she was in the habit of signing in English using disjointed letters. He admitted that some of her letters were signed in Telugu but a few were signed in English. He asserted that the signatures in Exhibit A10 were not that of Venkubayamma and denied that the thumb marks (Exhibits X1 and X2) were of Venkubayamma., As already noted supra, the Trial Court held in favour of Nalini Kanth but, in appeal, the High Court of Andhra Pradesh reversed that decision. In essence, this case would turn upon the validity of Exhibit A10 Will. Further, the validity of Exhibit A9 Adoption Deed would also require examination. In the event Exhibit A10 Will is found to be valid, Nalini Kanth would be the sole heir thereunder, but if it is held to be invalid and Exhibit A9 Adoption Deed is found to be valid, he would be an heir, as an adopted son, along with Kaliprasad, the grandson. He would then be entitled to a half‑share in the suit properties., First and foremost, we may note the essential legal requirements to prove a Will. Section 63 of the Indian Succession Act, 1925 (for brevity, the Succession Act), prescribes the mode and method of proving a Will and, to the extent relevant, it reads as under: 63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: (c). The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary., In turn, Sections 68 and 69 of the Indian Evidence Act, 1872 (for brevity, the Evidence Act), read as under: 68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. Section 69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person., Mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of the above legal mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam, this Court held that the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with to prove a Will and the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that a person propounding a Will has got to prove that it was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These principles were affirmed in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others., More recently, in Ramesh Verma (Dead) through legal representatives vs. Lajesh Saxena (Dead) through legal representatives and another, this Court observed that a Will, like any other document, is to be proved in terms of the provisions of the Evidence Act. It was held that the propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. It was noted that this is the mandate of Section 68 of the Evidence Act and the position would remain the same even when the opposite party does not deny the execution of the Will., Long ago, in H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, a three‑Judge Bench of this Court noted that there is an important feature which distinguishes Wills from other documents as, unlike other documents, a Will speaks from the death of the testator and, therefore, when it is propounded or produced before a Court, the testator who has already departed from the world cannot say whether it is his Will or not. It was held that the onus on the propounder to prove the Will can be taken to be discharged on proof of the essential facts, such as, that the Will was signed by the testator; that the testator at the relevant time was in a sound and disposing state of mind; that he understood the nature and effect of the dispositions; and that he put his signature to the document of his own free will. It was, however, noted by the Bench that there may be cases in which the execution of the Will is surrounded by suspicious circumstances and the same would naturally tend to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator., Again, in Jagdish Chand Sharma vs. Narain Singh Saini (Dead) through legal representatives and others, this Court held as under: 57. A will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. As understandably, the testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63(c) of the Act and Section 68 of the 1872 Act is thus befitting the underlying exigency to secure against any self‑serving intervention contrary to the last wishes of the executor. 57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either deny/deny the execution of the document or cannot recollect the said incident., Earlier, in Bhagat Ram and another vs. Suresh and others, this Court observed as under: 12. According to Section 68 of the Evidence Act, 1872, a document required by law to be attested, which a Will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amenable to the process of the court. The proviso inserted in Section 68 by Act 31 of 1926 dispenses with the mandatory requirement of calling an attesting witness in proof of the execution of any document to which Section 68 applies if it has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. However, a Will is excepted from the operation of the proviso. A Will has to be proved as required by the main part of Section 68., Thereafter, in Benga Behera and another vs. Braja Kishore Nanda and others, this Court held thus: 40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant., Much more recently, in Ashutosh Samanta (Dead) by legal representatives and others vs. SM. Ranjan Bala Dasi and others, this Court noted that where the attesting witnesses died or could not be found, the propounder of the Will is not helpless, as Section 69 of the Evidence Act would be applicable. On facts, this Court found that others who were present at the time the testator and the two attesting witnesses signed the Will were examined and the Will was also supported by a registered partition deed which gave effect to it. Considering these circumstances in totality and as none of the heirs of the testator contested the grant of letters of administration, this Court held that there could be only one conclusion, i.e., that the Will was duly executed and the propounder was successful in proving it. Notably, there was no contest to the Will and that is a distinguishing factor when compared with the case on hand., On the same lines, in Ved Mitra Verma vs. Dharam Deo Verma, having found that the attesting witnesses had died, this Court held that the examination of the Sub‑Registrar, who had registered the Will and who spoke of the circumstances in which the attesting witnesses as well as the testator had signed on the document, would be sufficient to prove the Will in terms of Section 69 of the Evidence Act.
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However, in Apoline D Souza vs. John D Souza, the Supreme Court of India noted that Section 68 of the Indian Evidence Act provides for the mode and manner through which execution of a will is to be proved and held that proof of attestation of a will is a mandatory requirement. Referring to the earlier judgment in Naresh Charan Das Gupta vs. Paresh Charan Das Gupta, which held that merely because the witnesses did not state that they signed the will in the presence of the testator, it could not be held that there was no due attestation and that it would depend on the circumstances elicited in evidence as to whether the attesting witnesses signed in the presence of the testator, the Supreme Court of India held that the mode and manner of proving due execution of the will would indisputably depend upon the facts and circumstances of each case, and it is for the propounder of the will to remove the suspicious circumstances., In Bhagavathiammal vs. Marimuthu Ammal and others, a learned judge of the Madurai Bench of the Madras High Court observed that the difference between Section 68 and Section 69 of the Indian Evidence Act is that, in the former, at least one attesting witness has to be called for the purpose of proving execution, and in the latter, it must be proved that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. It was rightly observed that Section 69 does not specify the mode of such proof; in other words, the handwriting can be spoken to by a person who has acquaintance with the handwriting or the signature can be proved by comparison with the admitted handwriting or signature of the person executing the document., Applying the above edicts to the case on hand, we note that neither of the attesting witnesses to Exhibit A10 Will Deed, viz., Pydi Appala Suranna and B. A. Ramulu, was examined before the trial court in compliance with Section 68 of the Indian Evidence Act. Pydi Appala Suranna was stated to have expired by the time the trial commenced and the whereabouts of B. A. Ramulu were not known. Therefore, Section 69 could have been used to prove the will, but no witness familiar with the signature of either attesting witness was examined, nor was any admitted signature produced before the trial court. The mere marking of Exhibits C1 and C2 affidavits was not sufficient to satisfy the requirement of Section 69. Moreover, Balaga Sivanarayana Rao (PW 6), the scribe of those affidavits, said that Pydi Appala Suranna did not sign Exhibit A10 Will in his presence and he could not say whether the signature therein was that of Pydi Appala Suranna. Similarly, K. V. Ramanayya (PW 13), who attested Exhibit C2 affidavit, supposedly of Pydi Appala Suranna, said that he did not even know Pydi Appala Suranna and therefore could not vouch for his identity. No evidence was adduced to prove the signature of the other attesting witness, B. A. Ramulu., The contention that Section 69 does not require actual proof of the handwriting of at least one attesting witness and proof of the signature of the executant being in that person’s handwriting cannot be accepted. Ashutosh Samanta and Ved Mitra Verma also did not hold so, and, in any event, both are distinguishable on facts. In one case there was no contest to the will and in the other the Sub‑Registrar himself adduced acceptable evidence in purported discharge of the mandate of Section 69. Presently, no such clinching evidence has been produced to satisfy that mandate. It may be noted that PW 11, who was from the Registration Department, admitted that he did not know Venkubayamma personally and could not even recall her age; therefore his evidence that he witnessed the signing of Exhibit A10 Will has no import in establishing its genuineness and validity. Exhibit A19 Will Deed dated 26.05.1981 was marked in evidence by Nalini Kanth’s guardian, Pasupuleti Anasuya, but it was not proved as per Section 63 of the Indian Evidence Act. Kaliprasad said that he had never seen it; therefore, merely because Kaliprasad was shown as the sole legatee therein, it cannot be accepted as genuine. Consequently, the signatures and thumb marks therein and those available with the Registration Department cannot be assumed to be those of Venkubayamma. The document was executed on 26.05.1981, just about a year before Exhibit A10 Will dated 03.05.1982, and comparison of thumb marks does not prove anything., For the purposes of Section 69, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the will. The very purpose of insisting upon examination of at least one attesting witness would be lost if the requirement were reduced to a stray witness deposing that he saw the attesting witness sign. The evidence of the scribe of the disputed will (PW 6) also casts doubt on the identity of the executant, as he specifically stated that a woman was sitting at a distance but he could not tell whether she was Venkubayamma and could not tell whether Venkubayamma had signed the document. In effect, Exhibit A10 Will was not proved in accordance with law and it can have no legal consequence. Nalini Kanth’s claim of absolute right and title over Venkubayamma’s properties on the strength thereof therefore has no legs to stand upon and is liable to be rejected., The suspicious circumstances that surround Exhibit A10 Will render it highly unbelievable. Venkubayamma performed Kaliprasad’s marriage in February 1982, i.e., just a few months before the alleged adoption ceremony and execution of Exhibit A9 and Exhibit A10. PW 2, Nalini Kanth’s natural father, also stated this and said that Kaliprasad was residing with Venkubayamma at the time of the adoption. These admitted facts make the total disinheritance of Kaliprasad under Exhibit A10 Will surprisingly odd and opposed to normal behaviour. The disowning of her own grandson by Venkubayamma is a suspicious circumstance that remained unexplained. Unless there was some catastrophic incident which estranged her from him during those two months, it is not believable that Venkubayamma would have cast out her own grandson and excluded him from her will. A passing sentence in Exhibit A10 Will that he became uncaring towards her and was placing her in difficulties is not sufficient to explain this total disinheritance within a few months of performing his marriage, especially when the witnesses’ evidence confirmed that he was with her and on amicable terms throughout., Venkubayamma stated in Exhibit A10 Will that the adopted child would perform her funeral rites, pinda pradaan and other annual shastric ceremonies of her ancestors. As already noted, the adopted child was less than one year old at that time and Venkubayamma was in her seventies, if not more. If so, this expectation was wholly unrealistic. Significantly, Kaliprasad stated that he performed the obsequies of Venkubayamma, his grandmother. Furthermore, the scribe of Exhibit A10 Will (PW 6) categorically stated that the instructions for scribing it were given by some other woman and not Venkubayamma, whereas Pasupuleti Anasuya (PW 1) stated that it was Venkubayamma herself who gave such instructions. So many suspicious circumstances surrounding Exhibit A10 Will make it very difficult for us to accept and act upon it, even if it had been proved as per law., Regarding the adoption ceremony of 18.04.1982 and Exhibit A9 Adoption Deed, where Nalini Kanth would, in the alternative, claim a half‑share in Venkubayamma’s properties, the same are also shrouded with equally suspicious circumstances. Exhibit A9 Adoption Deed was registered and Section 16 of the Hindu Adoptions and Maintenance Act, 1956 raises a presumption in favour of a registered document relating to adoption. The provision reads: ‘Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.’ The presumption is rebuttable., In G. Vasu vs. Syed Yaseen Sifuddin Quadri, a Full Bench of the Andhra Pradesh High Court pointed out that presumptions are of two kinds – presumptions of fact and of law. A presumption of fact is an inference logically drawn from one fact as to the existence of other facts and such presumptions are rebuttable by evidence to the contrary. A presumption of law may be either irrebuttable or rebuttable; a rebuttable presumption of law is a legal rule to be applied by the courts in the absence of conflicting evidence. This view was affirmed by the Supreme Court of India in Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Payrelal, which held that to disprove a presumption, facts and circumstances have to be brought on record, upon consideration of which the court may either believe that the consideration did not exist or that its non‑existence was so probable that a prudent person would act upon the plea that it did not exist., Section 11 of the Act stipulates the conditions to be complied with to constitute a valid adoption. Relevantly, it provides that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned with intent to transfer the child from the family of its birth, and that the performance of datta homam shall not be essential to the validity of adoption., In Laxmibai (Dead) through LRs. and another vs. Bhagwantbuva (Dead) through LRs. and others, the Supreme Court of India held that the mere signature or thumb impression on a document is not adequate to prove its contents, but where a person who has given his son in adoption appears in the witness box and proves the validity of the document, the court ought to accept the same taking into consideration the presumption under Section 16 of the Act. Thus, proving the validity of the document is a must., In Kishori Lal vs. Mst. Chaltibai, a three‑judge bench of the Supreme Court of India held that, as an adoption results in changing the course of succession, it is necessary that the evidence to support it be free from all suspicions of fraud and be consistent and probable so as to leave no occasion for doubting its truth. On the facts, the bench found that no invitations were sent to the brotherhood, friends or relations and no publicity was given to the adoption, rendering it difficult to believe., In Govinda vs. Chimabai and others, a Division Bench of the Mysore High Court observed that the mere fact that a deed of adoption has been registered cannot be taken as evidence of proof of adoption, as an adoption deed never proves an adoption. The factum of adoption has to be proved by oral evidence of giving or taking of the child and the necessary ceremonies, where required, must be carried out in accordance with the shastras., In Padmalav Achariya and another vs. Srimatyia Fakira Debya and others, the Privy Council found that a cloud of suspicion rested upon an alleged second adoption and that the factum of the second adoption was sought to be proved on the basis of evidence of near relatives who were also partisan, which made it unsafe to act upon their testimonies. Both adoptions were deemed most improbable and not supported by contemporaneous evidence., In Jai Singh vs. Shakuntala, the Supreme Court of India noted the statutory presumption envisaged by Section 16 of the Act and observed that although the legislature used ‘shall’, the inclusion of the words ‘unless and until it is disproved’ makes the provision flexible enough to depend upon the evidence on record. The court held that the presumption is rebuttable, that the registered instrument of adoption is presumed correct but the court is not precluded from looking into it upon production of contrary evidence, and that Section 11(vi) – the requirement of give and take – is a sine qua non for a valid adoption., In Mst. Deu and others vs. Laxmi Narayan and others, the Supreme Court of India observed that, in view of Section 16 of the Act, whenever any document registered under law is produced before the court purporting to record an adoption and is signed by the persons mentioned therein, the court should presume that the adoption has been made in compliance with the statute unless and until it is disproved. It was further held that persons who challenge the registered deed of adoption may disprove it by taking independent proceedings., In Lakshman Singh Kothari vs. Rup Kanwar (Smt) alias Rup Kanwar Bai, the court observed that under Hindu law there cannot be a valid adoption unless the adoptive boy is transferred from one family to another by the ceremony of giving and taking. The ceremony may vary depending on circumstances, but a formal act of handing over and receiving is essential, and the parents may delegate the physical act to a third party., In M. Vanaja vs. M. Sarla Devi (Dead), the court held that a plain reading of the provisions of the Act makes it clear that compliance with the conditions in Chapter I is mandatory for an adoption to be treated as valid, and that the two important conditions mentioned in Sections 7 and 11 are the consent of the wife before a male Hindu adopts a child and the proof of the ceremony of actual giving and taking in adoption., In Dhanno w/o Balbir Singh vs. Tuhi Ram (Died), a learned judge of the Punjab & Haryana High Court, faced with the argument that Section 16 required a registered adoption deed to be believed, held that the presumption, if any, is rebuttable and that merely placing the document on record without proving the ceremony of due adoption could not be said to establish a valid adoption. The judge rightly noted that the factum of adoption must be proved in the same way as any other fact and that the evidence in support must be sufficient to satisfy the heavy burden resting upon a person who seeks to displace the natural succession by alleging an adoption., Viewed in the backdrop of the above legal principles, as Exhibit A9 Adoption Deed was registered, the presumption under Section 16 attached to it and it was for Kaliprasad to rebut that presumption. He did so more than sufficiently. The registration of Exhibit A9 Adoption Deed did not absolve the person asserting such adoption from proving that fact by cogent evidence, nor did it relieve the person contesting it from adducing evidence to the contrary. Various suspicious circumstances attached to the adoption ceremony of 18.04.1982 assume significance. It is an admitted fact that Venkubayamma ordinarily resided at Srikakulam, which is about 150 kilometres from Berhampur. Yet, PW 2 stated that she did not invite any of her relations from Srikakulam to attend the adoption ceremony at Berhampur. Normally, such occasions would not be kept secret, as an adoption is usually made with much pomp and celebration. The clandestine manner in which the alleged adoption is said to have taken place raises doubt, but this has not been adequately explained. No evidence was adduced to prove that relations between Venkubayamma and Kaliprasad, her grandson, had fallen out, nor does the document record any reasons why Venkubayamma was not happy with Kaliprasad, whose marriage she performed in February 1982, just a few months earlier., Pertinent to note, Pasupuleti Anasuya (PW 1), who was to play a pivotal role as the guardian of the adopted child in the event of Venkubayamma’s death, appears to have been absent at the adoption ceremony and no reason or explanation has been offered. She admitted that she was not present when the actual giving and taking of the child in adoption took place and that she is not seen in Exhibits A2 to A4 photographs. Significantly, she never stated in clear terms that she was actually present at that time. Her brothers (PWs 2 and 3) also did not vouch for her presence. If she was to play such an important role in the adopted child’s life, her absence at the ceremony and in the photographs speaks volumes., PW 4 (the photographer), PW 7 (the purohit) and PW 14 (an identifying witness) were examined in addition to the family members, viz., PWs 2 and 3, to speak of their actually seeing the giving and taking of the child in adoption, but their depositions are also not free from doubt. The photographs allegedly taken at the time of the adoption ceremony, viz., Exhibits A2 to A4, are not convincing. PW 12 and PW 14, who stated that the woman in the photographs was Venkubayamma, conceded that she did not look like a woman aged seventy years. The identifying witness (PW 14) himself stated that the woman in the photographs looked about forty‑five years old. Two of the tenants of Venkubayamma, viz., DW 2 and DW 3, said that the woman in the photographs was not Venkubayamma., Although the High Court opined that the woman in Exhibits A2 to A4 was not Venkubayamma because she was a woman of advanced age and it would be difficult for her to have dyed her hair at that age, that cannot be a deciding factor by itself. The issue is whether the dark‑haired woman in the photographs was Venkubayamma at all. Doubt arises not only on the count of hair colour but also on the age of the woman in the photographs, based on the witnesses’ depositions. PW 12 had stated that Venkubayamma was about seventy years of age in 1970, whereas Exhibits A9 and A10 record her age as seventy years in 1982. Either way, the woman in Exhibits A2 to A4 did not look close to those ages. In effect, there is no clinching evidence to prove that the woman in the photographs was, in fact, Venkubayamma., The actual giving and taking of the child in adoption, being an essential requisite under Section 11(vi) of the Act, we find that there is no convincing evidence of that act in the case on hand. Interestingly, there are no pictures of the actual giving and taking. In Exhibits A2 and A3, the purohit (PW 7) is seen standing or sitting behind the others, which cannot be taken as the ceremony of giving and taking, as he would have stood or sat in front of them, chanting mantras as per shastras. Exhibit A4 is a group photograph. Further, there are no photographs of the datta homam, though PW 7 claimed that he had performed the same. Even though it is no longer considered an essential ceremony, it is of significance when performed, and would have been captured. Strangely, although a professional photographer (PW 4) was engaged for the purpose of taking pictures at the adoption ceremony, he took only three photographs and no more. This parsimony is not explained. Moreover, PW 1 produced and marked Exhibit A8 receipt, supposedly issued by PW 4 to the temple, with no explanation as to how it came into her possession, which does not inspire confidence., The evidence of the purohit (PW 7), who is stated to have conducted the ceremonies, leads to doubt as to whether the adoption actually took place. The adoption ceremony is stated to have been performed at Sri Sri Raghunadha Swamy Temple at Bhapur in Berhampur, but according to PW 7, Raghunadha Swamy Temple is not even in Bhapur but in Chandramanipeta, and only Ramalingeswara Swamy and Mukteswara Swamy Temples are at Bhapur. Although this discrepancy is sought to be explained, the fact remains that there was no re‑examination of PW 7 to clarify this aspect., Exhibit A9 Adoption Deed is scribed in English but does not contain a recital that its contents were read over and explained in Telugu to the executant. No evidence has been led to show that Venkubayamma was conversant with the English language. Moreover, on the second page of Exhibit A9, Venkubayamma’s signature reads: ‘Moturu bayamma’ and, thereafter, the word ‘Venku’ was interjected above. Underneath that signature, the signature ‘Moturu Venkubayamma’ is again affixed. It has come on record that Venkubayamma was in the habit of signing in both English and Telugu. If so, it is strange that she would not have signed her own name correctly on the second page and would have left out ‘Venku’ altogether. The misspelling of ‘bayamma’ as ‘bayamma’ is also strange and significant., Exhibit A9 records the age of Venkubayamma as seventy years and states that she was desirous of taking a male child in adoption as she had no male issues. The document also records that the adoptive child would perform the annual shraddha ceremonies and offering of pinda and water, as her natural son, to her ancestors. Nalini Kanth was less than one year old when this adoption deed was executed, whereas the adoptive mother, according to the document, was seventy years old. It is strange that Venkubayamma would have expected this toddler to perform her obsequies after her death and other ceremonies for her ancestors. It is also difficult to believe that a woman of such advanced years would willingly take on the responsibility of caring for an infant at that age., Exhibit A9 Adoption Deed mentions that the adoption took place at Sri Sri Raghunadha Swamy Temple, but Exhibit A10 Will records that Venkubayamma adopted the child with the consent of his parents in the presence of relations at the house of his parents at Chandramanipeta, Berhampur. Therefore, according to the will, the adoption took place at the house of the natural parents, i.e., PW 2’s house, not at a temple. This contradiction between the two documents, which were drawn up within a short span of time, speaks for itself., On the above analysis, we are of the opinion that the adoption of Nalini Kanth by Venkubayamma on 18.04.1982 is not proved in accordance with law despite the registration of Exhibit A9 Adoption Deed dated 20.04.1982. The adoption itself is not believable, given the multitude of suspicious circumstances surrounding it. Consequently, Nalini Kanth cannot be treated as her heir by adoption. Further, Exhibit A10 Will dated 03.05.1982 was also not proved in accordance with law and does not create any right in her favour. In consequence, Nalini Kanth is not entitled to claim any right or share in Venkubayamma’s properties. The findings of the High Court to that effect, albeit for reasons altogether different, therefore do not warrant interference.
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Reportable Civil Appeal No 5308 of 2022 (Arising out of SLP (C) No 7772 of 2021) Deepika Singh Appellant versus Central Administrative Tribunal and Others Respondents. Dr Dhananjaya Y. Chandrachud, J. Leave granted., This appeal arises from a judgment dated 16 March 2021 of a Division Bench of the High Court of Punjab and Haryana., The appellant was, at the material time, working as Nursing Officer in the Post Graduate Institute of Medical Education and Research, Chandigarh since her appointment on 25 November 2005. On 18 February 2014, the appellant married Amir Singh. The spouse had been married previously; his former wife died on 16 February 2013. From his first marriage he has two children, a male child born on 1 February 2001 and a female child born on 3 March 2005. The appellant filed an application on 4 May 2015 requesting the authorities at PGIMER to enter the names of the two children born from the first marriage of her spouse in the official service record., The appellant had her first biological child on 4 June 2019. On 6 June 2019, she applied for maternity leave for the period from 27 June 2019 to 23 December 2019 in terms of Rule 43 of the Central Civil Services (Leave) Rules, 1972. The authorities at PGIMER sought clarification on 3 July 2019 regarding the fact that the spouse of the appellant had two surviving children from his first marriage. The appellant submitted a detailed reply on 24 July 2019. The request for maternity leave was rejected on 3 September 2019 on the ground that she had two surviving children and had availed child care leave earlier for the two children born from the first marriage of her spouse. Consequently, maternity leave for the child borne by her, considered as her third child, was found to be inadmissible under the Rules of 1972. By an office order dated 21 January 2020, her leave for the periods 30 May 2019 to 3 June 2019; 4 June 2019 to 27 October 2019; 27 October 2019 to 6 November 2019; and 7 November 2019 to 30 November 2019 was treated as earned leave, medical leave, half‑pay leave, and extraordinary leave respectively. The period of extraordinary leave was not counted towards increments in the scale of Rs. 9,300–34,800 under FR‑26(ii) of the Fundamental Rules, Volume I., Aggrieved by the decisions dated 3 September 2019 and 21 January 2020 of the administrative authorities at PGIMER, the appellant moved the Central Administrative Tribunal at its Chandigarh Bench in Original Application No 155 of 2020. By a judgment dated 29 January 2021, the Central Administrative Tribunal dismissed the Original Application, holding that maternity leave can be granted to a female government servant only if she has less than two surviving children. The Tribunal observed that the appellant had already shown the two children from her husband's first marriage as her children and had been availing benefits in respect of them, including child care leave. Therefore, for all practical purposes she had two surviving children and any child born to her now would be considered her third child, making her ineligible for maternity leave., The appellant moved the High Court of Punjab and Haryana in a writ petition under Article 226 of the Constitution, challenging the judgment of the Tribunal. By the impugned judgment and order dated 16 March 2021, the High Court dismissed the petition on the ground that there was no perversity or illegality in the judgment of the Central Administrative Tribunal. The High Court held that maternity leave can be granted only if the servant has less than two surviving children. Although the petitioner was not the biological mother of the two children born from her husband's first marriage, she could not deny that she was their mother after marrying Amir Singh. Consequently, she had two surviving children and had also availed child care leave for them, so any child born to her would be considered a third child., Child care leave is provided under Rule 43‑C of the Central Civil Services (Leave) Rules, 1972. Rule 43‑C provides that a woman government servant having minor children below the age of eighteen years and who has no earned leave at her credit may be granted child care leave by an authority competent to grant leave for a maximum period of two years (730 days) during the entire service for taking care of up to two children, whether for rearing or for attending to their needs such as examination or sickness. During the period of child care leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. Child care leave may be combined with leave of any other kind, may be availed in more than one spell, and shall not be debited against the leave account., The High Court opined that since the appellant had availed child care leave in respect of the biological children of her spouse born from his first marriage, she would be disentitled to the grant of maternity leave. After her marriage to Amir Singh, she was considered to have two surviving children and therefore did not meet the requirement of Rule 43(1) of having less than two surviving children for the purpose of being granted maternity leave., Notice was issued in these proceedings on 1 July 2021. In pursuance of the order issuing notice, the respondents entered appearance and filed a counter affidavit. We heard Mr Akshay Verma, learned counsel for the appellant, and Mr Sudarshan Rajan, learned counsel for the second, third and fourth respondents., The appellant contended that the maternity leave was sought on the birth of her first biological child and that the existence of two children of her spouse from an earlier marriage would not disentitle her under Rule 43 of the Rules of 1972. Counsel for the appellant submitted that although the appellant had availed child care leave in respect of her step‑children, that leave is distinct from maternity leave. The respondents argued that having taken child care leave for the two children born to the spouse from his first marriage, the appellant was not entitled to maternity leave for her own biological child, as she had two surviving children within the meaning of Rule 43 of the Rules of 1972., The significant issue for determination in the appeal turns on the interpretation of Rule 43 of the Central Civil Services (Leave) Rules, 1972. Rule 43 (Maternity Leave) provides that a female government servant (including an apprentice) with less than two surviving children may be granted maternity leave for a period of 180 days from the date of its commencement. During such period she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. Maternity leave not exceeding 45 days may also be granted irrespective of the number of surviving children in case of miscarriage or abortion on production of a medical certificate. The rule also allows maternity leave to be combined with other leave and provides that leave of the kind due and admissible, including commuted leave up to a maximum of two years, may be granted in continuation of maternity leave., The provisions of Rule 43(1) must be interpreted with a purposive construction. In KH Nazar v. Mathew K. Jacob, this Court noted that beneficial legislation must be given a liberal approach and that the court should discern the intention of the legislature and adopt a purposeful or functional interpretation. Similarly, Justice O. Chinnappa Reddy emphasized that statutes of liberal import such as social welfare legislation should not be subjected to a literal, Procrustean construction but should be read in light of their colour, content and context., In Surendra Kumar Verma v. Central Government Industrial Tribunal cum Labour Court, the Court observed that welfare statutes must receive a broad interpretation and that semantic luxuries are misplaced in the interpretation of ‘bread‑and‑butter’ statutes. The Court also stated that while interpreting a statute, the problem or mischief the statute was designed to remedy should be identified and a construction that suppresses the problem and advances the remedy should be adopted., In Badshah v. Urmila Badshah Godse, a two‑judge Bench ruled that courts must bridge the gap between law and society through purposive interpretation, especially when dealing with provisions aimed at achieving social justice under the Constitution., The Court has emphasized that social‑context adjudication, which goes beyond a purely adversarial approach, is essential for delivering equal justice to vulnerable groups. Professor Madhava Menon described this as the application of equality jurisprudence where courts must be sensitive to the inequalities of the parties and positively inclined to the weaker party., Law regulates relationships between people, reflects societal values, and must adapt to changing social realities. The role of the court is to understand the purpose of law in society and help the law achieve its purpose, recognizing that law is a living organism that must respond to social change., For guidance, the provisions of the Maternity Benefit Act, 1961 may be considered, although the Act does not apply to PGIMER as an establishment. Section 3(c) defines ‘delivery’ as the birth of a child. Section 5 provides the right to payment of maternity benefit at the rate of the average daily wage for the period of actual absence, which includes the day preceding delivery, the day of delivery and any period immediately following. It also stipulates a qualifying period of not less than eighty days of work in the twelve months preceding delivery, and a maximum entitlement of twenty‑six weeks, reduced to twelve weeks for a woman having two or more surviving children., These provisions aim to ensure that a woman’s absence due to childbirth does not hinder her entitlement to wages or leave. The Central Civil Services (Leave) Rules, 1972, are formulated to further the objects of Article 15 of the Constitution and other relevant constitutional rights. Article 15(3) empowers the State to enact beneficial provisions for women, while Article 21 recognises the right to privacy, dignity and bodily integrity, including the right to reproduction and child rearing. Article 42 enjoins the State to make provisions for just and humane conditions of work and for maternity relief., International conventions ratified by India, such as the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), require states to eliminate discrimination against women in employment, provide maternity leave with pay, and protect health and safety of women during pregnancy., Rule 43(1) of the Rules of 1972 contemplates a period of 180 days of maternity leave. Independent of maternity leave, a woman is also entitled to child care leave for taking care of her two eldest surviving children. Both constitute distinct entitlements. The facts of the present case indicate that the appellant’s spouse had a prior marriage that ended with the death of his wife, after which the appellant married him. The two biological children from his first marriage do not impinge upon the appellant’s entitlement to maternity leave for her sole biological child. The grant of child care leave to the appellant cannot be used to disentitle her to maternity leave under Rule 43 of the Rules of 1972., According to a time‑use survey conducted by the Organisation for Economic Co‑operation and Development, women in India spend up to 352 minutes per day on unpaid work, 57.5 % more than men, including childcare. In this context, support through benefits such as maternity leave, paternity leave or child care leave is essential., Unless a purposive interpretation is adopted, the object and intent of the grant of maternity leave would be defeated.
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The grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective., The predominant understanding of the concept of a family both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both the many circumstances which may lead to a change in one's familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the mother and the father) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination., The facts of the present case indicate that the structure of the appellant's family changed when she took on a parental role with respect to her spouse's biological children from his previous marriage. When the appellant applied to the Post Graduate Institute of Medical Education and Research (PGIMER) for maternity leave, PGIMER was faced with facts that the law may not have envisaged or adequately accounted for. When courts are confronted with such situations, they would do well to attempt to give effect to the purpose of the law in question rather than to prevent its application. For the above reasons, we hold that the appellant was entitled to the grant of maternity leave. The communication of the third respondent denying her the entitlement was contrary to the provisions of Rule 43. We accordingly set aside the impugned judgment of the High Court dated 16 March 2021 and the judgment of the Central Administrative Tribunal (CAT) dated 29 January 2021. The Original Application filed by the appellant shall in consequence stand allowed and the appellant shall be granted maternity leave under Rule 43 in terms of the present judgment. The benefits which are admissible to the appellant shall be released to her within a period of two months from the date of this order.
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Will the Minister of Law and Justice be pleased to state: (a) the number of vacancies in High Courts and the Supreme Court, and the number of proposals recommended against the said vacancies; (b) the duration of time since the Supreme Court Collegium recommended the said proposals; (c) whether the Government is aware of the delay in judicial appointments as well as transfers, and if so, the reasons for delay; and (d) the detailed reasons for non‑clearance of names of judges of various High Courts recommended by the Supreme Court Collegium? A statement is laid on the Table of the House in reply to parts (a) to (d) of Rajya Sabha Starred Question No. 50 due for answer on 07.12.2023 regarding vacancies in High Courts and the Supreme Court., As on 04.12.2023, against the sanctioned strength of 34 judges, the Supreme Court is functioning at full strength and there is no vacancy. Regarding the High Courts, against the sanctioned strength of 1,114 judges, 790 judges are working and 324 posts of judges are vacant in the various High Courts. As on 01.01.2023, 171 proposals received from High Court Collegiums were at different stages of processing. During the calendar year 2023, 121 fresh proposals were received. Out of the total 292 proposals for consideration during the current calendar year, 110 judges have been appointed and 60 recommendations were remitted to the High Courts on the advice of the Supreme Court Collegium. As on 04.12.2023, 122 proposals are at various stages of processing. Of these, 87 proposals were sent to the Supreme Court Collegium for advice, against which the Collegium has provided advice on 45 proposals that are at various stages of processing in the Government. Forty‑two proposals are under consideration with the Supreme Court Collegium. Thirty‑five fresh proposals received recently are being processed for seeking the advice of the Collegium. Recommendations are yet to be received from High Court Collegiums in respect of the remaining 198 vacancies., The appointment of judges of the constitutional courts is a continuous, integrated and collaborative process between the Executive and the Judiciary. It requires consultation and approval from various constitutional authorities both at the state and central level. Judges of the Supreme Court and High Courts are appointed under Articles 124, 217 and 224 of the Constitution of India and according to the procedure laid down in the Memorandum of Procedure prepared in 1998 pursuant to the Supreme Court judgment of 6 October 1993 (Second Judges case) read with the Advisory Opinion of 28 October 1998 (Third Judges case). As per the Memorandum of Procedure, initiation of a proposal for appointment of judges in the High Courts vests with the Chief Justice of the concerned High Court. The Chief Justice of the High Court is required to initiate the proposal to fill a vacancy of a High Court judge six months prior to the occurrence of the vacancy; however, this timeline is often not adhered to by the High Courts. All the names recommended by the High Court Collegium are sent with the views of the Government to the Supreme Court Collegium for advice. The Government, however, appoints only those persons as judges of High Courts who are recommended by the Collegium., According to the existing Memorandum of Procedure, the proposal for transfer of High Court judges is initiated by the Chief Justice of India in consultation with the four senior‑most puisne judges of the Supreme Court. The Memorandum further provides that the Chief Justice of India is also expected to take into account the views of the Chief Justice of the High Court from which the judge is to be transferred, as well as the Chief Justice of the High Court to which the transfer is to be effected, besides taking into account the views of one or more Supreme Court judges who are in a position to offer views. The transfer of chief justices and judges of High Courts is to be made in public interest, i.e., for promoting better administration of justice throughout the country. No timeline has been prescribed in the Memorandum of Procedure for transfer of judges from one High Court to another. As a result of the collaborative process between the Executive and the Judiciary, during the year 2022, 165 judges were appointed in various High Courts and eight transfers among High Courts were made (two chief justices and six judges), and during the year 2023, a total of 110 judges have been appointed in various High Courts and 34 judges have been transferred among various High Courts up to 04.12.2023.
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Date of decision: 19th April, 2023. Through: Miss Smita Maan, present in person, versus Through: Mister Rakesh Kumar, CGSC with Mister Sunil, Mister Giriraj Shrama and Mister Prince Roshan, Advocates with Mister Abhishek Khari, Advocate. Prathiba M. Singh, Judge (Oral)., This hearing has been done through hybrid mode., The present petition has been filed by Petitioner No. 1, Miss Smita Maan, and her minor son Vedant Singh Maan, Petitioner No. 2, seeking the deletion of the name of the father of the minor child, Petitioner No. 2, from his existing passport or, in the alternative, the petitioner seeks re‑issuance of a fresh passport to the minor child without mentioning the name of the father therein., The petitioner was married on 9th December, 2012 and conceived a child, Petitioner No. 2, from the said wedlock. However, the case of the petitioner is that the husband deserted her during the pregnancy itself, with effect from 19th August, 2013. The minor son was born on 19th March, 2014 and since then has been raised by the petitioner as a single parent. In terms of the extant Passport Manual and Regulations, in 2015 the petitioner applied for a passport for the minor son which was issued on 23rd September 2015 bearing number N3138881. In that passport the names of both the biological father and mother of the minor child were mentioned. The passport expired on 22nd September, 2020., In the meantime, the petitioner and her then husband entered into a settlement dated 6th February, 2019, in which the following terms and conditions were agreed upon: It is agreed between the parties that the petitioner (husband) shall pay a lump sum consideration of Rs. Nil to the respondent (wife) as full and final settlement (against child maintenance towards past, present and future, and petitioner’s past, present and future maintenance, permanent alimony, stridhan etc.) in the following manner: a) The petitioner (husband) will pay a sum of Rs. Nil in the form of demand draft to the respondent at the time of recording of statements of both parties before the Honourable Family Courts under the first motion proceedings; b) The petitioner (husband) shall pay Rs. Nil to the respondent at the time of recording of statements of both parties before the Honourable Family Court under the second motion proceedings as full and final settlement amount in the form of demand draft; the second motion petition shall be filed by both parties within 15 days of expiry of the mandatory cooling period of six months after completion of the first motion; the parties shall file an application for waiving of the mandatory cooling period after the first motion; c) It is further agreed that the petitioner (husband) shall pay Rs. Nil to the respondent at the time of quashing of FIR No. 46 2/18 under sections 498A, 406, 34 IPC, P.S. Vasant Kunj North in the Honourable Delhi High Court within 30 days after the second motion and the petitioner (husband) shall cooperate and sign all necessary affidavits and do the needful in quashing said FIR., It is agreed that the petitioner (husband) will not have any right, title, interest, claim etc. whatsoever over the properties of the petitioner (wife) after the completion of the present compromise agreement., It is agreed that the minor child, namely Vedant Singh, age five years, will be under the absolute and exclusive legal custody of the respondent (wife) and the petitioner (husband) shall have no visitation rights or any access to the child or any claim or right over the child now or in the future. The child shall carry the identity and surname of his mother and maternal grandparents. The respondent (wife) has given up all her claims, including stridhan, in the larger interest of the child., It is also agreed by the petitioner (husband) that he and his parents shall have no right, title, claim or interest in any manner in movable or immovable assets or properties which are held or may be held by the respondent (wife) and/or child now or in the future. The respondent (wife) alone shall have all rights to sign all documents, government or private, in relation to the child as a single parent., The respondent (wife) agrees that if at the time of attaining the age of majority or at any stage thereafter, the minor son Master Vedant Singh makes any claim over the immovable or movable assets and properties of the petitioner (husband), then the respondent (wife) undertakes unequivocally that she shall be fully liable and responsible for satisfying the entire claim of Vedant Singh and shall fully indemnify the petitioner (husband)., As per the above settlement, neither the petitioner nor the minor son were given any payment including alimony, maintenance, etc. The exclusive custody of the child was to be with the mother. The father of the child had agreed to have no visitation rights or access to the child or any claim over the child, in the present or in the near future. The minor child was also to carry the identity and surname of his mother and maternal grandparents. The mother also indemnified the father in respect of any future claims which the minor child may raise against his biological father. Thus, in effect the father severed all ties with the child., This settlement agreement was also approved by the Guardianship Court in GP No. 75/18 titled Arjun Singh Tokas v. Smita Maan, passed by the Principal Judge, Family Court, Patiala House Court on 6th February, 2019. The guardianship petition itself was disposed of as compromised. It is submitted that there is no challenge to the said order. Thereafter, the decree of divorce by mutual consent was also granted by the Principal Judge, Family Court, Patiala House Court in HMA Petition No. 470/19 with effect from 31st May, 2019 between the petitioner and her then husband., Post the grant of the divorce decree and the execution of the settlement agreement, various identity cards such as Aadhaar card and other documents have been issued to the minor child, Petitioner No. 2, with only the name of the mother., Since the passport of Petitioner No. 2 had expired on 22nd September, 2020, the petitioners applied for the re‑issuance of the passport. The name of the father of Petitioner No. 2 was reflected again in the re‑issued passport bearing number W8576410 and it is this action of the Passport Authorities which is under challenge in the present petition., The matter has been heard from time to time. The stand of the petitioner, who appears in person, is that since she is a single parent and the father has completely abandoned the child, the name of the father ought not to be insisted upon by the Passport Authorities for being mentioned in the child's passport. The petitioner relies upon the mutual settlement and the fact that the desertion took place even prior to the birth of the child., In terms of the Passport Manual applicable in 2015, the name of the father was mentioned in the previously issued passport. However, she currently relies upon Chapter 8, Clause 4.5.1 and Chapter 9, Clauses 4.1 and 4.3 of the Passport Manual, 2020 to argue that all these clauses make it clear that in the case of a single parent who is divorced or who has been deserted by the husband, the name of the father need not be mentioned. The same is also recognized by the Passport Manual itself., Reliance is also placed upon the following judgments: Shalu Nigam & Anr. v. The Regional Passport Officer & Anr., [2016 SCC OnLine Del 3023]; Prerna Katia v. Regional Passport Office Chandigarh and Anr., [2016 SCC OnLine P&H 14187]; Nancy Nithya v. Government of India, Writ Petition No. 22378/2022, decided on 15th December, 2022., On behalf of the respondent, initially there was some confusion as to the clauses of the Passport Manual which would be applicable. Thus, by order dated 28th March, 2023, the scanned copies of the manuals were directed to be filed and placed on record by the Passport Authorities., Today, Mister Rakesh Kumar, learned counsel, placed the relevant extracts of the manual on record. According to Mister Kumar, the clauses that would be applicable are clauses 4.1 and 4.3 of Chapter 9. Learned counsel submits that it is only in the case of single unwed parents that the name of the father need not be mentioned. In the case of married parents, clause 4.3 would be applicable and thus the name of the father would have to be mentioned in the passport. He also relies upon the Office Memorandum dated 28th February, 2023 which, according to him, clarifies that it is only in the case of an unwed parent that the name of the father need not be mentioned., Supreme Court of India has perused the relevant clauses of the Passport Manual, 2020 which are set out hereinbelow: 4.5. Name of parent can be deleted from the passport of the children consequent to divorce. 4.5.1. The online passport application form now requires the applicant to provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and also issue passports where the name of either the father or the mother is not required to be printed at the request of the applicant. Exclusion of father/mother name from passport of minor in single parent custody. 4.1. The online passport application form now permits that an applicant may provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and get passports issued where the name of either the father or the mother is not required to be printed at the request of the applicant. 4.2. In case of minor children of unwed single parent, the name of father or mother is not to be mentioned in the passport application and in the passport. In case of unwed parents submitting Appendix‑12, name of both the parents is to be mentioned in the application form and in the passport. 4.3. In case of minor children of married parents, the name of father/mother shall be furnished by the other single parent having the custody of the child, irrespective of the status of their marriage, such as divorced, divorce pending, separated or deserted, with or without visitation rights to the estranged parent. Children of divorced parents 4.4. Application from divorced parents for issue of passports to their minor children has to be processed with care and diligence. Whereas the divorce of parents does not result in severance of the relation between the child and the parent, unless the parent has legally disowned the child, the child's right to have a passport and travel abroad cannot be denied on such grounds. Children also have a fundamental right to travel and the other parent cannot wilfully prevent them from travelling abroad. These realities have been taken into account while processing applications for passports from children in the custody of single parents. 4.5. A court decree granting divorce would normally award custody of the minor child/children to either parent. The Passport Issuing Authority must ensure that the application for the minor's passport is entertained only from such parent who has been granted custody by the court. While doing so, the Passport Issuing Authority must also satisfy itself that the period of limitation for appeal against such decree has expired before issuing the passport. The Passport Issuing Authority must also ensure that if the other parent has visitation or other rights on the child as per court order, the consent of the other parent is also furnished. However, in rare cases where one of the parents will fully refuse to give consent or inordinately delays consent or objects in writing to the Passport Issuing Authority against issue of passports to his/her children residing with the other parent without any cogent reason, and thus denying the fundamental right of the children to travel, passports may be issued to the children after receipt of an affidavit in the form of Annexure ‘C’ obtained from the parent having custody of the children, stating that the other parent is wilfully denying or not granting permission for issue of passports to the children. The other parent should be informed in writing in advance by the Passport Issuing Authority of the proposed issue of passport to children at the request of the parent who is having custody of the children. It will then be the responsibility of the other parent to approach the courts for suitable redressal., A perusal of the above clauses would show that Chapter 8, clause 4.5.1 relates to the situation which would squarely be applicable in the present case i.e., where the name of the parent can be deleted consequent to divorce., According to Mister Rakesh Kumar, learned counsel, this clause ought not to have been retained in the manual when the new manual was published and only clause 4 of Chapter 9 ought to have been applicable. Either way, whether the clauses in Chapter 8 or Chapter 9 are applied, the same would reveal that the Passport Manual 2020 clearly recognizes several situations/conditions where the exclusion of the name of the father from the minor's passport is permissible. Clause 4.1 itself clearly enables a single parent to apply for a passport without mentioning the name of the other parent. Clause 4.2 carves out a specific category relating to unwed single parents. The language used in Clause 4.1 is merely single parent. Clause 4.3 clearly mentions that in the case of married parents the name of the father shall be furnished by the other single parent having custody of the child, irrespective of the status of the marriage i.e., divorce, divorce pending, separated etc. However, the mere furnishing of the name does not result in the conclusion that the name of the father has to be compulsorily mentioned. It would depend on the circumstances of each case., The Office Memorandum dated 28th February, 2023, issued by the Government of India, Ministry of External Affairs (Passport Services Division), reads: No. VI/401/01/17/2015(pt) Government of India Ministry of External Affairs (Passport Services Division) Patiala House Annexe, Tilak Marg, New Delhi, 28th February, 2023. The Regional Passport Officer, Regional Passport Office, Delhi, Sub: Clarification regarding issuance of passport with exclusion of father/mother name from passport of minor in single parent custody. Sir, please refer to your letter dated 17.1.2023 seeking clarification regarding issuance of passport with exclusion of father/mother name from passport of minor in single parent custody, due to ambiguity in provision of paragraph 4.1 & 4.3 of Chapter 9 of the Passport Manual 2020. 2. The matter has been examined in the Ministry in consultation with Department of Legal Affairs, Ministry of Law & Justice and the Department has opined that “No exhaustive definition of the term single parent may be given”. It is further informed that an inter‑ministerial committee was formed in 2016 to look into passport related issues. The committee had also examined the captioned subject and had concluded that in the following cases, it may be said that the child has a single parent (mother): (i) When the mother who is an Indian citizen claims that the biological father had no contact with the mother or the child after the child's birth; (ii) Where the child's father is either unknown, for example a child born after a rape, etc.; (iii) Where the biological father has terminated the relationship with the mother after conception/birth of the child. 3. In view of the above, the following may please be noted for compliance: (a) Paragraph 4.1 which enables single parents to apply for passports for their children where the name of either the father or the mother is not required to be printed, may be applied in the cases given below: (i) When the mother who is an Indian citizen claims that the biological father had no contact with the mother or the child after the child's birth; (ii) Where the child's father is either unknown, for example a child born after a rape, etc.; (iii) Where the biological father has terminated the relationship with the mother after conception/birth of the child; (iv) Cases where a biological married/unmarried father who is an Indian citizen claims that the biological mother has abandoned the child, the procedure as applicable for single mother would apply mutatis mutandis. (b) Provision of paragraph 4.1 is an enabling provision only and it has to be read in conjunction with provision of paragraph 4.3 which mandates furnishing of name of both the parents if the minor is born out of wedlock/marriage even in the cases where divorce has taken place with or without visitation rights to the estranged parent. Requests of issuance of passport with exclusion of father/mother name from passport of minor in single parent custody may be dealt with in accordance with paragraphs 4.1, 4.2 and 4.3 of Chapter 9 of the Passport Manual 2020, as the case may be. This issue with the approval of Joint Secretary, Yours Faithfully, (Vishwa Nath Goel) Deputy Secretary (PSP‑I)., Even a perusal of the Office Memorandum would show that in peculiar cases, where there is no contact of the father with the mother or the child, the name of the father need not be included in the passport. Mister Kumar’s submission that this Office Memorandum would only apply to single unwed parents may not be correct inasmuch as the language used in the Office Memorandum and in the Passport Manual are clear. Wherever the term single unwed parent is mentioned, the same has specifically been mentioned by the Passport Authorities. In other clauses the term ‘single parent’ is used., The fact that the name of the single parent can be mentioned without the name of the other parent is also recognized in the judgments cited above. The relevant portions of the same are set out below., In Shalu Nigam & Anr. v. The Regional Passport Officer & Anr. (supra) the petitioner was divorced and had raised her daughter as a single parent since birth. She contended that the biological father had abdicated all his responsibilities towards the daughter since her birth. Further, the entire record of the daughter including her educational certificates and Aadhaar card did not bear the name of the father. The petitioner sought the re‑issuance of her daughter's passport without the name of the biological father. The Court held that insisting upon the father's name violated the rights of the petitioner to determine her name and identity. The Court noted that the daughter's records did not bear the father's name and that the respondents had previously issued a passport in 2005 and 2011 without insisting upon the father's name., Mister Rajeev Kumar, learned counsel for the respondent, stated that the computerized passport application form has a column with regard to father's name under the heading ‘Family Details’. He stated that the form must be filled by the petitioner and relied upon Chapter 8, Clause IV (4.5) of the Passport Manual which reads: “IV. Parent name not to be deleted from passport consequent to divorce. 4.5 Request for deletion of parent name from passport due to parents' divorce should not be accepted. By virtue of the divorce decree, only the relation as wife and husband severs. The divorce decree does not result in severance of the relation between the child and the parent, unless the parent has legally disowned the child.”, Mister Amit Bansal, learned Amicus Curiae, pointed out that in Kavneet Kaur v. Regional Passport Office, W.P.(C) 3582/2014 decided on 31st July, 2014 a coordinate bench of this Court set aside the order of the Ministry of External Affairs, by which the petitioner's request for including the name of her step‑father as her father in the passport had been denied. The Court allowed the petition on the ground that the request was not in violation of any provision of the Passport Manual and that all relevant documents mentioned the name of her step‑father and any variance in the passport would create confusion. He also cited Ms. Teesta Chattoraj v. Union of India, LPA 357/2012 decided on 11th May, 2012, where a Division Bench held that no rights of a biological father can be recognized by any Court of law who has failed to discharge any responsibility towards his child., This Court is of the opinion that the respondents can insist upon the name of the biological father in the passport only if it is a requirement in law, such as standing instructions, manuals etc. In the absence of any provision making it mandatory to mention the name of one's biological father in the passport, the respondents cannot insist upon the same., In Ishmaan v. Regional Passport Office, W.P.(C) 5100/2010 decided on 21st February, 2011, a coordinate bench directed issuance of a passport to an applicant without mentioning her father's name on the ground that the instructions issued by the respondent itself permitted mentioning only the mother's name in the passport. The relevant portion of the order states: “3.2(a) Cases where: (i) the mother who is an Indian citizen claims that the biological father had no contact with the mother or the child after the child's birth; or (ii) the child's father is either unknown (for example a child born after a rape etc.) or (iii) has terminated the relationship with the mother after conception. In these cases, the Passport Issuing Authority should obtain an affidavit from the mother sworn before a magistrate. In these cases, the name of the father should be left blank and should not be entered in the passport without his written consent.”, The petitioner’s mother should now produce before the Regional Passport Officer an affidavit sworn by her before the magistrate in terms of Clause 3.2(a) within two weeks. The affidavit will also incorporate the necessary assertion that the petitioner’s mother will inform the Regional Passport Officer in the event she proposes to remarry. If such an affidavit is furnished, the Regional Passport Officer will ensure that the name of the father in the passport of the petitioner is left blank. The necessary correction in the passport be made within a further period of two weeks after the affidavit is furnished., In Priyanshi Chandra v. Regional Passport Office, W.P.(C) 845/2015, the Court held that the request of the applicant to issue a fresh passport without mentioning her father's name would be granted if she produces an affidavit in terms of Clause 3.2(a) of the instructions contained in the letter dated 21st April, 1999., The judgment of the Madras High Court in Mrs. B.S. Deepa offers no assistance to the respondents. The issue in that judgment was the validity of an adoption deed on the basis of which the petitioner sought a direction to mention the name of her adoptive father as her father's name in the passport. In the present case, the petitioner does not want to mention her father's name at all in her passport. The Madras High Court, keeping in view evolving societal norms relating to divorce, remarriage, single parents etc., directed the respondents to mention the name of the step‑father of the applicant on her passport instead of her biological father's name. Subsequently, the Madras High Court directed the Ministry of External Affairs to incorporate a suitable provision in the passport manual making it optional for the parties to indicate the names of one or more biological parents in the said form. Consequently, the respondents were essentially directed by the Madras High Court to reconsider their requirement of making it mandatory for the applicants to mention the name of their biological father in their application for issuance of passports., In Prerna Katia v. Regional Passport Office Chandigarh and Anr. (supra) the Punjab and Haryana High Court held: “After notice, the respondents have filed reply in which it is averred that the request of the petitioner was referred to the Ministry of External Affairs, New Delhi and was advised vide its letter dated 30.09.2015 to process her case in terms of the provisions of Paragraph 4.5 of Chapter 8 of the Passport Manual, 2010, which is reproduced as under: ‘IV. Parent name not to be deleted from passport consequent to divorce: Paragraph 4.5 – Request for deletion of parent name from passport due to parents' divorce should not be accepted.’”
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By virtue of the divorce decree, only the relation as wife and husband severs. The divorce decree does not result in severance of the relation between the child and the parent, unless the parent has legally disowned the child., Counsel for the petitioner has submitted that after the divorce on the basis of a settlement between the parties, in which they have also agreed that the daughter of the petitioner shall retain the surname of her mother instead of the surname of her father, the provisions of Paragraph 4.5 are not at all applicable and in this regard, reliance has been placed upon a decision of the Supreme Court of India in the case of ABC vs. The State (NCT of Delhi), 2015(3) Reportable Court Reporter (Civil) 766 and a judgment of the Delhi High Court in the case of Shalu Nigam and another vs. The Regional Passport Officer and another, W.P.(C) No.155 of 2016, decided on 17 May 2016., In this case, the husband of the petitioner has virtually disowned his daughter as in the settlement he did not ask for her custody or even visiting rights and agreed that the petitioner would continue to have custody of her minor daughter without any kind of his interference or his family members in future. He also paid a full and final amount towards maintenance of his daughter in one go while paying the maintenance/alimony to his wife/petitioner and agreed that after the settlement his daughter shall not be known as Addvita Garg but as Addvita Katia., From these facts and circumstances, it is very much clear that the husband of the petitioner has disowned his daughter legally by way of a settlement before the Supreme Court of India which has become part of the order passed in the appeal filed by the petitioner. Besides this, the decision of the Delhi High Court in Shalu Nigam's case (supra) deals with the provisions of Paragraph 4.5, in which it has been held that the respondents can insist upon the name of the biological father in the passport only if it is a requirement in law but in the absence of any provisions making it mandatory to mention the name of one's biological father in the passport, the respondents cannot insist upon the same. It is further held that the mother's name is sufficient in the passport in case of a single woman who can be a natural guardian and also a parent. In this regard, the Supreme Court of India had taken judicial notice of the fact that families of single parents are on the increase due to various reasons like unwed mothers, sex workers, surrogate mothers, rape survivors, children abandoned by father and also children born through IVF technology., Thus, keeping in view the aforesaid facts and circumstances especially the fact that the provision of Paragraph 4.5 referred to above rather helps the petitioner because it provides that the name of the parent can be deleted if the parent has legally disowned the child, which has been proved on record on the basis of the terms and conditions of the settlement and the observations made in Shalu Nigam's case (supra)., Consequently, the present petition is hereby allowed and the respondents are directed to make necessary correction in the surname of the daughter of the petitioner from Addvita Garg to Addvita Katia and also to delete the name of her biological father, that is Dhruv Garg, from her passport as Addvita Katia is now the daughter of a single parent i.e. her mother Prerna Katia. The necessary correction shall be carried out within a period of one month from the date of presentation of a certified copy of this order., In Nancy Nithya v. Government of India (supra) the following are extracted: The Rules are framed by the Central Government in terms of Section 24 of the Act. Therefore, they are part of the statute and are statutory. The Passport Manual are guidelines to issue a passport and are a solution to answer circumstances that would emerge, but cannot run counter to the statute, as they are not statutes. Therefore, the second respondent will have to consider the application of the petitioner in terms of the Rules and seek any document or clarification from the parent in terms of the Rules and not in terms of the Passport Manual., Therefore, it is necessary for the Central Government to bring in such amendment to the Rules, if it wants the situation emerged in the Manual to be tackled, failing which, rejecting passports relying on the Manual particularly in the case of passports of minors would be rendered unsustainable as they would suffer from want of tenability. Since the Rules themselves envisage the situation of the kind that has emerged in the case at hand, the reliance being placed on the Manual which runs counter to the Rules is without countenance., In all the three decisions quoted above, the biological father had in effect disowned the child and had severed all ties with the child. Irrespective of the fact that the applicable clauses in the Manual may be different, the spirit behind the said decisions is clear, i.e., that under certain circumstances the name of the biological father can be deleted and the surname can also be changed. Both the Passport Manual and the Official Memorandum relied upon by the respondents recognise that passports can be issued under varying circumstances without the name of the father. Such a relief ought to be considered, depending upon the factual position emerging in each case. No hard and fast rule can be applied. There are myriad situations in the case of matrimonial discord between parents, where the child's passport application may have to be considered by the authorities. Such situations include divorce with sole custody and mere visitation; divorce with joint custody and visitation; divorce with sole custody and no visitation; divorce with complete disowning of the child; divorce with some rights being given to the child; divorce between the couple but rights vesting in either side's grandparents; separation with divorce pending and visitation issues pending in Court; desertion by either parent; divorce or separation with conditions relating to subsequent marriages which may alter the relationship with the child; legal disowning of the child by either parent; situations where the couple are in different countries and an attempt is made to remove the child from a jurisdiction; the situations set out above are not exhaustive but are illustrative to show how the passport applications of minors may have to be considered and examined under varying circumstances. The Manual merely contemplates some of the situations and provides for certain mechanisms. However, the need for flexibility exists depending upon the fact situation. A thorough examination and understanding of court orders may also be required., In this backdrop, the Supreme Court of India notes that the facts of the present case are quite peculiar. As per the settlement which has been entered into by the biological father and the mother/petitioner No. 1, the father has given up all rights, if any, towards the child. There is no visitation. The child has also not been brought up by the father. Moreover, the fact that the minor son is also using the surname of the mother and the maternal grandparents, itself shows that the father does not wish to have any concern or relationship with the child. No maintenance or alimony has also been paid to the petitioners in this case. In fact, this would be a case where the father has completely deserted the child. Under such circumstances, this Court is of the opinion that Clause 4.5.1 of Chapter 8 and Clause 4.1 of Chapter 9 would clearly be applicable., In the unique and peculiar circumstances of this case, it is accordingly directed that the name of the father of petitioner No. 2 be deleted from the passport and the passport be re‑issued in favour of the minor child without the name of the father. Needless to add that this order shall not be treated as a precedent., The petitioner No. 1 along with her son may appear before the Regional Passport Office, Delhi and surrender the passport which has already been issued along with the certified copy of this order. Let the new passport be issued without the name of the father within one week thereafter., The petition is accordingly disposed of in these terms. All pending applications are also disposed of.
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Vacancies in Supreme Court and High Courts. Will the Minister of Law and Justice be pleased to state: the number of Judges appointed in Supreme Court and various High Courts in 2021; the number of collegium proposals pending with Government as of now; the number of collegium proposals returned by Government; and if so, the details thereof., In 2021, 9 Judges have been appointed in Supreme Court and 118 Judges have been appointed in various High Courts up to 29 November 2021. Government appoints only those persons as Judges of High Courts who are recommended by Supreme Court Collegium., The total number of High Court Collegium proposals which are at various stages of consideration between the Government and the Supreme Court Collegium as on 29 November 2021 is 164. The number of proposals which have been remitted or returned by the Government to the High Courts on the advice of the Supreme Court Collegium is 55 during the current year., Filling up of vacancies in the High Courts is a continuous, integrated and collaborative process between the Executive and the Judiciary. It requires consultation and approval from various constitutional authorities both at state and central level. While every effort is made to fill up the existing vacancies expeditiously, vacancies of Judges in High Courts keep arising on account of retirement, resignation or elevation of Judges and also due to increase in the strength of Judges., Details/Status of High Court Collegium Proposals: Total number of proposals received from High Court Collegiums 164; Number of proposals pending with Supreme Court Collegium 31; Number of proposals pending with Department of Justice which are yet to be sent to Supreme Court Collegium 75; Number of proposals recommended by Supreme Court Collegium and pending with Department of Justice 35; Number of proposals submitted to Prime Minister's Office 3; Number of proposals submitted to Ministry of Law and Justice 13; Number of proposals to be remitted to High Courts 7.
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Jyoti Jagtap, Daughter of Raghobha Shankar Jagtap, Indian inhabitant, aged 34 years, presently lodged at Byculla District Jail (Women), Class I, Byculla, Mumbai 400008; otherwise resident of Pulacha Mala, Belsar, Tehsil Purandar, Pune. Appellant (originally Accused No. 15) versus National Investigation Agency (FIR No. 1 of 2020) having its Mumbai office at 7th Floor, Cumballa Hill Telephone Exchange, Pedder Road, Mumbai 400026; and State of Maharashtra. Respondents: Mr. Mihir Desai, Senior Advocate on behalf of Kritika Agarwal, Advocate for Appellant; Mr. Sandesh Patil, Advocate and Special Public Prosecutor attached with Mr. Chintan Shah; Ms. Anusha Amin; Mr. Prithviraj Gole, Advocate for Respondent No. 1; Mr. S.S. Hulke, Assistant Public Prosecutor for the State; Mr. Pradip Bhale, Deputy Superintendent, National Investigation Agency, present., By this appeal, filed under Section 21(4) of the National Investigation Agency Act, 2008, the appellant has challenged the judgment and order dated 14 February 2022 passed by the Special Judge, Greater Bombay Court in National Investigation Agency Special Case No. 414 of 2020, rejecting the appellant's bail application., The appellant is arraigned as Accused No. 15 in FIR No. RC01/2020/NIA/MUM registered by the National Investigation Agency under Sections 120B, 115, 121, 121A, 124A, 153A, 505(1)(B) and 34 of the Indian Penal Code, 1860 and Sections 13, 16, 18, 18A, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967., On 31 December 2017, Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called Elgar Parishad in Shaniwarwada, Pune. It was decided to celebrate the 200th anniversary of the historic battle of Bhima Koregaon on 1 January 2018 by more than 200 to 250 social organisations under the banner of Bhima Koregaon Shaurya Din Prerana Abhiyan, led by Honourable Justice (Retired) P. B. Sawant and Honourable Justice (Retired) B. G. Kolse Patil. On 1 January 2018, mobs bearing saffron flags attacked persons travelling to and returning from Shaniwarwada, Pune; there was large‑scale violence and one youth lost his life., A Zero FIR was registered on 2 January 2018 at Pimpri Chinchwad Police Station, Pune by eyewitness Ms. Anita Salve under various provisions of the Indian Penal Code, 1860, the Arms Act, 1959, the Maharashtra Police Act, 1951 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, alleging involvement of Sambhaji Bhide, Milind Ekbote and their followers in the attack and violence. A statewide bandh was also called by several Dalit, OBC, Maratha and Muslim organisations against the attacks across Maharashtra thereafter., On 8 January 2018, the first informant Mr. Tushar Damgude registered FIR No. 4 of 2018 under the provisions of Sections 153A, 505(1)(b), 117 read with 34 of the Indian Penal Code, stating that the Elgar Parishad event organised at Shaniwarwada, Pune on 31 December 2017 was attended by him at around 2:00 p.m., during which there were a few speakers, compere, singers and other performers on stage. The speakers gave provocative speeches, and their performances were provocative in nature and had the effect of disrupting communal harmony. It is stated that the banned terrorist organisation Communist Party of India (Maoist) had an organisational role in the programme. The CPI (Maoist) wanted to infiltrate, inculcate and permeate its ideology amongst the masses, mostly impoverished classes and misguide them towards violent unconstitutional activities. According to complainant Sudhir Dhawale of Kabir Kala Manch, other members and activists had performed provocative street plays in different areas of Maharashtra earlier, made malicious speeches and spread false history, made disputable statements and objectionable slogans inciting passion and hatred to disrupt communal harmony, sang songs and participated in road dramas. On 31 December 2017, these activists performed skits and stage plays at the Elgar Parishad event, as a direct result of which there were incidents of violence, arson, stone‑pelting and the death of an innocent person near Bhima Koregaon, Pune on 1 January 2018., The houses of Rona Wilson (Accused No. 2), Surendra Gadling (Accused No. 3), Sudhir Dhawale (Accused No. 1), Harshali Potdar, Sagar Gorakhe (Accused No. 13), Deepak Dhengale, Ramesh Gaichor (Accused No. 14) and appellant Jyoti Jagtap (Accused No. 15) were searched by the police. Articles and material seized during the search were sent to the Forensic Science Laboratory, Pune. The analysis of seized electronic and digital articles confirmed that accused Surendra Gadling, Rona Wilson, Shoma Sen (Accused No. 4), Mahesh Raut (Accused No. 5), Comrade Milind Teltumbade (now deceased), Comrade Prakash Navin Ritupan Goswami (absconding), Comrade Manglu (absconding) and Comrade Deepu (absconding) were involved in the crime. During the investigation, the investigating officer invoked provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act., Accused Surendra Gadling, Rona Wilson, Shoma Sen, Mahesh Raut and Sudhir Dhawale were arrested on 6 June 2018. The residences of Shoma Sen and Mahesh Raut were searched, and police seized digital devices and other articles. The seized material showed involvement of additional accused, namely Varavara Rao (Accused No. 6), Arun Ferreira (Accused No. 8), Sudha Bharadwaj (Accused No. 9), Vernon Gonsalves (Accused No. 7), Anand Teltumbade (Accused No. 10), Stan Swamy (Accused No. 16) and Gautam Navlakha (Accused No. 11). Their names were added on 23 August 2018., Searches were conducted on 28 August 2018 at the residences and workplaces of Varavara Rao, Sudha Bharadwaj, Arun Ferreira, Gautam Navlakha, Stan Swamy and Vernon Gonsalves. Police arrested Varavara Rao, Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira and Vernon Gonsalves and placed them under house arrest. On 15 November 2018, Pune Police filed a charge sheet under Sections 153A, 505(1)(B), 117, 120B, 121, 121A, 124A and 34 of the Indian Penal Code and Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act against Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut, Rona Wilson and five absconding accused persons namely Kishan Da Prashanto Bos, Milind Teltumbde, Prakash Rituparn Goswami, Deepu and Manglu. Subsequently, on 21 February 2019, police filed a supplementary charge sheet under Sections 153A and 34 of the Indian Penal Code and Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act against Varavara Rao, Arun Ferreira, Vernon Gonsalves and Sudha Bharadwaj and one absconding accused, Ganapathy Mupalla Laxman Rao., On 19 February 2019, Pune police filed a supplementary charge sheet against four more arrested persons before the Sessions Court., On 24 January 2020, the Under Secretary to the Government, Ministry of Home Affairs, New Delhi, directed the National Investigation Agency to take up the investigation of FIR No. 4/2018 of Vishrambaug Police Station. The NIA re‑registered FIR RC‑01/2020/NIA/Mumbai under Sections 153A, 505(1)(b), 117, 34 of the Indian Penal Code and Sections 13, 16, 18, 18B, 20 and 39 of the Unlawful Activities (Prevention) Act on 24 January 2020., The appellant was arrested on 8 September 2020., The appellant applied for bail by filing Criminal Application No. 5 of 2021 in the National Investigation Agency Special Court. The appellant contended that the prosecution case against her primarily related to offences punishable under Sections 38 and 39 of the Unlawful Activities (Prevention) Act and that no incriminating material was found to link her with the banned Communist Party of India (Maoist), a terrorist organisation, or to show support for the terrorist organisation. It was also contended that there was no material to suggest that the appellant was involved in any conspiracy to overthrow the government. The appellant claimed that the trial would take time to conclude and therefore prayed for release on bail. The National Investigation Agency opposed the application, claiming that there is evidence against the appellant and all co‑accused having a link with members of the banned organisation Communist Party of India (Maoist) and that they were all active members in its overt and unconstitutional activities. The NIA further contended that the appellant had received arms, weapons and explosives training with the banned organisation Communist Party of India (Maoist) in the past and therefore should not be released on bail., The learned Special Judge rejected the bail application by the impugned judgment and order dated 14 February 2022. Hence, the appellant is before this Court in appeal. Respondent No. 1, the National Investigation Agency, has filed an affidavit in reply dated 17 August 2022 and has placed a compilation of relevant documents from the charge sheet running into 134 pages., We have heard Mr. Mihir Desai, learned Senior Advocate appearing for the appellant, and Mr. Sandesh Patil, Special Public Prosecutor for Respondent No. 1, National Investigation Agency, and Mr. S. S. Hulke, learned Assistant Public Prosecutor for the State of Maharashtra, and with their assistance perused the entire record., Mr. Mihir Desai, learned Senior Advocate appearing on behalf of the appellant, made the following submissions: that there are four specific grounds indicting involvement of the appellant put forth by the prosecution, namely (a) the appellant was part of the organising committee for the Elgar Parishad and attended organisational meetings prior to the event date; (b) on the date of the event the appellant participated, performed and made provocative slogans and thus was involved in a larger conspiracy to unsettle the democratically established government and spread communal disharmony; (c) the appellant's provocative acts on the date of the event led to violence as alleged in the FIR on the following day; and (d) the appellant had received arms training in 2011 and attended the camp conducted by co‑accused and members of the banned Communist Party of India (Maoist), a terrorist organisation., He submitted a consolidated argument with respect to the first three grounds relating to the Elgar Parishad event. He stated that the event was organized by more than 200 to 250 social organisations and that thirteen preliminary meetings were held for organising the event prior to its date, of which the appellant participated in four meetings on 24 September 2017 at Dadar, 2 October 2017 at Pune, 12 November 2017 at Aurangabad and 23 November 2017 at Aurangabad. The invitation card for organising and inviting people to the event was signed by more than 100 persons, the appellant being one of them, and only fifteen persons from the entire organisational team have been proceeded against by filing FIRs. Regarding the indictment of the appellant for making provocative statements, the prosecution relied on three statements: those of Mr. Kishor Kamble dated 11 June 2018, Mr. Datta Pole dated 12 June 2018 and Dr. Sangram Bamne (also known as Sangram Maurya) dated 24 September 2020. However, examination of all three statements reveals that none specifically mention or point to any provocative act or statement made by the appellant during the event. The report dated 1 January 2018 prepared by the Senior Police Inspector, Vishrambaug Police Station and submitted to the Deputy Commissioner of Police, Pune City, merely states that the appellant's participation was restricted to shouting slogans and performing in the skit/play with several other participants during the event and does not directly attribute any provocative role to the appellant. There is no recorded statement that directly indicts the appellant's role as being provocative in nature and leading to violence on the following day after the event. The appellant's name did not appear in the FIR registered on 2 January 2018., Regarding the allegation that the appellant was indicted on the basis of her visit to the forest in 2011 when she was 24 years old, he submitted that the prosecution relied on two statements dated 16 August 2020 and 17 August 2018 given by a witness under Sections 161 and 164 of the Criminal Procedure Code. The statement under Section 161 dated 16 August 2020 mentions the appellant carrying arms, whereas the second statement under Section 164 is silent about the appellant's role or name. The prosecution further relied on four statements dated 2 November 2018, 23 December 2018, 24 August 2020 and 25 August 2020 given by another witness under Sections 161 (first two statements) and 164 (later two statements) of the Criminal Procedure Code. Of these four statements, the two under Section 161 do not mention the appellant's name, while the two under Section 164 mention the presence of the appellant in the forest during her visit in 2011. He submitted that, even assuming the appellant visited the forest in 2011, it was merely the exuberance of her youth and nothing more should be inferred to link her visit to the present allegations in the FIR. On the basis of these three statements mentioning the appellant's presence in the forest, she cannot be linked to the banned Communist Party of India (Maoist) terrorist organisation., The prosecution registered the FIR on 8 January 2018, whereas the appellant was arrested on 8 September 2020, i.e., after a period of more than two years and nine months. During this period the appellant was always available and, despite two raids for recovery and seizure of incriminating material from the appellant's house on 17 April 2018 and 12 September 2020, no incriminating material whatsoever was recovered, whereas for the other accused persons, substantial incriminating material was recovered during raids on their respective houses., It is alleged by the prosecution that Kabir Kala Manch is the frontal organisation of the Communist Party of India (Maoist) without any basis. The prosecution acknowledged that the CPI (Maoist) has been notified as a terrorist organisation in the first schedule to the Unlawful Activities (Prevention) Act under entry No. 34 since 22 June 2009. In this respect, the prosecution relied upon two statements of a witness under Section 161 of the Criminal Procedure Code dated 31 August 2020, wherein it is stated that Kabir Kala Manch is the front of the CPI (Maoist), and another statement under Section 164 of the Criminal Procedure Code dated 3 September 2020, wherein it is stated that Kabir Kala Manch participated in the Elgar Parishad meeting. Apart from these statements, there is no other material to show a nexus between Kabir Kala Manch and the CPI (Maoist), and both statements are wholly unsubstantiated., The prosecution has relied upon the contents of one letter dated 2 February 2018 addressed by Comrade Rona on the subject of the success of the Elgar Parishad; however, reading the contents of the said letter does not in any way involve or incriminate the appellant., In total there are sixteen accused in the Bhima Koregaon (Elgar Parishad) case and the appellant is Accused No. 15. The other accused have been charged on the basis of substantial recovery of incriminating material from their mobile phones, e‑mails, computers, laptops, printed material and books, whereas in the appellant's case there is no such recovery whatsoever, and hence the appellant deserves to be released on bail., Mr. Desai, in support of his submissions, relied upon the following decisions: National Investigation Agency v. Zahoor Ahmad Shah Watali; Union of India v. K. A. Najeeb; Sudesh Kedia v. Union of India; Dhan Singh v. Union of India; The State of Maharashtra v. Iqbal Ahmed; Iqbal Ahmed Kabir Ahmed v. State of Maharashtra; Thwaha Fasal v. Union of India; Indra Das v. State of Assam; The State of Maharashtra v. Konnath Muralidharan; Konnath Murlidharan v. State of Maharashtra; Sidhique Kappan v. State of Uttar Pradesh; Balwant Singh & Anr. v. State of Punjab; Bhagwan Swarup Lal Bishan Lal & Ors. v. State of Maharashtra; Lennart Schüssler & Anr. v. Director of Enforcement & Anr.; extracts of Kehar Singh & Ors. v. State (Delhi Administration); extract of State v. Nalini & Ors.; Amit Sahni (Saheen Bagh) v. Commissioner of Police; and Kartar Singh v. State of Punjab., We do not find it necessary to reproduce the submissions made in respect of all the aforesaid judgments to avoid repetition. We have dealt with four judgments which we find essential. The thrust of Mr. Desai's submissions, while referring to the ratios of those judgments, is to persuade us to consider the settled legal position about issues to be considered for deciding an application for bail on the basis of the following parameters: whether there is any prima facie or reasonable ground to believe that the accused committed the offence; the nature and gravity of the charge; the severity of punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; the character, behaviour, means, position and standing of the accused; the likelihood of the offence being repeated; reasonable apprehension of witnesses being tampered with; the danger of justice being thwarted by the grant of bail; and, when it comes to offences punishable under special enactments such as the Unlawful Activities (Prevention) Act, 1967, additional considerations are required in view of the special provisions contained in Section 43‑D of the Unlawful Activities (Prevention) Act, inserted by Act 35 of 2008 with effect from 31 December 2008., He submitted that while considering the prayer for bail in relation to offences under the Unlawful Activities (Prevention) Act and special enactments, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offences; that there are reasonable grounds for believing that the allegations and accusations against such person are prima facie true; and that such recording of satisfaction would mean that the material or evidence recovered, seized and collated by the investigating agency in reference to the accusation against the accused in the FIR must prevail until contradicted or disproved by other evidence, and that such material on its face shows complicity of the accused in the commission of the stated offence. He drew our attention to paragraph numbers 23 and 24 of the judgment in the case of National Investigation Agency v. Zahoor Ahmed Shah Watali (first supra), which is settled law, and urged us to record a finding on the basis of broad probabilities regarding involvement of the appellant in the crime, which according to him is far from remote. Paragraph 23 reads: “By virtue of the proviso to sub‑section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. … The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well.” Paragraph 24 reads: “There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is prima facie true. By its very nature, the expression prima facie true would mean that the materials/evidence collated by the investigating agency … must prevail until contradicted … and on the face of it, shows the complicity of such accused in the commission of the stated offence.”, In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in the case of Ranjitsing Brahmajeetsing Sharma (supra), wherein a three‑Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paragraphs 36 to 38, the Court observed thus: “36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? … 37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose. 38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. …”, The Court further observed in paragraphs 44 to 48: “44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. … 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. … 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. … 47. In Kalyan Chandra Sarkar v. Rajesh Ranjan this Court observed … 48. In Jayendra Saraswathi Swamigal v. State of Tamil Nadu this Court observed …”, He has referred to the observations of the Supreme Court made in paragraph No.20 in the case of Union of India v. K. N. Najeeb (second supra) to highlight that the provision of Section 43‑D(5) of the Unlawful Activities (Prevention) Act when considered for enlargement on bail is comparatively less stringent than the provision of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, wherein the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail, whereas there is no such pre‑condition under the Unlawful Activities (Prevention) Act., He has next referred to and relied upon paragraph numbers 17 and 18 in the case of Dhan Singh v. Union of India and other companion matters (third supra) decided by a coordinate Bench of this Court, which has explained and highlighted the interpretation of the words prima facie coupled with the word true and the exercise which the Court needs to undertake in this context on the basis of material on record, as also the interpretation of the words reasonable ground as appearing in Section 43‑D(5) of the Unlawful Activities (Prevention) Act.
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We find it useful to reproduce paragraph No.17 and 18 for reference which read thus: When the word \prima facie\ is coupled with the word \true\, it implies that the court has to undertake an exercise of cross‑checking the truthfulness of the allegations made in the complaint, on the basis of the materials on record. If the court finds, on such analysis, that the accusations are inherently improbable or wholly unbelievable, it may be difficult to say that a case, which is \prima facie true\, has been made out. In doing this exercise, the court has no liberty to come to a conclusion, which may virtually amount to an acquittal of the accused. Mere formation of opinion by the court, on the basis of the material placed before it, is sufficient. In the matter of Jayanta Kumar Ghosh (supra) the Hon’ble Division Bench of Gauhati High Court interpreted provisions of Section 41D(5) of the National Investigation Agency Act and exhaustively dealt with meaning of words \prima facie, true, and reasonable ground\. Paragraphs 69, 74, 78 and 82 of the said judgment can be quoted with advantage. \69 From the meaning, attributed to the word \prima facie\, by various dictionaries, as indicated above, and the observations, made by the Supreme Court of India, in its decisions, in The Management of the Bangalore Woollen Cotton and Silk Mills, (supra) what clearly follows is that prima facie is a Latin word, which means, at first sight or glance or on its face and in common law it is referred to as \\\the first piece of evidence of fact\\\ i.e., considered true unless revoked or contradicted.\ \74 The term \\\true\\\ would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. The term \\\false\\\ again would mean a proposition, the existence of which cannot be a reality. While arriving at a finding whether there are reasonable grounds for believing that the accusation against the accused is prima facie true or false, the court can only look into the materials collected during investigation, and on its bare perusal should come to a finding that the accusation is inherently improbable, however, while so arriving at a finding the court does not have the liberty to come to a conclusion which may virtually amount to an acquittal of the accused.\ \78 The expression, \\\reasonable ground\\\, means something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offence(s) alleged. Under Section 437 of the Criminal Procedure Code an accused is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence, which is punishable with death or imprisonment for life. Under Section 437 of the Criminal Procedure Code, the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to believe that the accused is guilty. [See Union of India v. Tharmssharasi, (1995) 4 SCC 190 and Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798.]\ \82 In short, thus, while the Special Court constituted under the National Investigation Agency Act does not suffer from the limitations, which the TADA courts had by virtue of the provisions of Section 20(8), read with Section 20(9) thereof, the fact remains that the Special Court, not being a court of Sessions or of the High Court, cannot exercise the powers of the Court of Sessions or High Court under Section 439 of the Criminal Procedure Code. Hence, while dealing with the scheduled offences, covered by the proviso to sub‑section (5) of Section 43‑D, the Special Court constituted under the National Investigation Agency Act would suffer not only from the limitations imposed by clauses (i) and (ii) of sub‑section (1) of Section 437, but also by the proviso to sub‑section (5) of Section 43‑D of the Unlawful Activities (Prevention) Act, 1967, wherever the provisions contained in the proviso to Section 43‑D(5) would be applicable., In the matter of Bharat Mohan Rateshwar (supra) and Ashrindaw Warisa @ Partha Warisa (supra) while reiterating the similar position of the law in this regard, it is reiterated that in a case investigated by the agency, if the Special Court forms an opinion that there are reasonable grounds for believing that the accused has committed an offence punishable with death or imprisonment for life, the Special Court would have no jurisdiction to grant bail., In this context we also refer to the decision of the Supreme Court of India in the case of Thwaha Fasal (seventh supra), paragraphs 22 and 23 of which state: 22. After considering the law laid down by this Court in various decisions including the decision in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, in paragraphs 24 and 25 it was held thus: 24. A priori, the exercise to be undertaken by the Court at this stage of giving reasons for grant or non‑grant of bail is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. 25. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 of the Criminal Procedure Code are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16‑8‑2017. Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 of the Criminal Procedure Code, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge‑sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge‑sheet (report under Section 173 of the Criminal Procedure Code) and other material gathered by the investigating agency during investigation., Therefore, while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the Unlawful Activities (Prevention) Act, 1967 have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub‑section (5) of Section 43‑D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is., He therefore submitted that considering the aforementioned settled law, this Court is merely expected to record its finding on the basis of broad probabilities regarding involvement of the Appellant and record its opinion that in the present case there is no material brought on record by prosecution to indict the Appellant and show her having any nexus with the banned Communist Party of India (Marxist) as also her role and involvement in the 'Elgar Parishad' event held on 31‑12‑2017 which led to public violence on the following day. In respect of her role in the alleged conspiracy he has drawn our attention to the broad principles governing the law of conspiracy enunciated by the Supreme Court of India in the case of State v. Nalini (sixteenth supra) and submitted that in so far as the Appellant is concerned, the evidence collated and recovered by prosecution does not make out a case for conspiracy against the Appellant. That there is no nexus of the Appellant or meeting of minds of the Appellant with any of the other co‑accused which can be proved through the material recovered and seized by prosecution. That the ingredients stipulated by the Supreme Court are clearly missing in so far as the Appellant is concerned. That mere participation and shouting slogans in the Elgar Parishad event by itself does not amount to conspiracy and she does not get linked to any terrorist act. That mere participation in the event where there were other participants who had also shouted the same slogans and participated in the skit/play would not amount to any incriminating act done by her to destabilize the country as prima facie there is no material evidence produced by prosecution to allege that the Appellant is a part of a larger conspiracy of any terrorist or organisation act and therefore her indictment under the stringent provisions of Sections 16 and 18 of the Unlawful Activities (Prevention) Act is completely unwarranted. That at the highest the Appellant can be charged under the provisions of Sections 38 and 39 of the said Act. That application of the provisions of Section 15 of the said Act is a grave and serious offence and it will have to be shown on the basis of incriminating material and evidence that the Appellant was linked to the act of terror or conspiracy. That participation in the Elgar Parishad event of 31‑12‑2017 cannot be deemed to be an act of terror. That in fact, the participants in the Elgar Parishad event had pledged their support to the Constitution of India at the end of the program. That the Appellant has been incarcerated in jail for more than two years after her arrest. That according to prosecution there are more than 250 witnesses in the present case and therefore it will be a lengthy trial and hence in view thereof the Appellant deserves to be enlarged on bail., PER‑CONTRA, Mr. Sandesh Patil, learned Advocate appearing for Respondent No.1 – National Investigation Agency has opposed the appeal and made the following submissions: 7.1. That the Appellant is an active member of the Communist Party of India (Maoist), a banned terrorist organization under Entry/Serial No.34 in the first schedule to the Unlawful Activities (Prevention) Act. That the Appellant is an active member of Kabir Kala Manch and on the date of the event i.e. 31‑12‑2017, the Appellant was specifically involved in raising provocative slogans through the performances by Kabir Kala Manch members which led to disturbing communal harmony. 7.2. That they performed a skit/stage play in the Elgar Parishad event, as a result of which there were incidents of violence, arson, stone‑pelting and death of an innocent person, near Bhima Koregaon, Pune on 01‑01‑2018. 7.3. That the prosecution has recovered and seized incriminating documents from the Appellant in the present crime and on its basis it is proven that the Appellant is a member of the banned Communist Party of India (Maoist) which made inroads into the Elgar Parishad movement with the ulterior motive to destabilize the secular fabric of the country; that one of the important documents seized from the accused is a document titled “Special Social Sections and Nationalities‑Our Tactics”, wherein it is mentioned that women, Dalits, Adivasis and religious minorities are the most important of the social sections to be taken cognisance of by the party of the proletariat leading the revolution in the concrete conditions prevailing in India. All these sections have special problems of their own and specific types of extra‑economic oppression apart from the class‑oppression. We have to pay due attention to solve their special problem and to chalk out special tasks to mobilise them effectively into the revolutionary movement. Towards this end, we have to not only bring these sections into class organisations along with other oppressed masses, but also evolve the necessary forms of organisations and form of struggle for the widest mobilisation of these sections on their special problems both on a short term and long‑term basis. Broader joint fronts too should be formed wherever and whenever necessary to address the specific grievances. That it is evident from this seizure that the Communist Party of India (Maoist) made inroads into the Elgar Parishad event according to a well deliberated tactical measure. That other arrested accused viz; Sudhir Dhawale and others including the Appellant formed a broader joint united front on similar lines which is evident from one other letter recovered from one Narmadakka, Central Committee Member of the Communist Party of India (Maoist), who stands chargesheeted and is accused in another case., Next Mr. Patil referred to a compilation of the relevant documents against the Appellant forming part of the charge sheet filed by the prosecution in the present case. Considering that the charge sheet runs into several thousand pages, in so far as the present appeal is concerned, he collated the relevant pages/incriminating material to highlight and outline the role of the Appellant. He has drawn our attention to the letter dated July 2017 written in Telugu language and its true translation which forms part of the charge sheet. This letter is page No.106 of the compilation. It has been addressed by one Sridhar to Commissioner Sunil and in the contents thereof, accused No.1 Sudhir Dhawale and his role as leader in Maharashtra is prominently named., Next he has referred to paragraph No.17.22 of the charge sheet on page 113 of the Memorandum of Appeal wherein it is stated as under: 17.22. During the investigation, it is revealed that Kabir Kala Manch (KKM) is a frontal organization of the Communist Party of India (Maoist). KKM was formed somewhere in 2002 and indulged in street plays, cultural activities, poetry reading etc. The accused in instant crime namely Sagar Gorkhe and Ramesh Gaichor have been associated with KKM since 2003. In 2005, the Communist Party of India (Maoist) systematically entered KKM in such a way that the operation goes unnoticed. Further, members of KKM are systematically furthering the ideology of the Communist Party of India (Maoist) since 2005 which has also been revealed in ATS PS Mumbai CR No.19/2011 registered under Sections 387, 419, 465, 468, 120B of the Indian Penal Code, Section 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40 of the Unlawful Activities (Prevention) Act., Next, to substantiate the multiple charges that the Appellant was actively involved in organising the Elgar Parishad event; that the Appellant was actively involved with other co‑accused and members of KKM; that KKM is the frontal organization of the banned terrorist organization Communist Party of India (Maoist); that the Appellant had received arms/weapons training in the forest camp of the Communist Party of India (Maoist) in the past, he has referred to the following incriminating material: (i) Statement given by KW‑3 under Section 164 of the Criminal Procedure Code dated 17‑08‑2020; (ii) Statement given by KW‑4 recorded under Section 161 of the Criminal Procedure Code dated 24‑08‑2020; (iii) House search panchnama of the raid conducted in the house of the Appellant on 12‑09‑2020; (iv) Statement of Kishor Madhukar Kamble recorded under Section 164 dated 11‑06‑2018; (v) Statement of Datta Pol recorded under Section 164 dated 12‑06‑2018; (vi) Statement of Ulka Mahajan recorded under Section 164 dated 29‑09‑2020; (vii) Statement of Dr. Sangram Bamne recorded under Section 164 dated 24‑09‑2020; (viii) Pamphlet of Elgar Parishad Meeting dated 01‑01‑2018; (ix) Report of meeting held at Dadar, Mumbai on 24‑09‑2017; and (x) Judgment dated 19‑09‑2022 passed in Criminal Appeal No. 351/2022 in the case of Hany Babu (Accused No. 12) v. National Investigation Agency and Another in respect of the same Special Case No. 414 of 2022., Mr. Patil has taken us through the contents of the aforesaid material and contended that the role of the Appellant cannot be segregated separately as argued by the Appellant. He submitted that the material recovered and seized from the Appellant as well as other co‑accused in the present case clearly leads to a larger conspiracy and design wherein the Appellant is actively involved in the activities of KKM since long. That KKM is the frontal organization of the banned Communist Party of India (Maoist), a terrorist organization under the Unlawful Activities (Prevention) Act. He submitted that the Appellant has a direct nexus with wanted accused and members of the Communist Party of India (Maoist) who are co‑accused in the present crime. The offences invoked against the Appellant carry maximum life or death penalty punishment. He submitted that the provisions of Section 43‑D(5) of the Unlawful Activities (Prevention) Act would require this Court to proceed on the basis of the material collected during investigation. He submitted that investigation in the present case has revealed that the Elgar Parishad event was used to establish underground contacts with the banned terrorist organization Communist Party of India (Maoist) through its activists, the Appellant being one of them. He submitted that the Appellant played a major role in organizing the Elgar Parishad event which is evident from the material seized and thus is involved in directly propagating activities of the Communist Party of India (Maoist). Hence, he has submitted that there is no infirmity in the order passed by the learned Special Judge in rejecting the bail application of the Appellant and the present appeal be dismissed., At this stage it would be apposite to refer to the provision of Section 43‑D(5) of the Unlawful Activities (Prevention) Act, which is the relevant provision for the decision of the present case. It reads thus: 43‑D. Modified application of certain provisions of the Code— (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Criminal Procedure Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub‑section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail., As alluded to herein above, the Supreme Court of India in the case of Watali (first supra) has held that at this stage, as is the Appellant’s case, it is not the duty of the Court to weigh the evidence meticulously but to arrive at a finding based on broad probabilities. We have carefully perused the material available on record. Hence in order to record our findings based on broad probabilities regarding involvement of the Appellant in the present crime, we would now propose to consider the material relied upon by the prosecution against the Appellant. Prima facie, after going through the material on record, we find that there are reasonable grounds for believing that the allegations/accusations against the Appellant are true. However we hasten to clarify and elaborate our reasons for the same, based on broad probabilities. Our observations have been made in the context of the provisions of Section 43‑D(5) of the Unlawful Activities (Prevention) Act., We now propose to deal with the material pressed by Respondent No.1 – National Investigation Agency before us against the Appellant and her role in the present crime on the basis of the documents referred to in paragraph 7.4 herein above., Statement recorded on 17‑08‑2020 of KW‑3 by the National Investigation Agency under Section 164 of the Criminal Procedure Code (appearing on page 213 of the Memorandum of Appeal) states that between 2010 and 2015, the Appellant was actively involved in working with the Communist Party of India (Maoist), the banned terrorist organization. The witness has stated that in the year 2011 after arrest of Angela i.e. wife of Central Committee Member Milind Teltumbde, the naxalites working under the banner of Kabir Kala Manch in Pune urban region felt leaderless and hence for seeking guidance, all naxalite members working under the banner of Kabir Kala Manch visited Korchi Area Committee Jungle to meet Milind Teltumbde. The witness has stated that these naxalite members comprised of Sachin Mali, Sheetal Sathye, Sagar Gorkhe (Accused No. 13), Ramesh Gaichor (Accused No. 14), Jyoti Jagtap (Appellant) and others. After receiving directions and orders from Central Committee Member Milind Teltumbde, they returned. This statement establishes the presence of the Appellant in the meeting with the naxalites in 2011. It is pertinent to note that KW‑3 has stated that in the year 2012, another meeting was held in Korchi Area Committee Jungle which was attended by Sagar Gorkhe, Ramesh Gaichor and Rupali Jadhav since Sachin Mali and Sheetal Sathe had left the party and in this meeting directions were sought for running the party in western Maharashtra by them. However this meeting was not attended by the Appellant. The reason to mention this meeting is because the Appellant is an active member of Kabir Kala Manch in Pune and Western Maharashtra and close to co‑accused Ramesh Gaichor and Sagar Gorkhe., Statement recorded on 24‑08‑2020 of KW‑4 by the National Investigation Agency under Section 164 of the Criminal Procedure Code (appearing on page 223 of the Memorandum of Appeal) states that the Appellant along with urban naxal members namely Smt. Manju Vijay, Arun Ferreira for Mumbai area, Angela wife of Milind Teltumbde from Pune area, members of Kabir Kala Manch namely Ramesh Gaichor, Sagar Gorkhe, Jyoti Jagtap (Appellant), Sheetal Sathe, Sachin Mali, Rupali Jadhav, Harshali Potdar, Surendra Gadling, Jagdish Meshram, Vernon Gonsalves, Gautam Navlakha, Varavara Rao, Prof. Shoma Sen, Rona Wilson, Prof. Sai Baba, Sudha Bharadwaj, Vira Satidar, Sudhir Dhawale, Mahesh Raut in 2010‑11 and 2012 had come to meet Milind Teltumbde for discussing urban work of the Communist Party of India (Maoist) in the Jungle area and they all underwent arms/weapons and explosives training and awareness programme on various topics related to the Maoist movement. Further, a statement recorded on 25‑08‑2020 of KW‑4 states that between 2008 and 2018 Central Committee Member Milind Teltumbde was looking after the Jungle and urban area work of the Communist Party of India (Maoist). That in 2011‑12, Maoist members looking after the urban area from Pune namely Ramesh Gaichor, Sagar Gorkhe, Rupali Jadhav, Jyoti Jagtap (Appellant), Sachin Mali, Sheetal Sathe visited Gadchiroli in the Korchi Khobramendha Jungle for attending a meeting (Parisamwad) and met Milind Teltumbde. At that time these persons stayed in the jungle for 5‑6 months and underwent weapons and explosives training. This statement once again establishes the active presence of the Appellant with the naxalite movement and its core members., House search panchnama dated 12‑09‑2020 of Room No. 56/2/1, Lane No. 31, Dagdi Chawl, NIBM Road, Kondwa, Pune, residence of the Appellant (appearing on page No. 178 of the Memorandum of Appeal) refers to seizure of various documents, prominent amongst which is a xerox copy of Shaniwarwada Elgar Parishad account and another handwritten letter addressed to one Sudhir dated 26‑05‑2019 which mentions the name Gadling in the said letter. The eight pages of the Shaniwarwada Elgar Parishad account have been tendered across the bar by Mr. Patil. They form part of the charge sheet. The same is taken on record and marked X for identification. Perusal of the said account statement clearly reveals that the Appellant was looking after the entire account of income and expenditure of the Elgar Parishad event from 02‑10‑2016. It is a detailed account of the entire income received, funds received and expenditure incurred, maintained by the Appellant. The summary of account in the statement states that against the total income of Rs. 3,83,790, there was an expenditure of Rs. 3,50,170 for the Shaniwarwada event. This accounting document negates the argument of the Appellant that she was merely a member of Kabir Kala Manch who had gone to the event to perform and shout slogans just like others at the event when it is now revealed that her role in organizing the Elgar Parishad event was much more and she was actively involved in the same since she maintained the entire income and expenditure account of the event., Statement recorded on 11‑06‑2018 of Mr. Kishor Manohar Kamble by the National Investigation Agency under Section 164 of the Criminal Procedure Code (appearing on page 242 of the Memorandum of Appeal) states that the Appellant along with other members of Kabir Kala Manch attended the meeting in the first week of October 2017 at Panmala, Buddhavihar for organisational purpose of the Elgar Parishad event and within one month thereof, the Appellant herself gave a phone call and met him personally, coordinated with him and persuaded him to attend the Elgar Parishad event. The statement further states that Jyoti Jagtap (Appellant) had participated in various other meetings in respect of organization of the Elgar Parishad event actively., Statement recorded on 12‑06‑2018 of Mr. Datta Pol by the National Investigation Agency under Section 164 of the Criminal Procedure Code (appearing on page 246 of the Memorandum of Appeal) states that Jyoti Jagtap (Appellant) along with Sagar Gorkhe and Ramesh Gaichor was involved in organizing the Elgar Parishad event, attended preparatory meetings; that he deposited Rs. 10,000 with Ramesh Gaichor for the purpose of mandap, speaker and lights for the event., Statement recorded on 29‑09‑2020 of Ms. Ulka Mahajan by the National Investigation Agency under Section 164 of the Criminal Procedure Code (appearing on page 251 of the Memorandum of Appeal) states that Jyoti Jagtap (Appellant) was actively involved in coordinating with her and invited her to attend the Elgar Parishad event., Statement recorded on 24‑09‑2020 of Dr. Sangram Bamne by the National Investigation Agency under Section 164 of the Criminal Procedure Code (appearing on page 255 of the Memorandum of Appeal) states that he had attended the long march programme by Kabir Kala Manch members including Ramesh Gaichor, Sagar Gorkhe and Jyoti Jagtap (Appellant). He has stated that on 12‑11‑2017, a State level meeting was held at Aurangabad under his presidency and 50 to 60 representatives of various districts including Sudhir Dhawale and Kabir Kala Manch members Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap were present in the said meeting wherein discussion on fund collection and distribution, review of district level meeting, long march, publication of book namely Bheema Koregaon Shauryadin etc was made. He has further stated that the programme started at 03:00 p.m. and ended at 10:30 p.m. The song and performance by Sagar Gorkhe, Ramesh Gaichor, Jyoti Jagtap (Appellant), Rupali Jadhav and other Kabir Kala Manch members was aggressive in nature and they also performed a street play at the Elgar Parishad event. Thereafter final speech was delivered by Prakash Ambedkar wherein he appealed to donate for the Elgar Parishad programme and members of Pune District Committee collected the funds donated by the public present in the programme in cash by moving a jholi (large cloth) and Rs. 2‑2.50 lakh was collected., We have carefully gone through the transcript of the stage play enacted by Kabir Kala Manch members. The entire transcript is placed at Page Nos. 160 to 165 and is part of the charge sheet. On reading the same, we are afraid to state that the role played by Kabir Kala Manch and its activists on the date of the event was not only aggressive, but also highly provocative and clearly designed to incite hatred and ignite passion. There are a number of innuendos in the text, words, performance of Kabir Kala Manch which are pointed directly against the democratically elected government, seeking to overthrow the government, ridiculing the government, excerpts of which need to be mentioned here in order to highlight the role of the Appellant. These pertain to songs, phrases, questions asked and answers given and performance ridiculing phrases such as: Acche din, Gomutra, Shakahar, the Prime Minister referred to as an infant, the Prime Minister’s travelogue, RSS dress/outfit, policies like Demonetisation, Sanatan Dharma, Ram Mandir, that Shivaji Maharaj being vehemently opposed to Muslims, that Tipu Sultan being against Hindus and he committed murders of Hindus and brought down temples, that Constitution is not the highest document, but according to Golwalkar Guruji it is Manusmruti, behaviour and atrocities of Peshwas towards Dalits, treatment and nomenclature of Dalit women by Peshwas, atrocities on Dalits in today’s India. Kabir Kala Manch admittedly performed and incited hatred and passion by performing on the above agenda in the Elgar Parishad event. There is thus definitely a larger conspiracy within the Elgar Parishad conspiracy by Kabir Kala Manch and the Communist Party of India (Maoist)., Mr. Patil has also referred to one document found in the hard‑disk marked as Ex‑7 of CyP170/2018 of Ramesh Gaichor (Accused No. 14) at page Nos. 315 to 334 which contains the report of meeting held on 24‑09‑2017 at Dadar, Mumbai for the purpose of organizing the Elgar Parishad event. In this document, Jyoti Jagtap (Appellant)’s name prominently figures as the representative in the committee for western Maharashtra region along with twelve others. Another document recovered from the hard‑disk Ex‑7 of CyP170/2018 from Ramesh Gaichor relied upon by the prosecution is the pamphlet of invitation for the Bhima Koregaon Shauryadin i.e. Elgar Parishad event. The invite clearly mentions the name of Jyoti Jagtap (Appellant) as one of the invitees as also the contact person along with the names of Sagar Gorkhe, Ramesh Gaichor who are active members of Kabir Kala Manch as also three other persons. Hence her participation in the event was not merely restricted to her performance but was part of a larger conspiracy of the Communist Party of India (Maoist).
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Admittedly, all the aforesaid documents form part of the chargesheet and no objection is raised by the Appellant. In respect of the larger conspiracy and design of the Communist Party of India (Marxist) to infiltrate and carry out its objectives through KKM and activists like the Appellant, we also deem it fit to reproduce certain relevant paragraphs from the judgment dated 19 September 2022 in the case of Hany Babu (Accused No. 12) passed by a coordinate bench of the Supreme Court of India while rejecting the bail application of Accused No. 12 in the same crime., The Communist Party of India (Maoist) is a merger of the Communist Party of India (Marxist-Leninist), the People's War Group and the Maoist Communist Centre of India. It was notified as a terrorist organisation on 22 June 2009 under the Unlawful Activities (Prevention) Act. Its objectives are to engage in a protracted armed struggle to establish a people's government by undermining and seizing power from the State. The party has a constitution, a hierarchical system and a Politburo whose decisions are transmitted through the Central Committee. The Central Military Commission is the main armed body, supported by regional bureaus such as State Committees, Zonal Committees, District Committees and armed squads. The Central Technical Committee is responsible for assembling weapons from explosives looted by attacking Government forces. Primary documents of the party include the Constitution of the Party, Party Programme, Strategy and Tactics of the Indian Revolution, Holding High the Bright Red Banner of M.L.M., and Political Resolution. According to these core documents, the main task is to seize political power, annihilate the armed forces of the State through war, mobilise the people on a large scale, and coordinate the armed struggle through the Politburo, Central Committee, People's Liberation Guerrilla Army and United Front, a frontal organisation., The party works to assimilate unemployed youth from impoverished rural and urban areas, teachers, intellectuals and employees into its organisation. It creates a unified front and armed struggle as primary weapons against the Indian State. Under the pretext of democratic rights organisations, it publishes adverse reports that affect anti‑Naxal operations of the State security forces. The party has planned a detailed strategy to unite the struggles of various oppressed nationalities into a common fighting front against the State. Documents seized from the accused refer to an urban movement that complements rural armed struggle by sending cadres to the countryside, infiltrating enemy ranks, sabotaging critical industries and generating intellectual support., Executive committees have been established to work according to the revolutionary objective. The mass organisation is divided into three sectors – Underground Revolutionary Mass Organisations, Open and Semi‑open Revolutionary Mass Organisations and Mass Organisations not directly linked to any party – the latter operating under covers such as the Elgar Parishad at Pune. These are further subdivided into Fractional Work, Party‑Formed Cover Organisations and Legal Democratic Organisations. Methods include creating activist groups in factories, mines, industrial estates, offices, slums, chawls, streets, societies and educational institutions. Party cells organise, politicise, educate and recruit masses, while party fractions ensure uniform tactics within non‑party organisations., The literature of the party refers to the military task of the urban movement as secondary and complementary to the rural armed struggle. Urban organisations perform tasks that support the defence of the urban movement, assist the rural armed struggle and conduct direct military operations under central direction. Communications are carried out through couriers and secure channels, with elaborate precautions for meetings. The Revolutionary Democratic Front, a banned organisation, provides systematic support to Naxals and their families, organising conferences and fact‑finding missions. The accused are also active members of other frontal organisations, namely the Anuradha Ghandy Memorial Committee, Kabir Kala Manch, Prosecuted Prisoners Solidarity Committee, Committee for Release of Political Prisoners, Committee for Protection of Democratic Rights, Peoples Union for Democratic Rights, Coordination of Democratic Rights Organisation, Democratic Students Union, Visthapan Virodhi Jan Vikas Aandolan, Revolutionary Writers Association and the Committee for Defence and Release of G. N. Saibaba., The party does not believe in peace talks and pursues protracted armed struggle. It has attacked and killed various government officials and looted weapons and explosives. It raises funds for unlawful activities by levying taxes on tendu leaves, bamboo and road contractors. To keep their identity secret, they use different alias names. Front‑organisation members procure gelatin from illegal mining contractors, use a soda‑sulphur combination as explosive and use calcium‑ammonium nitrate for attacks on State forces. The accused are involved in procuring weapons and ammunition from Maoist groups in Nepal through the Manipur Maoist channel. The policy of the party is to exploit discontent among weaker sections to propagate a hardcore Maoist philosophy of violence, including street plays that have led to incidents such as the Bhima‑Koregaon violence resulting in arson, violence and the death of one person., According to the National Investigation Agency, the above outlines the aims and objects of the Communist Party of India (Maoist) and the conspiracy in which the Appellant is a part. The agency states that these objectives are being implemented by the Appellant and his role must be seen in the context of this larger canvas and not in isolation. Documents recovered from Accused No. 12 include a file titled \2 inch by Ramananna‑H.pdf\ dealing with integrated weapon training, describing a 50.8 mm mortar that requires two persons to operate, progressive weapon training, ammunition statements, identification of high explosives, procedures for misfire, and handling of 2‑inch mortar, smoke, illuminating and signal bombs. Another document, \A.C‑G‑B.pdf\, is a guidebook for Area Committee Members covering consolidation of the party network, flag protocol and important revolutionary dates, noting that 26 January and 15 August are to be treated as Black days. Additional seized material includes \AJ SS‑1‑ Indian Army‑English.pdf\ issued by the Central Committee (Provisional) CPI (Maoist) Party under the Awam‑E‑Jung Study Series‑1, a review of the Indian Army, and \BJ‑SAC‑ RE.pdf\ concerning the Bihar‑Jharkhand Special Area Committee. A communication titled \File Lr2 SIC‑Oct‑2016.pdf\ from Varavara (Accused) to comrades discusses confidential information about meetings involving Rona Wilson, Sudhir, and Varavara, references political parties, fascist movements, elections in Uttar Pradesh and Punjab, arms struggle in forest areas, and meetings of senior political leaders such as Shri Narendra Modi, Shri Amit Shah and Shri Rajnath Singh, as well as international media coverage. Another communication between Rona Wilson and comrade Prakash (Ritupan Goswami) mentions that Arun Ferreira, Vernon Gonsalves and others are concerned with the urban front struggle, refers to issues raised by G. N. Saibaba, assigns the Appellant responsibility to coordinate programmes and protests for the defence and release of Saibaba, and requests eight crores for annual supply of M4 rifles with four hundred thousand rounds, stating that defeating Hindu fascism is a core agenda and proposing steps to end the \Modi‑Raj\ and target road shows in a manner reminiscent of a \Rajiv Gandhi‑type incident\., Thus, from the totality of the material presented, the Appellant's role cannot be segregated from the conspiracy alleged by the National Investigation Agency. The documents clearly highlight the Appellant's active role in organising the Elgar Parishad event and his association with prominent members of the Communist Party of India (Marxist), a designated terrorist organisation. The Elgar Parishad event was used to establish underground contact with the banned organisation through its activists, including the Appellant, leading to large‑scale violence, unrest and the death of one person. In view of the material on record, there are reasonable grounds to believe that the allegations of conspiracy, attempted, advocated and abetted commission of a terrorist act against the Appellant are prima facie true. Given the seriousness of the conspiracy and the threat it poses, the submissions made on behalf of the Appellant cannot be accepted. No infirmity or error is found in the order passed by the learned Special Judge rejecting the bail application of the Appellant. Considering the material on record and the foregoing discussion and findings, the appeal is dismissed.
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Cr. M.P . No. 4241 of 2018 I.A. No. 4948/2019 Rahul Gandhi Petitioner - Versus The State of Jharkhand and Navin Jha Opposite Parties. For the Petitioner: M/s. Kaushik Sarkhel, Advocate; M/s. Ajit Kumar, Senior Advocate; M/s. V. K. Sahu, Advocate; M/s. Kumar Harsh, Advocate; M/s. Abhishek Abhi, Advocate; M/s. Surya Prakash, Advocate; M/s. Suraj Kishore Prasad, Advocate. Heard the parties., The petitioner has challenged the legality, correctness and propriety of the order dated 15 September 2018, passed by Sri Navneet Kumar, learned Judicial Commissioner, Ranchi, in Criminal Revision No. 281 of 2018, whereby the learned Judicial Commissioner set aside the order dated 7 July 2018 in connection with Criminal Procedure No. 1698/2018, passed by Sri Ajay Kumar Guria, learned Subordinate Judicial Magistrate, Ranchi, who had dismissed the complaint petition filed by the opposite party no. 2 under section 203 of the Criminal Procedure Code., The petitioner has further challenged the order dated 28 November 2018, passed by the learned Subordinate Judicial Magistrate, Ranchi, whereby, after the observation made in Criminal Revision No. 281 of 2018, the learned Subordinate Judicial Magistrate found a prima facie case to be true against the petitioner under section 500 of the Indian Penal Code and directed issuance of process., The complainant opposite party no. 2 filed a complaint against the petitioner Sri Rahul Gandhi, alleging that in the All India Congress Committee Plenary Sessions dated 18 March 2018, Sri Rahul Gandhi made a speech against the Bharatiya Janata Party stating: 'The people of this country will accept a lying Bharatiya Janata Party leadership drunk with power because they know what the Bharatiya Janata Party is designed for.' He further said: 'They will accept a man accused of murder as the President of Bharatiya Janata Party but the people will never accept the same in the Congress Party.', Being aggrieved by the aforesaid statement, the opposite party no. 2, who claims to be a member of the Bharatiya Janata Party, filed the present complaint. The complaint petition states that the statement made by Mr Rahul Gandhi was not only false but also an insult to all workers, supporters and leaders of the Bharatiya Janata Party. The opposite party, being hurt and anguished, prayed for an enquiry and, after such inquiry, for issuance of process against Mr Rahul Gandhi under sections 499 and 500 of the Indian Penal Code and for trial of the case, along with compensation of Rs 10 crore and costs., Sri Ajay Kumar Guria, learned Subordinate Judicial Magistrate, Ranchi, dismissed the complaint of opposite party no. 2 by order dated 7 July 2018 under section 203 of the Criminal Procedure Code., The opposite party, aggrieved by the rejection, filed Criminal Revision No. 281 of 2018 before the learned Judicial Commissioner, Ranchi. The Judicial Commissioner, by order dated 15 September 2018, set aside the order dismissing the complaint and observed that a prima facie reading of the speech indicates repeated references to the Bharatiya Janata Party and its members, and it must be seen whether these references amount to defamation., The learned Judicial Commissioner, by setting aside the order dated 7 July 2018, remanded the matter back to the learned Subordinate Judicial Magistrate, Ranchi, with a direction to re‑appreciate the evidence and pass an order afresh on the point of determining prima facie material to proceed. Accordingly, the Subordinate Judicial Magistrate, on the basis of the direction, passed a fresh order dated 28 November 2018, finding a prima facie case against Sri Rahul Gandhi under section 500 of the Indian Penal Code and issued process for his appearance., Mr Kaushik Sarkhel, learned counsel for the petitioner, submitted that opposite party no. 2 has no locus standi to file the case and that the provision under section 199 of the Criminal Procedure Code has not been complied with. He further submitted that the revisional court had overlooked the mandate of law enshrined in section 398 of the Criminal Procedure Code as it directed the subordinate magistrate to make further enquiry into the complaint., Mr Ajit Kumar, learned Senior Counsel for opposite party no. 2, submitted that the present application was filed after the second order was passed by which the learned Subordinate Judicial Magistrate found a prima facie case under section 500 of the Indian Penal Code and issued processes, and that order has not been challenged in this application., Later, an interlocutory application was filed on behalf of the petitioner and the order passed under section 204 of the Criminal Procedure Code was brought on record with a further prayer to amend the order passed in Criminal Miscellaneous Petition No. 4241 of 2018 for setting aside that order as well., Mr Kaushik Sarkhel, appearing for the petitioner, submitted that the order dated 28 November 2018 was passed by the learned Subordinate Judicial Magistrate, Ranchi under section 204 of the Criminal Procedure Code. At the time of filing the petition, the petitioner was not aware that the order had been passed under section 204. Only when the summons was issued did he learn of it, and subsequently an amendment petition was filed by virtue of the interlocutory application., It was further submitted that, since the petitioner was residing outside the territorial jurisdiction of the inquiring magistrate, the provision of section 202 of the Criminal Procedure Code had not been complied with. Section 202 mandates that a magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation., In the present case, the process under section 204 was issued by the Subordinate Judicial Magistrate, Ranchi after conducting an enquiry. Accordingly, it is apparent that the provision of section 202, with regard to the petitioner residing outside the territorial jurisdiction, has been fully complied with., Reliance has been placed upon the following decisions: (i) AIR 1938 Calcutta 22, holding that a learned Sessions Judge cannot direct a magistrate to issue summons in appellate or revisional jurisdiction where a complaint was dismissed under section 203; (ii) AIR 1932 Lahore 362, holding that a Sessions Judge cannot direct a magistrate to frame charge under a particular section; (iii) (2010) 5 SCC 600, holding that a statement not directed against any individual or company will not constitute a prima facie case of defamation, but in the present case the petitioner specifically named the Bharatiya Janata Party; (iv) (1972) 2 SCC 680, explaining that when section 499 is invoked, the identity of the company or association must be established; (v) MANU/DE/0365/2021, holding that the complainant must show how he is aggrieved within the definition of section 199(1) of the Criminal Procedure Code; (vi) MANU/WB/0927/2015, holding that cognizance of defamation against specified office holders cannot be taken without prior sanction of the State Government; (vii) MANU/MH/0730/2002, dealing with locus standi of the complainant under sections 499/500; (viii) MANU/BH/0112/1975, holding that cognizance shall be taken against a person who has reason to believe the imputation will harm reputation, and that intention to harm cannot be decided at enquiry stage; (ix) MANU/HY/0390/2018, holding that a criminal proceeding manifestly mala fide must be set aside., The learned lawyer for opposite party no. 2 drew the court’s attention to section 499 and Explanation‑2 of the Indian Penal Code, which reads: 'Whoever, by words either spoken or intended to be read, or by signs or visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.' Explanation‑2 adds that it may amount to defamation to make an imputation concerning a company, association or collection of persons as such., It was submitted that opposite party no. 2, being a member of the Bharatiya Janata Party for the last 25 years, was aggrieved by the statement and therefore had locus standi to file the complaint, and that there is full compliance with section 199., The court was asked whether Mr Rahul Gandhi made the aforesaid statement in the AICC Plenary Sessions dated 18 March 2018. The petitioner’s counsel did not dispute this fact. Witness Pawan Kumar Sahu, as E.W.1, stated that he is a member of the Bharatiya Janata Party for the last 25 years and that Mr Rahul Gandhi made the statement, which is also reported in several newspapers and available at https://www.youtube.com/watch?v=8RCirts0I4Y., Mr Rahul Gandhi’s statement on 18 March 2018 was: 'The people of this country will accept a lying Bharatiya Janata Party leadership drunk with power because they know what the Bharatiya Janata Party is designed for.' He further said: 'They will accept a man accused of murder as the President of Bharatiya Janata Party but the people will never accept the same in the Congress Party.', The questions are: (i) whether the statement gives rise to a cause of action for opposite party no. 2 to file the complaint, as it was not made against him personally; and (ii) whether the statement prima facie amounts to defamation., The petitioner’s counsel argued that no defamatory statement was made against opposite party no. 2, and therefore he does not fall within the expression 'person aggrieved' under section 199(1) of the Criminal Procedure Code. It was further submitted that 'person aggrieved' means a person wrongly deprived of a legal entitlement, not merely disappointment or inconvenience., The speech imputes the Bharatiya Janata Party leadership as liars who are drunk with power and that its workers will accept a person accused of murder as their leader, which is prima facie defamatory. A plain reading of section 499 read with Explanation‑2 shows that an imputation against a company, association or collection of persons, such as the Bharatiya Janata Party, falls within the definition of defamation., Thus, opposite party no. 2, as a party worker of the Bharatiya Janata Party, has locus standi to file the complaint under sections 499 and 500 of the Indian Penal Code, and a prima facie case is made out against the petitioner., The petitioner’s counsel submitted that the revisional court directed the Subordinate Judicial Magistrate to make further enquiry, thereby overlooking the mandate of section 398 of the Criminal Procedure Code. On plain reading, section 398 allows a higher court to direct a subordinate magistrate to make further enquiry only when the complainant shows cause why such direction should not be made., The learned Judicial Commissioner did not direct the Subordinate Magistrate to conduct further enquiry; he only directed re‑appreciation of evidence and a fresh order on prima facie material. The Subordinate Judicial Magistrate had originally dismissed the complaint under section 203, and the proviso of section 398 does not apply. No further enquiry was made after the revision, and the fresh order finding a prima facie case under section 500 and issuing process under section 204 was passed., In view of the foregoing, I do not find any illegality in the order dated 15 September 2018 passed by the learned Judicial Commissioner, Ranchi in Criminal Revision No. 281 of 2018, nor in the order dated 28 November 2018 passed by the learned Subordinate Judicial Magistrate, Ranchi, finding a prima facie case against Mr Rahul Gandhi under section 500 of the Indian Penal Code.
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January 18, 2021 The following modifications are effected to the Standard Operating Procedure dated 18th September 2020 with effect from 27th January 2021 in respect of the High Court of Karnataka, Principal seat at Bengaluru and Benches at Dharwad and Kalaburagi:, The Silver Jubilee Gate (facing Vidhana Soudha) at Bengaluru shall be opened only for the entry of cars of Honourable Judges between 10.00 am to 10.45 am., At the principal seat at Bengaluru, the entry of the advocates' four‑wheelers from Gate No.3 shall be allowed after stopping the vehicles at the gate for checking identity cards. The entry of the vehicles of the litigants and officers of the State Government shall not be allowed from the said gate. The entry of the vehicles of the staff shall be allowed from the said gate only on production of identity card. However, the advocates shall be subjected to thermal scanning and baggage scanning at two entry points by the side of the reception hall. The entry through the reception hall shall be prohibited as the said hall shall be used for the time being for rectification of objections., At the principal seat at Bengaluru and the benches at Dharwad and Kalaburagi, the restrictions on use of canteens shall be relaxed subject to the condition that seating capacity in the canteens shall be restricted to half of the present capacity, rules of maintaining social distancing shall be followed by maintaining a distance of six feet and hand sanitizers shall be provided in the canteens. Entry passes shall be provided to the staff members working in the canteen by the Registry who shall be subjected to thermal scanning. An undertaking shall be taken from the canteen contractor that he will ensure that any member of the staff who has symptoms of COVID-19 will not be allowed to work in the canteen and that all the staff members maintain social distancing and wear proper masks at all times., There shall be one additional counter provided at the Principal Bench, Bengaluru for filing and receiving Petition Fee / Court fee, next to the existing counter., The reception hall at the Principal Bench shall be used for the time being for rectification of office objections., Use of elevators/lifts shall be restricted to 50% of the capacity excluding the lift operator., Wearing of masks is compulsory in the court halls, Bar Association premises, offices as well as in the court compound. Anybody found not wearing a mask shall be immediately required to leave the premises., The relaxation made to the dress code of the advocates is hereby withdrawn. The advocates shall follow the normal dress code with effect from 1st February 2021., These relaxations are purely on an experimental basis. The High Court of Karnataka will have power to withdraw relaxations if it is found that advocates and litigants are not following rules of wearing masks and maintaining social distancing., Subject to the modifications made above, the provisions of the existing Standard Operating Procedure shall continue to operate. It is clarified that the restrictions on the entry of litigants as provided in the existing Standard Operating Procedure will continue to operate at the principal seat at Bengaluru and the benches at Dharwad and Kalaburagi. The entry of litigants shall remain prohibited except as provided in the existing Standard Operating Procedure.
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Writ Petition No. 1764 of 2020, Writ Petition Nos. 18721, 18725 and 18730 of 2020, and Miscellaneous Petition Nos. 23251, 23249, 23254, 23255, 23262 to 23264 of 2020 are before this Court. The petitioners are J. Jayaniithaa in Writ Petition No. 18721, J. Suhanya in Writ Petition No. 18725, and J. J. Harath Kumar in Writ Petition No. 18730. The respondents are Inspector General of Registration, 100 Santhome High Road, Raja Annamalai Puram, Chennai‑600028; the District Registrar (Administration), South Chennai, No.9 Jones Road, Saidapet, Chennai‑600015; the Sub‑Registrar, Alandur, No.12 1st Main Road, Nanganallur Co‑operative Society Ltd., Nanganallur, Chennai‑600061; and Mr. D. Nethaji (respondent in Writ Petition Nos. 18721 and 18725) and Mr. D. Suresh (respondent in Writ Petition No. 18730)., Prayer in Writ Petition No. 18721 of 2020: The petition seeks a Writ of Certiorari and Mandamus under Article 226 of the Constitution of India, calling for the records of the third respondent pertaining to the impugned settlement deed dated 15 April 2015, registered as Document No. 2637 of 2015 on the file of the Sub‑Registrar, Alandur, executed by the late P. Deekaraman in favour of D. Netaji, the fourth respondent, and seeks to quash the deed and direct the third respondent to remove the entry of the settlement deed from its records., Prayer in Writ Petition No. 18725 of 2020: The petition similarly seeks a Writ of Certiorari and Mandamus under Article 226 of the Constitution of India, calling for the records of the third respondent concerning the settlement deed dated 15 April 2015, registered as Document No. 2637 of 2015 on the file of the Sub‑Registrar, Alandur, executed by the late P. Deekaraman in favour of D. Netaji, and requests that the deed be quashed and the entry removed from the third respondent’s records., Prayer in Writ Petition No. 18730 of 2020: The petition seeks a Writ of Certiorari and Mandamus under Article 226 of the Constitution of India, calling for the records of the third respondent relating to the settlement deed dated 15 April 2015, registered as Document No. 2638 of 2015 on the file of the Sub‑Registrar, Alandur, executed by the late P. Deekaraman in favour of D. Netaji, and asks that the deed be quashed and the entry be removed from the third respondent’s records., For the petitioners in all writ petitions, Mr. Abudu Kumar Rajarathinam appears for Mr. G. Krishna Kumar. For respondents 1 to 3 in all writ petitions, Mr. T. M. P. Appaiah appears as Special Government Pleader., On consent given by either side, the main writ petitions are taken up for final hearing. The issues involved in all these writ petitions are common and therefore they are taken up together, and this common order is passed., The petitioners challenge the registration of the settlement deed dated 15 April 2015, registered as Document Nos. 2637 and 2638 of 2015 on the file of the third respondent, and seek a consequential direction to the third respondent to remove the entry from its records. The subject property is Inam land measuring an extent of 3.11 acres, originally purchased by the late Mr. A. S. L. Rajan, father of the first petitioner in Writ Petition No. 18730 and grandfather of the petitioners in Writ Petitions Nos. 18721 and 18725., Records show that Mr. Dharmalinga Naicker filed Suit O.S. No. 779 of 1979 against the late A. S. L. Rajan seeking a declaration of title with respect to the subject property; the suit was dismissed by judgment and decree dated 28 April 1988. Subsequently, the father of the fourth respondent filed Suit O.S. No. 582 of 1997 against the late A. S. L. Rajan for a declaration of title on the ground that he purchased the subject property from Dharmalinga Naicker; this suit was also dismissed by judgment and decree dated 30 April 2003 by the District Munsif Court, Alandur., The late A. S. L. Rajan developed a layout comprising 31 plots after obtaining permission. Since the property was Inam land, proceedings were initiated by the Assistant Settlement Officer under Act No. 30 of 1963, and a patta was granted under Section 13(1) of the Act on 24 December 1999 in favour of the late A. S. L. Rajan. A portion of the property was conveyed to the Government of Tamil Nadu for the formation of the Inner Ring Road in 2000, and the remaining property was settled in favour of the petitioners in 2006, with the settlement deed registered on the file of the third respondent. The petitioners also obtained subdivision and patta in their favour., Despite these developments, the father of the fourth respondent obtained a patta for the subject property from the Revenue Divisional Officer, Tambaram, and secured a correction in the Town Survey Field Register. This matter was challenged before the Madras High Court in Writ Petitions Nos. 13302 and 13303 of 2015, which were allowed by an order dated 20 November 2019., The father of the petitioner in Writ Petition No. 13302 purchased 3.11 acres of land from the late A. S. Perumal Naicker by a registered sale deed dated 15 March 1971, bearing Document No. 571/71 on the file of the Sub‑Registrar, Alandur. The parcels correspond to Paimash Nos. 558 (0.66 acres), 558/1 (1.45 acres) and 620 (1.00 acre) in Adam Bakkam Village. Since the lands are Inam lands covered under the Minor Inam Act, a notice dated 24 February 1973 was issued under the Act for enquiry and issuance of patta by the Settlement Tahsildar, Chengelpat, in respect of Survey Nos. 71/1 and 71/3., Subsequently, a fresh notice (SR.263/88/TNMIA/Act/30/63/SDT) dated 01 January 1988 was issued by the Assistant Settlement Officer, Thiruvannamalai. After completion of enquiry, the Assistant Settlement Officer, Thiruvannamalai, vide proceedings No. Tha.Pa. No.5/99 dated 24 December 1999, passed an order directing the concerned Tahsildar, Tambaram, to issue patta to Mr. A. S. L. Rajan for the lands in Survey Nos. 71/1 and 71/3, considering the rival claim of the fifth respondent. Accordingly, the Zonal Deputy Tahsildar, Alandur, Tambaram Taluk, issued patta to Mr. A. S. L. Rajan and made the necessary entries in the Town Survey Field Register., Since the Assistant Settlement Officer, Thiruvannamalai, exercising power under Section 11 of the Act, issued the patta on 24 December 1999 in the name of A. S. L. Rajan, the revenue records were changed in his name in 2000. Based on this change, a settlement was executed by him in favour of his son and grandson on 21 June 2004, and a joint patta was obtained in the name of the petitioners on 22 November 2012. The order passed by the Revenue Divisional Officer is beyond the scope of the Act. Any aggrieved party, whether Government or private, may appeal to the Tribunal under Section 11(3) of the Act., Section 11(3) of the Act provides: 'Against a decision of the Assistant Settlement Officer under sub‑section (2), the Government may, within one year from the date of the decision, and any person aggrieved by such decision may, within three months of that date, appeal to the Tribunal, provided that the Tribunal may, in its discretion, allow further time not exceeding two months for filing such appeal. The Tribunal may, in its discretion, entertain an appeal by the Government at any time if it appears that the decision of the Assistant Settlement Officer was vitiated by fraud or mistake of fact.', The provision shows that the Government, if aggrieved, may appeal within one year, while a private party may appeal within three months. In the present case, the Revenue Divisional Officer, who is not a proper authority under the Act, passed an order without jurisdiction, demonstrating a non‑application of mind., Therefore, in view of Section 11(3) of the Act, the impugned order passed by the Revenue Divisional Officer, Tambaram, is non est in the eye of law and is set aside. Accordingly, the writ petition is allowed. Since the joint patta was issued on 22 November 2012 in the name of the petitioners, their names shall be restored in the revenue records within eight weeks of receipt of a copy of this order. Consequently, the connected Miscellaneous Petitions are closed. No costs., The father of the fourth respondent, in complete disregard of all earlier proceedings, executed a settlement deed dated 15 April 2015 in favour of the fourth respondent concerning the subject property. The petitioners complained to respondents 1 to 3 and requested action against the fourth respondent for the fraudulent transaction. The second respondent directed the third respondent to initiate action against the fourth respondent under Section 83 of the Registration Act. The petitioners contend that the entry relating to the fraudulent settlement deed continues to appear in the Encumbrance Certificate, and they have approached this Court for appropriate directions., The matter was heard before the Madras High Court by Mr. Abudu Kumar Rajarathinam, learned counsel for the petitioners, and Mr. T. M. P. Appaiah, learned Special Government Pleader appearing on behalf of respondents 1 to 3., The facts demonstrate that the fourth respondent and his father disregard orders of Courts or Authorities. Despite the failure before the competent civil court, the father of the fourth respondent executed a settlement deed without any right, title, or authority. There is no provision in the Registration Act that enables the official respondents to cancel any document or entry in the records. Expecting the parties to approach the civil court each time an illegal document is registered makes it practically impossible for the real owner to deal with his property, especially since civil proceedings are lengthy., In a case of this nature, the Madras High Court must exercise its jurisdiction under Article 226 of the Constitution of India. It is clear that the settlement deed dated 15 April 2015 was executed by the father of the fourth respondent without any right, title, or authority and is non est in the eye of law. This is the second time the Court is dealing with the petitioners’ rights, and the earlier orders are sufficient to establish their right over the subject property., The Court holds that the settlement deed dated 15 April 2015, registered as Document Nos. 2637 and 2638 of 2015 and executed by the father of the fourth respondent in favour of the fourth respondent, is non‑est in the eye of law. The petitioners shall present this order for registration before the third respondent, who shall register it upon payment of the necessary stamp duty and registration fees, thereby automatically reversing the earlier entries in Document Nos. 2637 and 2638 of 2015., All the writ petitions are accordingly allowed with the above directions. No costs. Consequently, the connected Miscellaneous Petitions are closed. Dated 15 December 2020., To: Inspector General of Registration, 100 Santhome High Road, Raja Annamalai Puram, Chennai‑600028; District Registrar (Administration), South Chennai, No.9 Jones Road, Saidapet, Chennai‑600015; Sub‑Registrar, Alandur, No.12 1st Main Road, Nanganallur Co‑operative Society Ltd., Nanganallur, Chennai‑600061.
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Date of decision: 22nd May, 2023 Writ Petition (Civil) 6986/2023 & Civil Miscellaneous Application 27185-86/2023 Through: Mr. Harshvardhan Pandey, Mr. Shashank Agrawal & Mr. Rohish Arora, Advocates (Mobile - 9953134789) versus Through: Ms. Rosemarry Raju, Advocate Prathiba M. Singh, Judge (Oral)., This hearing has been done through hybrid mode. Civil Miscellaneous Application 27186/2023 (for exemption) Allowed, subject to all just exceptions. Application is disposed of. Writ Petition (Civil) 6986/2023 & Civil Miscellaneous Application 27185/2023 (for stay)., This is a matrimonial dispute between Ms. Ritu Chernalia and her in‑laws and husband., The present petition has been filed by the petitioner, Ritu Chernalia, challenging the impugned order dated 31st March 2023 passed by the learned Divisional Commissioner, GNCTD (hereinafter ‘Divisional Commissioner’)., Respondent No.1 and 2 are the petitioner's in‑laws who are both senior citizens. Respondent No.3 is the husband of the petitioner. Respondent No.1 and 2 preferred an eviction petition before the District Magistrate (South East), GNCTD (hereinafter ‘District Magistrate’) under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The petition was decided by the District Magistrate by order dated 22nd September 2022 directing eviction of the petitioner from the property bearing No. C‑30, South Extension‑1, New Delhi‑110049 (hereinafter ‘Suit Property’). The Suit Property is a 3‑BHK floor in South Extension, New Delhi., In view of the above observations, I, Isha Khosla, District Magistrate, District South East, through the powers conferred upon me by the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Delhi Maintenance of Parents and Senior Citizens (Amended) Rules, 2016, on considering the facts and appreciating the evidence brought on record, pass the following orders: (1) That the respondent Smt. Ritu Chernalia shall vacate the entire premises of the subject property bearing House No. C‑30, South Extension‑1, New Delhi‑110049 and hand over the vacant peaceful possession of the subject property to the complainants Sh. Amar Chernalia and Smt. Sunita Chernalia within 30 days of receipt of this order. (2) That the Deputy Commissioner of Police, South East District is directed to ensure enforcement/compliance of the directions mentioned above, as per provisions under the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016, 3(3)(ii) and also ensure that the life and property of the complainants is secured and no harassment is caused to them by the respondent. (3) That staff be further deputed for regular visits to the senior citizens Sh. Amar Chernalia and Smt. Sunita Chernalia in order to safeguard the life and property of the said senior citizens. Compliance report of eviction of the respondent Smt. Ritu Chernalia be sent to Delhi High Court within 35 days as per the provisions under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, referred above. Given under the hand and seal of Delhi High Court on the ninth day of September 2022. Ordered accordingly. File be consigned to record room., The said order was appealed by the petitioner which was allowed by the Divisional Commissioner. By the impugned order dated 31st March 2023 the eviction was set aside, however, the Divisional Commissioner permitted Respondent No.1 and 2 to live in the Suit Property along with the petitioner. The operative portion of the impugned order reads as follows: This appellate authority has carefully perused the records and considered the detailed argument made by both sides during the hearing. It appears that the respondents and their son have a grudge against the appellant as they were, at the time of marriage between their son and the appellant, not informed of the fact that the appellant suffers from epilepsy. It also appears that the appellant has a temperamental streak in her personality. She has herself admitted that she took a high dose of pills and became unconscious but she explained that this was precipitated due to uncaring and tortuous behaviour of the respondents and her son towards her. There seems to be substance in this. The person suffering epilepsy and facing mental trauma needs to be given care rather than being deserted. There is indeed collusion between the respondents and their son. The respondents were also advised to provide a reasonable alternate accommodation/maintenance acceptable to the appellant. However, no such solution was worked out between the two parties. The respondents have taken the stand during the hearing that it is the job of their son to take care of the appellant and provide the alternate accommodation. This stand of the respondents is not justified in view of the collusion between the respondents and their son. The appellant has a small child to look after. She also has the order of the Mahila Court in her favour protecting her stay in the property in question. Of course, this is subject to due process of law but it does recognise the need of the appellant. In view of this, this appellate authority finds that the eviction is not justified and the S. Vanitha judgment of the Hon'ble Apex Court applies. The impugned order is set aside and the appeal is allowed. The respondents and their son are expected to show sensitivity towards the appellant who suffers from epilepsy and her small child. On the other hand the appellant must welcome the respondents in the property in question; the respondents have the right to stay in the property in question. Both sides shall maintain peace and harmony and resolve their matrimonial discord and property related issues in the competent court under the law. The appeal stands disposed of accordingly. A copy of this order shall be provided to both parties. Record of the proceedings before the District Magistrate (South‑East) shall also be sent back to the District Magistrate with the copy of this order., Today, learned counsel for the petitioner submits that the petitioner is satisfied with the setting aside of the order of eviction. However, the petitioner has a minor son, aged 9 years, with whom she lives in the Suit Property. Since the petitioner does not enjoy good relations with her in‑laws she does not wish that her in‑laws live in the same property with her., On a query from Delhi High Court, it is not disputed by the petitioner, who is present in court, that the property being the Suit Property belongs to Respondent No.1 and 2. On behalf of the petitioner, it is submitted that certain alternate homes were given to the petitioner, however, the same were not acceptable to the petitioner. In fact, the neighbouring property viz., C‑29 where a comfortable residence has been arranged by the in‑laws, is also not acceptable to her on the ground that it consists of a shared corridor with other occupants., On behalf of the respondents, it is submitted that Respondent Nos.1 and 2 are living with their married daughter which is a source of embarrassment. The submission of learned counsel for the respondents is that the following alternate properties were suggested to the petitioner, none of which has been accepted by the petitioner: (i) C‑29 South Extension, Part‑1, ground floor (two bedroom); (ii) Vardhaman Mantra, Sector 67, Gurugram; (iii) F‑112, Mansarovar Garden; (iv) F‑224, Mansarovar Garden; (v) F‑91, Mansarovar Garden., Heard. The Supreme Court of India in its judgment dated 15th October 2020 in Civil Appeal No. 2483/2020 titled Satish Chander Ahuja v. Sneha Ahuja while discussing the concept of shared household held as under: 83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in a shared household especially when the daughter‑in‑law is pitted against aged father‑in‑law and mother‑in‑law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter‑in‑law. While granting relief both in application under Section 12 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2005 or in any civil proceedings, the court has to balance the rights of both parties. The directions issued by the High Court in paragraph 56 adequately balance the rights of both parties., Thus, the concept of shared household clearly provides that the right of the daughter‑in‑law in a shared household is not an indefeasible right and cannot be to the exclusion of the in‑laws. The stand of the petitioner that the in‑laws should not be allowed to live in their own property is completely contrary to the settled understanding on the subject. The daughter‑in‑law, while claiming rights to live in her matrimonial home or shared household, cannot argue that the in‑laws ought not to live with her in the shared household. If circumstances exist which demonstrate that they cannot live together, alternate accommodation may also have to be explored for the daughter‑in‑law., In the present case, the Divisional Commissioner has merely held that Respondent No.1 and 2 have a right to stay in the Suit Property, which obviously cannot be questioned because the property belongs to them. The petitioner is currently in occupation of the entire property consisting of one floor. The petitioner is not willing to consider shifting to any alternate premises, though the same is offered by Respondent Nos.1 and 2. Considering the impugned order passed by the Divisional Commissioner, in the above factual background, the following directions are issued: (i) The petitioner and her son shall occupy one room in the Suit Property. The Respondent Nos.1 and 2 together shall also occupy one bedroom. (ii) The grandson, i.e., petitioner No.2 shall be permitted to use the third bedroom for his studies, tuitions, etc.; however, the said room shall be accessible to all the parties. (iii) The common areas such as the kitchen, the drawing and the dining room and staircase, etc., shall be used by all the occupants. (iv) The Respondent Nos.1 and 2 are permitted to put up CCTV cameras and the recordings of the same shall be accessible to the petitioner., The parties shall ensure that they maintain peace and order and do not engage in any acrimony. The locks to the Suit Property shall be changed and the petitioner and the Respondent Nos.1 and 2 shall have duplicate keys of the rooms., The present petition, along with all pending applications, is disposed of in the above terms.
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(Arising out of Special Leave Petition (Criminal) No. 4364 of 2011) Criminal Appeal No. 377 of 2007. This Constitution Bench of the Supreme Court of India has been constituted to consider whether the declaration made by a Constitution Bench of this Court, in the case of Subramanian Swamy versus Director, Central Bureau of Investigation and another, that Section 6A of the Delhi Special Police Establishment Act, 1946 is unconstitutional, can be applied retrospectively in the context of Article 20 of the Constitution., Necessary facts relevant for the purposes of this case are stated hereunder: The appellant, Central Bureau of Investigation, after registering the First Information Report at 02:00 p.m. on 16 December 2004 for offences under the Prevention of Corruption Act, 1988, laid a trap in the evening on the same day wherein the respondent is said to have accepted a bribe to set the things right for the radiologist conducting a prenatal test to determine the sex of the fetus in contravention of the Pre‑natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge, inter alia, on the ground that the trap, which was part of the enquiry/investigation, had been laid without the previous approval of the Central Government as provided under Section 6A of the Delhi Special Police Establishment Act., The Special Judge of the Central Bureau of Investigation rejected the application for discharge by order dated 30 April 2006. The order was carried in revision before the Delhi High Court and was registered as Criminal Revision Petition No. 366 of 2006. The learned Single Judge of the Delhi High Court, by judgment dated 5 October 2006, framed three questions for consideration, namely: (i) What is the background with regard to Section 6A of the Delhi Special Police Establishment Act? (ii) Did the Central Bureau of Investigation act in contravention of Section 6A(1)? (iii) If yes, does it mean that the entire trial, consequent upon an illegal investigation, is vitiated?, The High Court answered question No. 2 in favour of the respondent and left question No. 3 open for the competent authority to decide, directing reinvestigation if sanction is not granted and, in that event, to notify the Special Judge to close the case. The operative part of the order is reproduced in paragraph 29 of the judgment: “It follows that if, at the initial stage of trial, the illegality of investigation is brought to the notice of the court and yet the Trial Court continues with the trial then such proceedings would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. In this case, in view of the discussion above, it is clear that the provisions of Section 6A(1) of the Prevention of Corruption Act, 1988 are mandatory and not merely directory. The investigation carried out in contravention of such provisions is, therefore, clearly illegal, in violation of a statutory requirement. The dismissal of the discharge application moved on behalf of the petitioner means that the trial would continue. This cannot be permitted… However, it also does not mean that the petitioner is entitled to a discharge and the closure of the case against him. As pointed out in Rishbud’s case and Mubarak Ali’s case, reinvestigation is to be ordered in the context of the provisions of Section 6A of the said Act. While the file is to be kept pending before the Special Judge, approval of the Central Government is to be sought for investigation. If approval is accorded then the matter shall be reinvestigated as per prescribed procedure and the material gathered in such reinvestigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government, then the same shall be notified to the Special Judge who shall then close the case.”, The Central Bureau of Investigation, feeling aggrieved by the judgment of the Delhi High Court, preferred the present appeal substantially on the ground that Section 6A(2) of the Delhi Special Police Establishment Act, rather than Section 6A(1), would be applicable. The High Court erred in holding that Section 6A(1) was applicable., The appeal has been pending since 2007. During the pendency of the appeal, Section 6A(1) of the Delhi Special Police Establishment Act was held to be invalid and violative of Article 14 of the Constitution by a Constitution Bench of the Supreme Court of India by judgment dated 6 May 2014 in the case of Subramanian Swamy versus Director, Central Bureau of Investigation and another. Paragraph 99 of that judgment declares: “In view of our foregoing discussion, we hold that Section 6A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 where such allegation relates to (a) the employees of the Central Government of the level of Joint Secretary and above, and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26(c) of the Central Vigilance Commission Act, 2003 to that extent is also declared invalid.”, What the Constitution Bench did not decide was whether the declaration that Section 6A(1) of the Delhi Special Police Establishment Act is violative of Article 14 would have retrospective effect or would apply prospectively., Relying upon judgments regarding retrospective or prospective applicability of the declaration, the appellant, Central Bureau of Investigation, submits that once Section 6A(1) has been declared violative of Article 14, the judgment of the Delhi High Court should be set aside and the prosecution should be allowed to continue from the stage of rejection of the discharge application. The respondent submits that the judgment in Subramanian Swamy cannot have any retrospective operation and therefore no fault can be found with the Delhi High Court judgment, and the appeal deserves to be dismissed., At a particular stage, this Court felt that the Union of India should be made a party and should be heard. Accordingly, suo motu notices were issued by order dated 27 April 2012 and the Union of India was required to file an affidavit. The Union of India filed an affidavit dated 5 October 2012, which was permitted to be withdrawn by order dated 29 January 2013. Another affidavit was filed in February 2013. The matter was taken up on 10 March 2016 when this Court, after recording the submissions of the rival parties and considering the importance of the question, directed that the matter be placed before the Chief Justice of India on the administrative side for constituting an appropriate Bench. Paragraph 7 of the order dated 10 March 2016 framed the question for determination: “The provisions of Section 6A(1) indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India, is the moot question that arises for determination in the present case.”, The order dated 10 March 2016 reproduced the relevant provision: “Section 6A. Approval of Central Government to conduct inquiry or investigation. – (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.” The Delhi High Court, before whom the challenge was brought, held that the respondent accused was entitled to the benefit of the provision and that fresh consideration for grant of previous approval under Section 6A(1) was required. The Central Bureau of Investigation appealed against that decision., The Constitution Bench noted that the provisions of Section 6A(1) have been held unconstitutional, being violative of Article 14, by a Constitution Bench of this Court in Subramanian Swamy versus Director, Central Bureau of Investigation and another [(2014) 8 SCC 682]. The judgment of that Constitution Bench is silent as to whether its decision would operate prospectively or retrospectively. Citing precedents such as Transmission Corporation of Andhra Pradesh versus Ch. Prabhakar and others [(2004) 5 SCC 551] and the discussion on the scope of Article 20, the Court observed that the question should be referred to a larger Bench in view of Article 145(3) of the Constitution of India., Shri Tushar Mehta, learned Solicitor General appearing for the appellant, Central Bureau of Investigation, made detailed submissions. He submitted that Section 6A of the Delhi Special Police Establishment Act is a mere procedural provision and not a penal provision and therefore would not attract Article 20(1) of the Constitution. He argued that Article 20 applies only to provisions of law whose violation results in conviction and sentence, and procedural issues such as statutory protection during trial do not fall within its ambit. He further submitted that Article 20 would have no applicability in determining whether the declaration in Subramanian Swamy would be prospective or retrospective, because the protection under Article 20 extends only to conviction and sentence and not to procedural aspects of investigation. He enumerated several aspects: (a) Article 20 is limited where distinct offences are created subsequently; (b) it bars infliction of a greater penalty post‑commission of the offence; (c) Section 6A did not de‑criminalise offences under the Prevention of Corruption Act; (d) Section 6A did not provide blanket immunity against anti‑corruption laws; (e) Section 6A did not create any vested right covered by Article 20; (f) the declaration of invalidity of Section 6A is a judicial order, not a legislative measure. He relied upon judgments such as Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, State of West Bengal v. S.K. Ghosh, Sajjan Singh v. State of Punjab, Rattan Lal v. State of Punjab, Union of India v. Sukumar Pyne, G.P. Nayyar v. State (Delhi Administration), Soni Devrajbhai Babubhai v. State of Gujarat, Securities and Exchange Board of India v. Ajay Agarwal. He further submitted that prior to insertion of Section 6A, a similar provision existed in Single Directive No. 4.7(3) requiring prior sanction to investigation, which was declared invalid by this Court in Vineet Narain v. Union of India. Consequently, Section 6A was introduced in 2003 by Section 26(c) of the Central Vigilance Commission Act, 2003. He noted that the Constitution Bench in Subramanian Swamy held the classification in Section 6A discriminatory and violative of Article 14. He concluded that Section 6A is not a provision creating an offence or providing immunity, does not exempt applicability of anti‑corruption laws to officers above Joint Secretary, is a mere executive safety mechanism, and at best a technical, procedural pre‑condition to be exercised prior to investigation., Shri S.V. Raju, learned Additional Solicitor General of India, made submissions on behalf of the Union of India. He submitted that an unconstitutional statutory provision remains void ab initio even if it operated for some time before being struck down, and only in rare cases does this Court protect actions taken under an unconstitutional statute on equitable grounds. He explained that Section 6A of the Delhi Special Police Establishment Act prohibits conducting any enquiry or investigation. Referring to the definition of enquiry in Section 2(g) of the Code of Criminal Procedure, 1973, he submitted that enquiry commences after a charge‑sheet is filed and is a forerunner to trial. He relied upon Hardeep Singh v. State of Punjab. He further referred to the definition of investigation in Section 2(h) of the Code of Criminal Procedure and submitted that the prohibition in Section 6A relates to collecting evidence in an enquiry or during investigation. He argued that prior to the May 2014 judgment, two situations could arise: (i) evidence already gathered as part of investigation, or (ii) evidence not gathered because of the prohibition in Section 6A. Citing H.N. Rishbud and Inder Singh v. State of Delhi, he submitted that where a magistrate has already taken cognizance based on an investigation conducted without approval under Section 6A, the court can act on the evidence and the proceedings would not be vitiated. He cited cases such as Fertico Marketing and Investment Private Limited v. Central Bureau of Investigation, Rattiram v. State of Madhya Pradesh, State of Karnataka v. Kuppuswamy Gownder. He further submitted that where investigation was not conducted and the magistrate has not taken cognizance, the investigating agency can conduct further investigation subject to Section 17(A) of the Prevention of Corruption Act, 1988, without needing approval under Section 6A. He stated that Section 6A does not confer any immunity from prosecution and that a trial based on a private complaint relating to corruption would be maintainable without immunity under Section 6A. He also submitted that Article 20(1) of the Constitution has no application because investigation is only part of the procedure for collecting evidence and does not amount to conviction or sentence, relying upon Rao Shiv Bahadur Singh., Dr. R.R. Kishore, the respondent, appeared in person and submitted that the Central Bureau of Investigation does not have jurisdiction to initiate investigation against him without prior approval of the Central Government. He relied upon the affidavit filed by the Union of India, which stated that the view taken by the learned Single Judge of the Delhi High Court in the impugned order dated 5 October 2006 is correct and captures the purpose of the provision. He further argued that Section 6A of the Delhi Special Police Establishment Act is intended to provide meaningful protection to persons with decision‑making powers from frivolous or motivated investigation by providing a screening mechanism. He referred to the directions issued by this Court in Vineet Narain that the Central Government shall remain answerable for the functioning of the Central Bureau of Investigation. He concluded that nothing survives in the appeal filed by the Central Bureau of Investigation and the appeal deserves to be dismissed., The Central Bureau of Investigation also submitted that it had violated Section 6 of the Delhi Special Police Establishment Act as well as Sections 17 and 18 of the Prevention of Corruption Act, 1988.
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Even though the FIR was registered only under Section 7 of the Prevention of Corruption Act, 1988 against the respondent alone, but still the Central Bureau of Investigation conducted investigation regarding possessing assets disproportionate to known sources of income not only against the respondent but also his wife, who was working as an employee of the State of Uttar Pradesh., Referring to the facts of the case, it was stated that the case was registered under Section 7 of the Prevention of Corruption Act on 16 December 2004, the High Court delivered the judgment impugned in the appeal on 5 October 2006, the petition was preferred by the Central Bureau of Investigation in January 2007, leave was granted thereafter and notice was issued to the Union of India on 27 April 2012. The affidavit was filed by the Union of India in February 2013. The provisions of Section 6A of the Delhi Special Police Establishment Act were continuing on the statute book till 6 May 2014 when the judgment in the case of Subramanian Swamy was delivered. On the basis of the above facts, it was submitted that the appeal was liable to be dismissed as being meritless., It was next submitted that at the time when the appeal is being heard, there is already in existence a similar provision protecting the interest of the respondent by way of Section 17A of the Prevention of Corruption Act, 1988., An argument relating to discrimination has also been raised by the respondent to the effect that if the contention of the appellant is accepted, the respondent would be discriminated from those set of government servants who have availed the protection of Section 6A of the Delhi Special Police Establishment Act and the proceedings against them have come to a closure in cases where the competent authority declined to grant sanction and also to another set of cases where the Courts have quashed the proceedings in the absence of sanction under Section 6A of the Act., The next argument relates to Section 6 of the General Clauses Act, 1897 dealing with effect of repeal in view of its applicability under Article 367 of the Constitution., It is also submitted that where a law has been in force for a long time and is subsequently repealed, the same would not affect the rights which had accrued during the existence of such law., It is also his submission that if, while declaring the statute to be invalid, the Court does not expressly incorporate for its retrospective application, it shall be deemed to apply prospectively. Reliance was placed upon the following judgments: Keshavan Madhava Menon; Ashok Kumar Gupta and Another versus State of Uttar Pradesh and others; Kaiser Aluminium and Chemical Corporation versus Bonjorno; Assistant Excise Commissioner, Kottayam and Others versus Esthappan Cherian and another, Civil Appeal No. 5815 of 2009 of the Supreme Court of India vide order dated 6 September 2021., It was next submitted that the appeal of the Central Bureau of Investigation has been filed primarily on two grounds; that Section 6A(1) of the Delhi Special Police Establishment Act is not mandatory; and that Section 6A(2) would apply. He also submitted that no ground has been taken that Section 6A(1) is unconstitutional or invalid, as such, the Central Bureau of Investigation cannot argue this point., Lastly, it is submitted that not only Article 20, but also Article 21 of the Constitution, should be read in favour of the respondent and also in favour of the law existing at the time when the offence is said to have taken place, benefit should be extended of any protection available at that time., Shri Arvind Datar, Senior Advocate for appellant Manjit Singh Bali in Criminal Appeal SLP (Criminal) No. 4364 of 2011 made the following submissions: After referring to the question referred to the Constitution Bench, Shri Datar submitted that three corollary questions also arise for consideration namely: Whether declaration of a law being violative of Article 14 or any other Article contained in Part III is void ab initio under Article 13(2)? What is the effect of such a judgment on actions taken or omitted to be taken during the period when the law remained operational? Whether there is a difference between a law held as unconstitutional for lack of legislative competence and a law held to be unconstitutional for violation of Part III or other constitutional limitations?, Referring to Article 20(1) of the Constitution vis‑à‑vis deprivation of immunity retrospectively and analysing the said constitutional provision, it is submitted that a conviction of an accused can take place by following the prescribed procedure starting from enquiry, investigation, trial etc. According to him, if the first stages of enquiry, investigation are not permitted unless there is a specified prior approval as there is immunity from prosecution, no conviction can take place. This immunity referring to Section 6A of the Delhi Special Police Establishment Act is entitled to protection under Article 20(1) of the Constitution. The marginal note refers to protection in respect of conviction and the phrase in respect of must be interpreted to grant protection to all the existing procedural safeguards at the time when the offence was alleged to be committed. Reliance was placed upon a judgment of this Court in the case of Prabhu Dayal Deorah versus District Magistrate., Section 6A(1) of the Delhi Special Police Establishment Act creates an immunity and grants a protection. It cannot be taken away retrospectively, either by retrospective amendment or by a judgment declaring such immunity invalid., Section 6A was declared ultra vires Article 14 of the Constitution and, as such, under Article 13(2) of the Constitution it is void to the extent of the contravention. The argument further proceeds to elaborate the meaning and scope of the word void which came up for consideration in a number of cases right from 1951 to 1963. Dr Datar has fairly submitted that this Court has held that a provision which is held to be void would be a nullity, still born or dead as if it was never in existence at all., It was next submitted that a law which has been declared to be unconstitutional could only mean that such law becomes inoperative or ineffective, once declared and not before that. The submission is that a law declared unconstitutional cannot be treated as void ab initio for the following reasons: (a) There is a presumption of constitutionality till a law is declared to contravene the provisions of Part III or other constitutional limitations, it remains valid; (b) The expression 'to the extent of contravention' implies that there has to be a judicial declaration of contravention and the extent thereof. Till such declaration is made, no law can be treated as void; (c) If there is no interim stay, the law has to be implemented and all actions taken pending final hearing will not become unlawful; (d) The word 'void' is used fourteen times in the Constitution. The use of the word 'void' in the context of the Constitution, unlike the Contract Act, only means that a judicial declaration renders a law inoperative or unenforceable; (e) The Oxford Dictionary defines the word 'void' in two ways: as an adjective, it means that something is not valid or legally binding; as a verb, it means to declare that something is not valid or legally binding; (f) A combined reading of Articles 249‑251 read with Article 254 of the Constitution shows that the word 'void' basically means invalid or inoperative; (g) The word 'void' does not mean 'repeal'; a judgment does not amend or alter the statute. It remains in the statute book but cannot be given effect to; (h) Part III includes not only express fundamental rights but several derivative rights. Therefore, it will be incorrect to treat an unconstitutional law as void ab initio., The next submission is that an administrative act, unless declared invalid, will continue to have legal effect and actions taken before the law was declared invalid would still remain protected., A large number of judgments have been referred for the proposition that declaration of invalidity and consequences that follow are two different aspects and this Court has repeatedly granted relief by protecting the actions taken during pendency of the litigation., It is also submitted that a law declared as invalid either on the ground of lack of legislative competence or for violating Part III of the Constitution or other constitutional limitations would have the same effect. No distinction can be drawn in either of the cases., It was next submitted that protection from prosecution has continued from 1969 as it was deemed necessary to ensure proper administrative function by Government officials except for brief periods when this Court had struck down the validity of the relevant clause of the Single Directive in the case of Vineet Narain and, thereafter, Section 6A of the Delhi Special Police Establishment Act in the case of Subramanian Swamy. Continuously, the legislature has been incorporating provisions in different statutes to continue to extend such protection to Government officials from unnecessary and frivolous criminal prosecutions., It was lastly submitted that the doctrines of prospective overruling and the Blackstonian theory do not apply in the present case as no previous decision has been overruled. This is a case of declaring a law as unconstitutional being violative of Part III of the Constitution., In the facts and circumstances, it was submitted that the appeal of Manjit Singh Bali deserves to be allowed., Shri Amit Desai, learned Senior Counsel also appearing for the same party made a few submissions. He placed reliance upon two judgments of this Court, namely Mohan Lal versus State of Punjab and Varinder Kumar versus State of Himachal Pradesh., Having considered the submissions advanced on behalf of the parties, the following questions require consideration: Whether Section 6A of the Delhi Special Police Establishment Act is part of procedure or it introduces a conviction or sentence? Whether Article 20(1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6A of the Delhi Special Police Establishment Act as unconstitutional? The declaration of Section 6A of the Delhi Special Police Establishment Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective effect or would apply prospectively from the date of its declaration as unconstitutional?, At the outset, it may be noted that during the course of arguments, it was made clear to the counsels that this Bench would be answering the specific question referred to it and would not be enlarging the scope of the reference made. Although learned counsels and the party in person were allowed to make their submissions and were not checked during the course of the arguments from raising points beyond the scope of the reference in order to enlarge its scope, that would not mean that the Supreme Court of India would deal with all such submissions. It was also made clear that the Bench would not be dealing with the merits of the individual cases and post answering the questions, the matters would be reverted to the regular Bench assigned of such jurisdictions for hearing and disposal., Before commencing to analyse the respective arguments and legal position on the questions so framed, a brief narration of the history of obtaining sanction before launching prosecution may be referred to. In 1969, the Central Government issued a Single Directive which is a consolidated set of instructions issued to the Central Bureau of Investigation by various Ministries/Departments and has been amended from time to time. Directive No. 4.7(3) contained instructions regarding modalities of initiating an enquiry or registering a case against certain categories of civil servants and provided for a prior sanction of the Designated Authority to initiate investigation against officers of the Government and public sector undertakings and Nationalised Banks above a certain level. The same reads as follows: \4.7(3)(i) In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent of above in the Central government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary of above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE. (ii) All cases referred to the Administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference. In respect of the officers of the rank of Secretary or Principal Secretary to Government, such references should be made by the Director, CBI to the Cabinet Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members. The Committee should dispose of all such references preferably within two months from the date of receipt of such a reference by the Cabinet Secretary. (iii) When there is any difference of opinion between the Director, CBI and the Secretary of the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or equivalent, the matters shall be referred by CBI to Secretary (Personnel) for placement before the Committee referred to in Clause (ii) above. Such a matter should be considered and disposed of by the Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel). (iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.\ The validity of the above Single Directive No. 4.7(3) was considered in the case of Vineet Narain., After considering the material placed on record, the three‑Judge Bench in the case of Vineet Narain concluded that such directive could not be held to be valid and, accordingly, struck it down. The judgment in the case of Vineet Narain was delivered on 18 December 1997., The requirement of sanction similar to Single Directive No. 4.7(3) was introduced by way of an Ordinance effective 25 August 1998 and the same lasted till 27 October 1998 when it lapsed. Thereafter, in 2003, Section 6A, akin to Single Directive No. 4.7(3), was inserted in the Delhi Special Police Establishment Act effective 11 September 2003 vide Section 26(c) of the Central Vigilance Commission Act, 2003 (Act No. 45 of 2003). The provision reads: Section 6A. Approval of Central Government to conduct inquiry or investigation. (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. (2) Notwithstanding anything contained in sub‑section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988., This Section remained on the statute book for a period of more than ten years till the judgment in the case of Subramanian Swamy was delivered on 6 May 2014, which held it to be unconstitutional as being violative of Article 14 of Part III of the Constitution., The Parliament again inserted Section 17A in the Prevention of Corruption Act, 1988 effective 26 July 2018. This provision has continued to remain in the statute book. It also provides for sanction before prosecution but without any classification of Government servants. All Government servants of whatever category, class, or level are provided protection under Section 17A of the Prevention of Corruption Act, 1988. The provision reads: 17A. Enquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. No police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed. Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person. Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month., From the above, we notice that there are small windows of a couple of years on two occasions when there was no such protection available; otherwise, right from 1969 the protection regarding sanction before prosecution has remained in force and continues as such even now., Article 20(1) of the Constitution and its applicability in the context of Section 6A of the Delhi Special Police Establishment Act. The Constitution Bench in the case of Subramanian Swamy was testing constitutional validity of Section 6A of the Delhi Special Police Establishment Act. Section 6A has two sub‑sections. Sub‑section (1) provides protection from any enquiry or investigation into any offence under the Prevention of Corruption Act, 1988 without the previous approval of the Central Government where the allegation relates to employees of the Central Government of the level of Joint Secretary and above and also such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Government. Sub‑section (2) begins with a non‑obstante clause stating that no such approval would be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988. Sub‑section (2) takes away the protection to the Government servant of the category defined in sub‑section (1) where arrest of a person is to be made on the spot on the charge of accepting or attempting to accept any gratification., The Constitution Bench held that Section 6A(1) which required approval of the Central Government to conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 was invalid and unconstitutional and in violation of Article 14 of the Constitution. As a necessary corollary, it was further declared that the provision contained in Section 26(c) of Act No. 45 of 2003 introducing the above provision was also invalid., The reference order dated 10 March 2016 required the retrospective application of the declaration by the Constitution Bench in Subramanian Swamy to be determined in the context of Article 20 of the Constitution. It would, therefore, be necessary to briefly discuss the scope of Article 20 and whether or not it would have any applicability in the context of Section 6A of the Delhi Special Police Establishment Act., Before proceeding to do that, it would be appropriate to examine whether Section 6A of the Delhi Special Police Establishment Act providing protection to certain categories of Government servants would, in any manner, amount to a conviction or sentence or it would be a purely procedural aspect. Section 6A of the Delhi Special Police Establishment Act does not lay down or introduce any conviction for any offence. It is a procedural safeguard only which is enumerated in Section 6A of the Act with regard to making of an investigation or enquiry of an offence under the Prevention of Corruption Act, 1988. Section 6A also does not lay down any sentence nor does it alter any existing sentence for an offence., There is no attempt on the part of the respondent or by Mr Datar to canvass that Section 6A of the Delhi Special Police Establishment Act is not part of procedural law and that it in any manner introduces any conviction or enhances any sentence post the commission of offence. It is, therefore, held that Section 6A of the Act is a part of the procedure only in the form of a protection to senior government servants. It does not introduce any new offence nor does it enhance the punishment or sentence., It would be useful to reproduce Article 20 of the Constitution at this stage for its proper analysis and appreciation of the arguments of the respective counsels. It reads as follows: Article 20. Protection in respect of conviction for offences. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself., In the present case we are only concerned with sub‑article (1) of Article 20 of the Constitution. Hence, we need not examine sub‑article (2). Sub‑article (1) consists of two parts. The first part prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. Sub‑article (1) does not apply to civil liability, as distinguished from punishment for a criminal offence. Further, what is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of sub‑article (1) of Article 20. It may be different, if the procedure or the trial is challengeable on account of discrimination under Article 14 of the Constitution or violation of any other fundamental right., The right under the first part of sub‑article (1) to Article 20 is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate. The Constitution Bench of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh highlighted the principle underlying the prohibition by relying upon judgment of Willes J. in Phillips v. Eyre and of the United States Supreme Court in Calder v. Bull, to hold that it would be highly unjust, unfair and in violation of human rights to punish a person under an ex post facto law for acts or omissions that were not an offence when committed., Rao Shiv Bahadur Singh observes that the language of sub‑article (1) of Article 20 of the Constitution is much wider in terms as the prohibition under the Article is not confined to the passing of validity of the law, and that fullest effect must be given to the actual words used and what they convey. Accordingly, the decision struck down Vidhya Pradesh Ordinance 48 of 1949, which though enacted on 11 September 1949, had postulated that the provisions would be deemed to have come into force in Vidhya Pradesh on 9 April 1948, a date prior to the date of commission of offences. Interpreting the term law in force, it was held that the ordinance giving retrospective effect would not fall within the meaning of the phrase law in force as used in sub‑article (1) of Article 20. The law in force must be taken to relate not to a law deemed to be in force, but factually in force, and then only it will fall within the meaning of existing law. Artifice or fiction will fall foul when they are with the intent to defeat the salutary object and purpose behind sub‑article (1) of Article 20., The aforesaid rationale and principles of interpretation equally apply to the second part of sub‑article (1) to Article 20, which states that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted on him. The sub‑article does not prohibit substitution of the penalty or sentence which is not higher or greater than the previous one or modification of rigours of criminal law., In view of the limited scope of the present controversy, we need not examine in greater detail sub‑article (1) of Article 20. The reason why we have referred to the constitutional guarantee, which protects the citizens and persons from retrospective ex post facto laws, is to affirm that our decision in no way dilutes the constitutional mandate. The issue involved in the present reference relates to a matter of procedure, and not the two aspects covered by sub‑article (1) of Article 20 of the Constitution., Learned counsel for the parties have also briefly referred to Section 6 of the General Clauses Act, 1897. It would be appropriate to reproduce the provision hereunder: Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. A plain reading indicates that the repeal of an enactment shall not affect previous operation, unless a different intention appears. It may be noted that the present case does not involve repeal or revival of any enactment but is a case where a Constitution Bench of this Court has declared a statutory provision as invalid and unconstitutional being hit by Article 14 of the Constitution. As such Section 6 of the 1897 Act will have no application., At this stage, it would be appropriate to briefly refer to the case law on the above point regarding applicability of Article 20 of the Constitution. In the case of Rao Shiv Bahadur Singh, the Constitution Bench, as far back as 1953, was dealing with the effect of Article 20(1) of the Constitution raised under two separate circumstances.
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The first being that the Supreme Court of India which recorded the conviction had been conferred jurisdiction much after the offence had taken place and at the time of the offence the forum was different. The other issue raised with regard to Article 20(1) of the Constitution was that although the offence had been committed in the months of March and April 1949, by way of an ordinance which came into force in September 1949 the laws were adopted which covered the offences for which the appellants were charged and, as such, Article 20(1) would protect them and they could not be tried for such offence which had been introduced later on., The Constitution Bench rejected the plea on both the counts. Although in the present case the concern is only with the first aspect relating to the issue of a competent court to try the offence, which is a part of the procedure and had nothing to do with conviction or sentence being introduced subsequent to the offence, the Constitution Bench held as follows: it is necessary to notice that what is prohibited under Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from that obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except insofar as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved., With respect to the second aspect also, the Constitution Bench did not find favour with the appellant and held that the State of Vindhya Pradesh had the power to frame laws being applied retrospectively and also because the said offence was already in existence and in force in the said state in 1948 itself., The Constitution Bench in the case of S.K. Ghosh (supra) was dealing with an appeal filed by the State of West Bengal assailing the correctness of the judgment of the High Court by which two Honourable Judges had allowed the appeal of the respondent S.K. Ghosh for different reasons. Mitter J. had not dealt with the applicability of Article 20(1) of the Constitution for setting aside the forfeiture proceedings. The forfeiture was set aside for the reason that there was no determination under Section 12 of the Criminal Law, 1944 Amendment vide the 1944 Ordinance, whereas Bhattacharya J. set aside the forfeiture on the ground that the 1944 Ordinance had come into force on 23.08.1944 whereas the effective period for committing the offence had ended in July., The Constitution Bench allowed the appeal of the State of West Bengal by holding that both the views taken by the respective judges were not correct., The Constitution Bench once again relied upon the earlier Constitution Bench judgment in the case of Rao Shiv Bahadur Singh (supra) and laid down that forfeiture in the said case would have nothing to do with conviction or punishment and therefore there could be no application of Article 20(1). The relevant extract from the aforesaid judgment is reproduced hereunder: We may in this connection refer to Rao Shiv Bahadur Singh v. State of Vindhya Pradesh where Article 20(1) was considered. In that case it was held that the prohibition contained in Article 20(1) of the Constitution against conviction and subjection to penalty under ex post facto laws is not confined in its operation to post‑Constitution laws but applied also to ex post facto laws passed before the Constitution in their application to pending proceedings. The Supreme Court of India further held that Article 20 prohibits only conviction or sentence under an ex post facto law, and not the trial thereof. Such trial under a procedure different from that obtained at the time of the offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. Therefore, this case shows that it is only conviction and punishment as defined in Section 53 of the Indian Penal Code which are included within Article 20(1) and a conviction under an ex post facto law or a punishment under an ex post facto law would be hit by Article 20(1); but the provisions of Section 13(3) with which we are concerned in the present appeal have nothing to do with conviction or punishment and therefore Article 20(1) in our opinion can have no application to the orders passed under Section 13(3)., In the case of Rattan Lal (supra), a three‑Judge Bench of the Supreme Court of India by a majority of 2:1 was of the view that a law made post the offence which neither creates an offence nor enhances the sentence but was a beneficial legislation for reformation of first‑time offenders, the benefit could be extended to such an accused convicted for the first time, that is, under the Probation of Offenders Act 1958, and that Article 20(1) of the Constitution will have no application., The Constitution Bench in the case of Sukumar Pyne (supra), relying upon the earlier Constitution Bench in Rao Shiv Bahadur Singh (supra), further laid down that there is no principle underlying Article 20(1) of the Constitution which makes a right to any course of procedure a vested right. The relevant extract from the judgment is reproduced hereunder: As observed by the Supreme Court of India in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular procedure except insofar as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that no person has a vested right in any course of procedure (vide Maxwell 11th Edn., p.216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Article 20 of the Constitution which makes a right to any course of procedure a vested right., In the case of G.P. Nayyar (supra), a two‑Judge Bench of the Supreme Court of India, while dealing with the effect of repeal and revival of Section 5(3) of the Prevention of Corruption Act, 1947, was of the view that Section 5(3) did not by itself lay down or introduce any offence. It was only a rule of evidence whereas the offence was provided under Section 5(1) or 5(2) of the 1947 Act. The claim of the appellant that revival of Section 5(3) by the Anti‑Corruption Laws (Amendment) Bill, 1967 retrospectively hit by Article 20(1) of the Constitution was without merit. Reliance was placed upon the earlier Constitution Bench judgment in Rao Shiv Bahadur Singh (supra) that only conviction or sentence under an ex post facto law is prohibited under Article 20(1) and would not affect the trial. The Supreme Court of India said that the appellant cannot object to a procedure different from what existed at the time of the commission of the offence by applying Article 20(1). It may be noticed that this was a judgment relating to law being amended by Parliament and not law being declared unconstitutional by a Court. The relevant extract reads: There can be no objection in law to the revival of the procedure which was in force at the time when the offence was committed. The effect of the amendment is that sub‑section (3) of Section 5 as it stood before the commencement of the 1964 Act shall apply and shall be deemed to have always applied in relation to trial of offences. If by this deeming provision a new offence was created, then the prohibition under Article 20(1) may come into operation. But in this case, as already pointed out, what is done is no more than reiterating the effect of Section 6(1) of the General Clauses Act. The learned counsel submitted that by amending procedure drastically and giving it retrospective effect, a new offence may be created retrospectively. It was contended that by shifting the burden of proof as provided for in Section 5(3) of the Prevention of Corruption Act, 1947, a new offence is created. It is unnecessary for us to consider the larger question as to whether in certain circumstances giving retrospective effect to the procedure may amount to creation of an offence retrospectively. In the present case the old procedure is revived and no new procedure is given retrospective effect. The procedure given effect to is not of such a nature as to result in the creation of a new offence., In the case of Soni Devrajbhai Babubhai (supra), the facts were that on 13.08.1986 the daughter of the appellant died. Subsequently, Section 304‑B of the Indian Penal Code was introduced through Amending Act No. 43 of 1986, which came into effect on 19 November 1986. The accused raised a plea that he could not be charged or tried under Section 304‑B because, at the time of the offence, such provision was not in existence. The Trial Court rejected the application. The High Court agreed with the accused and held that he could not be tried under Section 304‑B as it was a new offence created subsequent to the commission of the offence. The Supreme Court of India upheld the view of the High Court and rejected the contention of the complainant‑appellant., In the case of Ajay Agarwal (supra), a two‑Judge Bench of the Supreme Court of India while dealing with the provisions of Section 11B of the Securities and Exchange Board of India Act, 1992, which was inserted in 1995, held that this provision was procedural in nature and could be applied retrospectively. The Bench was of the view that any law which affects matters of procedure would apply to all actions, pending as well as future, and no procedural amendment could be said to be creating an offence. Accordingly, the Bench disagreed with the view of the Appellate Tribunal and upheld the order passed by the Chairman, SEBI, that retrospective insertion of Section 11B of the SEBI Act cannot be hit by Article 20(1) of the Constitution. The Supreme Court of India once again relied on the judgment of the Constitution Bench in the case of Rao Shiv Bahadur Singh (supra). Learned counsel Mr. Datar argued that the marginal note to Article 20 refers to protection in respect of conviction and therefore anything which may relate to or be a prerequisite for conviction should be covered by Article 20(1). He submitted that enquiry, investigation and trial are prerequisites on the basis of which the Court may ultimately arrive at a conviction, and if they are vitiated the conviction cannot be sustained. The submission was rejected as too far‑reached; Article 20(1) confines only to conviction and sentence and does not extend to procedural aspects. Change in procedure post the offence not attracting Article 20(1) has been settled law since 1953 as enunciated in the Constitution Bench judgment of Rao Shiv Bahadur Singh (supra). For the reasons recorded above it can be safely concluded that Article 20(1) has no applicability to the validity or invalidity of Section 6A of the DSPE Act., The Constitution Bench in the case of Subramanian Swamy (supra) declared Section 6A of the DSPE Act unconstitutional on the ground that it violates Article 14 of the Constitution because of the classification of government servants to which the provision applied. The invalidity of Section 6A is not on the basis of legislative incompetence or any other constitutional violation. In Vineet Narain (supra) the Supreme Court of India held that Single Directive No.4.7(3) was invalid as an administrative instruction could not interfere with the powers of the CBI conferred by statute. It was because of that declaration that Section 6A was inserted in the DSPE Act in 2003. The question for determination is whether a declaration of any law as unconstitutional by a Constitutional Court would have retrospective effect or would apply prospectively., Much emphasis has been laid on the interpretation of the word void used in Article 13(2) of the Constitution. The same word is used in Article 13(1). The Oxford Dictionary defines void as something that is not legally valid or binding when used as an adjective and, as a verb, to declare that something is not valid or legally binding. Article 13 of the Constitution has two sub‑articles: (1) All laws in force in the territory of India immediately before the commencement of this Constitution, to the extent of their inconsistency with the provisions of this Part, shall be void; and (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Under Article 13(1) all existing laws prior to the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part III, would be void to the extent of the inconsistency. Article 13(2) prohibits the State from making any law that takes away or abridges the rights conferred by Part III; such a law would be void to the extent of the contravention. In the present case, Section 6A of the DSPE Act is violative of Article 14 of Part III and therefore is void. The word void has been interpreted in a number of judgments of the Supreme Court of India from 1951 to the present and has been described as ‘non est’, ‘void ab initio’, still‑born and ‘unenforceable’., The facts in the case of Keshavan Madhava Menon (supra) were that a prosecution was launched against the appellant under the Indian Press (Emergency Powers) Act, 1931 for a publication issued without the necessary authority under Section 15(1) of that Act, making it an offence punishable under Section 18(1). The prosecution began in 1949 and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the Constitution of India came into force on 26 January 1950. The appellant objected that the provisions of the 1931 Act were ultra vires Article 19(1)(a) read with Article 13(1) and therefore void and inoperative. The High Court held that proceedings pending on the date of commencement of the Constitution would not be affected even if the 1931 Act was inconsistent with the fundamental rights, but the Act would become void under Article 13(1) only after 26 January 1950., The seven‑Judge Bench of the Supreme Court of India gave rise to three separate opinions. Justice Sudhi Ranjan Das authored the majority judgment with Chief Justice Kania, Justice M. Patanjali Sastri and Justice N. Chandrasekhara Aiyar concurring; Justice Mehar Chand Mahajan authored a separate opinion concurring with the majority; Justice Fazal Ali wrote a dissenting judgment with Justice B.K. Mukherjea agreeing. The majority agreed with the High Court view and dismissed the appeal. The majority held that Article 13(1) is entirely prospective in its operation and has no retrospective effect; it nullifies inconsistent existing laws only with respect to the exercise of fundamental rights on and after the commencement of the Constitution. It does not affect acts done before the Constitution. Justice Fazal Ali, however, observed that while Article 13(1) has no retrospective operation for past closed transactions and vested rights, it may render inchoate matters pending at the time of the Constitution’s commencement unenforceable, because a law declared completely ineffectual by the Constitution cannot be applied to pending proceedings., In the case of Behram Khurshed Pesikaka (supra), a seven‑Judge Bench of the Supreme Court of India considered the legal effect of the declaration made in State of Bombay v. F.N. Balsara whereby part of Section 13 clause (b) of the Bombay Prohibition Act (Act 25 of 1949) was declared unconstitutional. The majority held that the declaration of such provision as invalid and unconstitutional means that it is inoperative, ineffective and thus unenforceable., The Constitution Bench in the case of M.P.V. Sundararamier and Co. (supra) dealt with the validity of the Sales Tax Laws Violation Act, 1956. It observed that unconstitutionality of a statute may arise either because the law is on a matter not within the competence of the legislature or because, although within competence, its provisions offend constitutional restrictions. In a federal constitution, a law on a topic not assigned to the legislature is absolutely null and void, whereas a law within competence but repugnant to constitutional provisions is unenforceable but may become effective if the constitutional impediment is removed. Thus, a law outside legislative competence is a still‑born law, while a law declared unconstitutional is unenforceable and void to the extent of the inconsistency, as per Article 13(2)., The challenge in the case of Deep Chand (supra) concerned the validity of the Uttar Pradesh Transport Service (Development) Act, 1955. The Constitution Bench, after discussing Article 13(2), held that the prohibition in Article 13 goes to the root of the matter and limits the State’s power to make law; a law made in contravention of this prohibition is a still‑born law. Article 13(1) deals with pre‑Constitution laws and renders them void only to the extent of inconsistency with Part III, whereas Article 13(2) imposes a prohibition on the State from making any post‑Constitution law that takes away or abridges the rights conferred by Part III, making such a law a nullity from its inception., In the case of Mahendra Lal Jaini (supra), a Constitution Bench dealing with the validity of the Uttar Pradesh Land Tenures (Regulation of Transfers) Act, 1952 and the amendment of the Forests Act, 1957 analysed the difference between Article 13(1) and Article 13(2). It held that the distinction between voidness in the two sub‑articles arises from the circumstance that Article 13(1) concerns pre‑Constitutional law while Article 13(2) concerns post‑Constitutional law, but the word void in both sub‑articles makes the law ineffectual and nugatory, devoid of any legal force or binding effect. The Bench also noted that the doctrine of eclipse does not apply to post‑Constitutional laws; therefore, Section 6A of the DSPE Act, having been struck down as unconstitutional, cannot be revived by removing the illegality.
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Besides there could not be any question of an existing law being void ab initio on account of the inconsistency with Article 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Article 13(1) with respect to existing laws insofar as they were unconstitutional was only that it nullified them, and made them ineffectual and nugatory and devoid of any legal force or binding effect. The meaning of the word “void” for all practical purposes is the same in Article 13(1) as in Article 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect. But the pre‑Constitution laws could not become void from their inception on account of the application of Article 13(1). The meaning of the word “void” in Article 13(2) is also the same, viz., that the laws are ineffectual and nugatory and devoid of any legal force or binding effect, if they contravene Article 13(2)., Then comes the question as to what is the effect of an amendment of the Constitution in the two types of cases. As far as pre‑Constitution laws are concerned, the amendment of the Constitution which removes the inconsistency will result in the revival of such laws by virtue of the doctrine of eclipse, as laid down in Bhikaji Narain’s case, for the pre‑existing laws were not still‑born and would still exist though eclipsed on account of the inconsistency to govern pre‑existing matters. But in the case of post‑Constitution laws, they would be still‑born to the extent of the contravention. This distinction results in the impossibility of applying the doctrine of eclipse to post‑Constitution laws, for nothing can be revived which never had any valid existence. We are therefore of opinion that the meaning of the word “void” is the same both in Article 13(1) and Article 13(2), and that the application of the doctrine of eclipse in one case and not in the other does not depend upon giving a different meaning to the word “void” in the two parts of Article 13; it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the fact that one deals with pre‑Constitution laws and the other with post‑Constitution laws, with the result that in one case the laws being not still‑born the doctrine of eclipse will apply while in the other case the laws being still‑born there will be no scope for the application of the doctrine of eclipse., Though the two clauses form part of the same Article, there is a vital difference in the language employed in them as also in their content and scope. By the first clause the Constitution recognises the existence of certain operating laws and they are declared void to the extent of their inconsistency with fundamental rights. Had there been no such declaration, these laws would have continued to operate. Therefore, in the case of pre‑Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration; the law thus revives. However, in the case of the second clause, applicable to post‑Constitution laws, the Constitution does not recognise their existence, having been made in defiance of a prohibition to make them. Such defiance makes the law enacted void. In their case therefore there can be no revival by an amendment of the Constitution, though the bar to make the law is removed, so far as the period after the amendment is concerned., In the case of post‑Constitution laws, it would be hardly appropriate to distinguish between laws which are wholly void—for instance, those which contravene Article 31—and those which are substantially void but partly valid, for instance, laws contravening Article 19. Theoretically, the laws falling under the latter category may be valid qua non‑citizens; but that is a wholly unrealistic consideration and it seems to us that such nationally partial valid existence of the said laws on the strength of hypothetical and pedantic considerations cannot justify the application of the doctrine of eclipse to them. All post‑Constitution laws which contravene the mandatory injunction contained in the first part of Article 13(2) are void, as are the laws passed without legislative competence, and the doctrine of eclipse does not apply to them., We are therefore of opinion that the Constitution (Fourth Amendment) Act cannot be applied to the Transfer Act in this case by virtue of the doctrine of eclipse. It follows therefore that the Transfer Act is unconstitutional because it did not comply with Article 31(2), as it stood at the time it was passed. It will therefore have to be struck down, and the petitioner given a declaration in his favour accordingly., In the case of State of Manipur (supra), recently a three‑judge Bench of the Supreme Court of India was dealing with an appeal against the judgment of the Manipur High Court which had declared the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 (Manipur Act No. 10 of 2012) as well as the Repealing Act, 2018, as unconstitutional. Justice L. Nageswara Rao, speaking for the Bench, observed that where a statute is adjudged to be unconstitutional, it is as if it had never been and any law held to be unconstitutional for whatever reason, whether due to lack of legislative competence or in violation of fundamental rights, would be void ab initio., Paragraph Nos. 22 and 23 of the said judgment are reproduced hereunder: 22. Where a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made., Field, J. in Norton v. Shelby County observed that an unconstitutional act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed., 23. An unconstitutional law, be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India, is void ab initio., In Behram Khurshid Pesikaka versus State of Bombay, it was held by a constitution bench of the Supreme Court of India that the law‑making power of the State is restricted by a written fundamental law and any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. A declaration of unconstitutionality brought about by lack of legislative power as well as a declaration of unconstitutionality brought about by reason of abridgement of fundamental rights goes to the root of the power itself, making the law void in its inception., The Supreme Court of India in Deep Chand versus State of Uttar Pradesh and Others summarised the following propositions: (a) Whether the Constitution affirmatively confers power on the legislature to make laws subject‑wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power; (b) The Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (c) It follows from the premises that a law made in derogation or in excess of that power would be ab initio void., Further after discussing the law laid down by the previous pronouncements, the principles were deduced in paragraph No. 28 to state that a statute declared unconstitutional by a court of law would be still‑born and non est for all purposes. Paragraph 28 of the report is reproduced hereunder: 28. The principles that can be deduced from the law laid down by the Supreme Court of India, as referred to above, are: I. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law. II. After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes. III. In declaration of the law, the doctrine of prospective overruling can be applied by the Supreme Court of India to save past transactions under earlier decisions superseded or statutes held unconstitutional. IV. Relief can be moulded by the Supreme Court of India in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional., From the above discussion, it is crystal clear that once a law is declared to be unconstitutional, being violative of Part III of the Constitution, then it would be held to be void ab initio, still‑born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003., As indicated in the earlier part of this judgment, the Supreme Court of India has not delved into the other issues and arguments not germane to the reference order., Accordingly, the matters may be placed before the appropriate Bench to be heard and decided on merits.
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id_696
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Applicant: Salman Khurshid. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Syed Mohd. Fazal, Sri S.G. Hasnain (Senior Advocate). Counsel for Opposite Party: G.A. Honourable Dinesh Kumar Singh, J., Heard Sri S.G. Hasnain, Senior Advocate, assisted by Senior Sri Syed Mohd. Fazal and Ajay Kumar Kashyap, learned counsel for the petitioner as well as Sri Ratnendu Kumar Singh, Additional Government Advocate, and perused the record., The present application under Section 482 of the Criminal Procedure Code has been filed seeking quashing the charge‑sheet dated 06 August 2019 as well as the cognizance and summoning order dated 03 September 2019 and the proceeding of Sessions Trial No. 01 of 2019 (State versus Salman Khurshid), arising out of Case Crime No. 353 of 2019, under Sections 153A, 171G of the Indian Penal Code and Section 125 of the Representation of the People Act, 1951, Police Station Farrukhabad Kotwali, District Fatehgarh, pending in the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Farrukhabad., During the electioneering for Lok Sabha Election 2019, the petitioner made a statement in response to a question put by journalists regarding a remark by Sri Yogi Adityanath, the Chief Minister of Uttar Pradesh, in which Sri Yogi Adityanath allegedly said that the petitioner was a sympathiser of Batla House accused/terrorists. The incident referred to was an encounter in 2008 in which some terrorists were killed and one police inspector was also shot dead by the terrorists., It is said that the petitioner made an indecent remark against the Chief Minister, Sri Yogi Adityanath, which read: “Rishte me ham unke Baap Lagte hai”., Counsel for the petitioner submitted that this statement was made in a lighter vein as a famous dialogue from the movie “Shahanshah” without any intention to be disrespectful to the Chief Minister, Sri Yogi Adityanath. The petitioner had no intention to hurt or insult the feelings and sentiments of anyone, including Sri Yogi Adityanath. It was further submitted that the petitioner is a veteran politician, Senior Advocate, ex‑Member of Parliament as well as ex‑Union Cabinet Minister and enjoys a good image in society., The applicant filed a personal affidavit today in the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Farrukhabad and expressed regret on the said comment or statement. Paragraph 2 of the affidavit rendered in the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Farrukhabad reads as follows: “That it is relevant to submit herein that the statement of the deponent ‘Rishte me ham unke Baap Lagte hai’ is a popular dialogue of Shahenshah movie delivered by reputed actor Mr. Amitabh Bachchan, which had no real malafide meaning attached to it when repeated by the deponent which in totality and circumstances was on a lighter side with no intention whatsoever to have hurt anyone’s sentiment. However if any person feels hurt the deponent solemnly expresses regret.”, Once the petitioner has regretted his comments or statement and has made it clear that he never intended to hurt the feelings and sentiments of anyone or Sri Yogi Adityanath and that he made the said statement only in a lighter vein while responding to questions put by journalists, I am of the view that the impugned proceedings should be quashed. Sometimes, in a spur of the moment, a person utters something with no intention to hurt the feelings and sentiments of others, and if such a person regrets making such a statement, the Court should take a larger view of the matter and quash the proceedings. Regret is a tough but fair teacher. To live without regret is to believe you have nothing to learn, no amends to make, and no opportunity to be braver with your life., The petitioner has regretted his offending comment which means that he still has appetite to learn and be brave in life., In view of the affidavit submitted by Sri Salman Khurshid and considering the overall facts and circumstances of the case, the context in which he uttered the offending sentence, and his regret for his comment, I am of the view that the continuation of the impugned proceedings against Sri Salman Khurshid would not be justified., Thus, the present petition is allowed and the entire proceedings of Sessions Trial No. 01 of 2019 (State versus Salman Khurshid), arising out of Case Crime No. 353 of 2019, under Sections 153A, 171G of the Indian Penal Code and Section 125 of the Representation of the People Act, 1951, Police Station Farrukhabad Kotwali, District Fatehgarh, pending in the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Farrukhabad, are hereby quashed.
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Date of Decision: 19th October 2022. The matter was argued by Mr. Prithvi Singh, Mr. Prithvi Gulati and Mr. Krishna Gambhir, Advocates for the plaintiff, and by Mr. Rakesh Kumar and Mr. Birender Bhatt, Advocates for Defendant 2. The hearing was conducted in hybrid mode before Judge Prathiba M. Singh, J. (Oral)., The present suit has been filed by the plaintiff Aero Club seeking a permanent injunction restraining infringement of trademark and copyright, passing off, damages, rendition of accounts of profit, delivery up, costs and other reliefs. The plaintiff claims to be the proprietor of the mark WOODLAND and its variants, used in respect of belts and wallets manufactured, marketed and sold by the plaintiff. The marks which are the subject matter of the present suit (hereinafter, impugned marks) are depicted below: the Tree Device and the Woodland Label., Defendant No.1, Messrs. Bhawna Belt Co., and Defendant No.2, Messrs. Gun Gun Belt House, are wholesalers of belts and wallets located in Sadar Bazar, Delhi. The plaintiff alleges that the defendants were engaged in the sale of counterfeit products under the plaintiff’s mark WOODLAND., By order dated 21st December 2021, an ex parte ad interim injunction was granted in the present suit. The Delhi High Court gave careful consideration to the submissions advanced by the plaintiff, examined the plaint and other material placed on record, and is prima facie satisfied that a case for grant of an ex parte ad interim stay in favour of the plaintiff and against the defendants is made out. Accordingly, until further orders, the defendants and their proprietors, principal officers, partners, servants, representatives, affiliates, franchises, stockists, sister concerns, dealers and agents or any other persons claiming under or through them or acting in concert with them are restrained from manufacturing, offering for sale, selling, advertising, or dealing in any manner with the registered trademarks WOODLAND (word mark), the Tree Device and the Woodland Label, or any similar trademark that infringes the plaintiff’s registered trademarks, as well as from passing off their goods as emanating from the plaintiff., By order dated 29th March 2022, the plaintiff and Defendant No.2 were referred to mediation under the aegis of the Delhi High Court Mediation and Conciliation Centre., Today, senior counsel for the parties submitted that the disputes have been resolved. A settlement agreement dated 20th September 2022 between the plaintiff and Defendant No.2, Gun Gun Belt House, has been placed before the Delhi High Court. The settlement agreement also mentions the name of Defendant No.1, Bhawna Trading Co., however, the parties clarify that the settlement is only between the plaintiff and Defendant No.2., The Delhi High Court has perused the settlement agreement dated 20th September 2022 between the plaintiff and Defendant No.2. The terms of settlement are set out in paragraphs 5(i) to 5(xi) of the agreement. Under those terms, Defendant No.2 acknowledges the plaintiff’s rights and ownership in the impugned marks and is willing to suffer a permanent injunction restraining the use of the impugned marks as well as the original artistic work of the plaintiff. The agreement further records that all products bearing the impugned marks, seized by the Local Commissioner, were handed over to the plaintiff. A sum of Rs 70,000 has been paid as damages to the plaintiff by demand draft, which has been encashed., The Delhi High Court is of the opinion that the terms of settlement are lawful and there is no impediment to recording them. The plaintiff and Defendant No.2, and all others acting for or on its behalf, shall be bound by the terms of settlement. In view of the settlement between the plaintiff and Defendant No.2, the present suit is decreed against Defendant No.2 in terms of paragraphs 5(i) to 5(xi) of the settlement agreement dated 20th September 2022., Insofar as Defendant No.1 is concerned, summons have been issued in the matter by order dated 21st December 2021. A perusal of the report of the process server shows that the summons were served on one Mr. Rajesh., After the grant of the ex parte ad interim injunction by order dated 21st December 2021, a Local Commissioner was appointed to visit the premises of Defendant No.1. The commission was duly executed at the premises of Defendant No.1. A perusal of the report of the Local Commissioner dated 11th January 2022 shows that a seizure of 34 products bearing the plaintiff’s mark WOODLAND was made. The seized items were handed over to Defendant No.1 on superdari. Clearly, Defendant No.1 had complete knowledge of the present proceedings and has been duly served in accordance with law., Despite having full knowledge of the present suit proceedings, Defendant No.1 has not entered appearance. Accordingly, Defendant No.1 is proceeded against ex parte., Following the judgment in Disney Enterprises Inc. & Anr. v. Balraj Muttneja & Ors. (CS (OS) 3466/2012 decided on 20th February 2014), no ex parte evidence would be required in this matter. The same principle was reiterated by the Delhi High Court in S. Oliver Bernd Freier GMBH & Co. KG v. Jaikara Apparels and Ors. (210 (2014) DLT 381) and in United Coffee House v. Raghav Kalra and Ors. (2013 (55) PTC 414 (Del)). The relevant observations from the Disney Enterprises judgment are as follows: Though the defendants entered appearance through their counsel on 01.02.2013 but remained unrepresented thereafter and failed to file a written statement as well. The defendants were thus directed to be proceeded ex parte by order dated 04.10.2013 and the plaintiffs were permitted to file affidavits by way of ex parte evidence. The plaintiffs, despite having been granted sufficient time and several opportunities, failed to get their affidavits for leading ex parte evidence on record. However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that the Delhi High Court has held in Indian Performing Rights Society Ltd. v. Gauhati Town Club (MANU/DE/0582/2013) that where the defendant is ex parte and the material before the court is sufficient to allow the claim of the plaintiff, the time of the court should not be wasted in directing ex parte evidence to be recorded, which mostly is a repetition of the contents of the plaint., The report of the Local Commissioner in the present case clearly reveals that Defendant No.1 was involved in the sale of counterfeit WOODLAND products. The report records that the undersigned visited the premises of Defendant No.1 along with Mr. Prithvi Gulati, Mr. Devinder Singh and Mr. Satish Singh Yadav at about 1.45 p.m., where one Mr. Varun was working. On enquiry, the undersigned was informed that Mr. Ashish is the proprietor of Defendant No.1, who was called and joined the commission. The undersigned apprised him of the purpose of the visit and served a copy of the plaint, interim application and the order. He permitted the undersigned to search the premises. The premises were searched in the presence of the above‑mentioned persons and the proprietor of Defendant No.1. On searching, no infringed articles were found except empty purse boxes (17 in number), purses (5) and belt buckles (12). Counsel for the plaintiff pointed out that one sealed carton was lying there; the carton bore the name of Mr. Naveen, and the proprietor permitted it to be opened, but no goods bearing the trademark WOODLAND were found. The proprietor of Defendant No.1 was instructed not to open the seized goods or to sell or purchase the infringed goods bearing the trademark WOODLAND in any manner. He stated that he had no sale proceeds or bill books for the sale. These goods were seized and handed over to the proprietor of Defendant No.1 on superdari. Original spot proceedings, list of inventory, vakalatnama and photographs taken are enclosed for the kind perusal of the Delhi High Court., The above report of the Local Commissioner can be read in evidence in terms of Order XXVI Rule 8 of the Code of Civil Procedure. Defendant No.1, having been involved in infringing activities, the Delhi High Court is of the opinion that a permanent injunction should be granted against Defendant No.1 in terms of the reliefs sought in paragraphs 30(i) to 30(iii) of the plaint. Accordingly, Defendant No.1 and all others acting for or on its behalf are permanently restrained from manufacturing, selling, or offering for sale any products under the word mark WOODLAND, the WOODLAND label, the WOODLAND tree device mark, or any other mark that is deceptively or confusingly similar to the plaintiff’s mark WOODLAND., Insofar as the relief of rendition of accounts and damages as sought in paragraphs 30(v) and 30(vi) of the plaint is concerned, considering the quantity of infringing products seized by the Local Commissioner and the costs incurred by the plaintiff in the present proceedings, including court fees, the fee of the Local Commissioner, litigation costs, etc., Defendant No.1 shall pay a sum of Rs 5,00,000 to the plaintiff. The amount shall be paid by Defendant No.1 within three months, failing which the plaintiff is permitted to avail of its remedies in accordance with law. No other reliefs are pressed., Decree sheet be drawn in the above terms. All pending applications are also disposed of.
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It is reported that the case sought to be transferred by way of Transfer Petition No. 967 of 2020 has already been transferred to the Bombay High Court. Therefore, this Transfer Petition has become infructuous and is dismissed as such., Transfer Petition No. 968-971 of 2020 was filed for transfer of the following consumer complaints to the Bombay High Court at Mumbai: Ravinder Nath Kansal versus Yes Bank Ltd. and others, Consumer Complaint No. 228 of 2020 pending before Consumer Forum, Faridabad; Mohan Lal Nigam versus Yes Bank Ltd. and others, Case No. 183 of 2020 pending before Kanpur Nagar District Forum; R. K. Parashar versus Yes Bank Ltd., Complaint No. 171 of 2020 pending before the District Consumer Disputes Redressal Commission, Janak Puri, New Delhi; Smt. Khushbu versus Branch Manager, Yes Bank and another, Consumer Case No. 16 of 2021 pending before the District Consumer Disputes Redressal Commission, Roshanabad District, Haridwar, Uttarakhand; and Smt. Swadesh Garg versus Branch Manager, Yes Bank and another, Consumer Case No. 17 of 2021 pending before the District Consumer Disputes Redressal Commission, Roshanabad District, Haridwar, Uttarakhand. The learned counsel appearing for the parties were heard at length and it was found that the consumer complaints are filed under the Consumer Protection Act; therefore, such consumer complaints cannot be transferred to the High Court exercising jurisdiction under Article 226 of the Constitution of India. Consequently, the request for transfer of the consumer complaints is declined and the Transfer Petitions and the Interlocutory Applications are dismissed. The petitioner also sought transfer of writ petitions pending before the High Courts of Allahabad, Delhi and Madras. The said High Courts are requested to await the judgment of the Bombay High Court, which has fixed 10 February 2022 for the final hearing. The High Courts may adjourn the matters pending before them to await the order of the Bombay High Court and then proceed on the merits of the writ petitions in accordance with law. The learned counsel for the parties assured the Supreme Court of India that they will cooperate with the Bombay High Court for early and expeditious disposal of the writ petitions pending before it. Pending interlocutory applications, if any, are disposed of., New Delhi; Transfer Petitions (Civil) No. 967-971 of 2020; Date: 01-02-2022. These matters were called on for hearing today., Counsel for the parties: Mr. Shyam Divan, Senior Advocate; Mr. Anuj Berry, Advocate; Ms. Smarika Singh, Advocate; Mr. Shiv Johar, Advocate; Mr. Vinayak Chawla, Advocate; Ankur Saigal, Advocate; Ms. Neha Agarwal, Advocate; Mr. Vaibhav R. Venkatesh, Advocate; Mr. Nithyaesh Natraj, Advocate; Mr. Shivam Singh, Advocate; Mr. Jaideep Khanna, Advocate; Mr. Surendra Singh Rana, Advocate; Mr. Amit, Advocate; Mr. Ikshit Singhal, Advocate; Mr. Jeetendra Kumar, Advocate; Mr. Maneesh Saxena, Advocate; Mr. Mukesh Kumar Singh, Advocate; Mr. Sagar Kumar, Advocate; Mr. Anbarasan Nathar Paul, Advocate; Ms. Kajal Rani, Advocate; Messrs Mukesh Kumar Singh and Co., Advocate; Advocate on Record Ms. Liz Mathew; Advocate on Record Mr. Vivek Shetty; Mr. Nishant Upadhyay, Advocate; Mr. Navneet R., Advocate; Mr. Dhaval Vora, Advocate; Mr. Joby P. Varghese, Advocate on Record; Advocate on Record Mr. Aby P. Varghese; Respondent-in-person Mr. Sudhir Kumar Gupta, Advocate on Record; Advocate on Record Mr. Manish Gupta., Upon hearing the counsel, the Supreme Court of India made the following: Transfer Petition No. 967 of 2020 is dismissed as infructuous in terms of the signed order. Pending interlocutory applications, if any, are disposed of., Transfer Petition No. 968-971 of 2020: The Transfer Petitions and all pending interlocutory applications are dismissed in terms of the signed order. (Signed order is placed on the file).
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This appeal coming on for orders this day, Justice Vinay Saraf passed the following: The appellant, husband, has preferred the present appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), challenging the judgment and decree dated 3 November 2014 passed by the Fourteenth Additional District Judge, Bhopal in Revision Civil Suit No. 11/20214 whereby the petition filed by the appellant for grant of decree of divorce was dismissed., The notices of the present appeal were issued to the respondent by various modes and ultimately were ordered to be published in two newspapers having wide circulation in the area where the respondent resides, one in vernacular language and the other in English language vide order dated 7 July 2023. The notices were published in the newspaper The Eco of India, Kolkata on 14 July 2023 and in the newspaper Arthik Lipi (Bengali), Kolkata on 14 July 2023. Despite the publication of notices in two newspapers, no one appeared on behalf of the respondent on 11 September 2023, 3 October 2023, 10 October 2023, 31 October 2023, 2 January 2024 and on 3 January 2024 and consequently the matter is heard today finally in the absence of the respondent., The appellant filed an application under Section 13 of the Hindu Marriage Act for grant of decree of divorce in the court of Fourteenth Additional Sessions Judge, Bhopal on 25 March 2014 stating that the marriage was solemnised on 12 July 2006 at Village Dasaghra, Police Station Dhaniya Khali, District Hooghly, West Bengal as per Hindu rites and rituals. According to the appellant, after marriage the respondent denied cohabitation with the appellant and there was no consummation due to the denial of the respondent. It is alleged in the petition that the respondent disclosed to the appellant that her parents and relatives forced her to marry the appellant whereas she was having a love affair with her boyfriend Pintu Das and she requested the appellant to hand over her custody to said boyfriend. The respondent also denied cohabitation and ultimately the appellant left Bhopal for the United States of America on 28 July 2006 and during this period the marriage was not consummated., According to the appellant, the respondent threatened him through e‑mail that she would cut her veins and commit suicide. The respondent left the matrimonial home in September 2006 and thereafter never returned., The appellant further stated in the petition that the respondent lodged a false complaint before the National Commission for Women against the parents of the appellant and lodged a First Information Report at Police Station Dhaniya Khali, District Hooghly which was registered as Crime No. 17/2013 on 18 February 2013 against the appellant and his parents under Sections 498A and 406 of the Indian Penal Code wherein the respondent alleged that at the time of her marriage her father gave cash of Rupees three lakh with gold and silver ornaments, costly sarees, utensils etc. to the appellant and his parents to fulfil their demand of dowry and even after marriage when she was living at Bhopal a further Rupees seventy‑five thousand cash was given by her father to the parents of the appellant but she was subjected to harassment, physically and mentally tortured by her husband, father‑in‑law and mother‑in‑law and they tried to strangle her with the help of a saree and when they failed they, on 29 September 2006, put kerosene oil over her and tried to set fire but she managed to escape with the help of local neighbours and reached her parental home., It is further stated in the petition that due to the false report lodged by the respondent, the parents of the appellant remained in custody for almost twenty‑three days and in this way the respondent has treated the appellant and his parents with cruelty and deserted the appellant without any reason. It was also stated that the respondent lodged a report at Police Station Shahpura, Bhopal. Thereafter, in the settlement the respondent received Rupees ten lakh from the father of the appellant and signed the petition for divorce by mutual consent but later denied to submit the same before the competent court. In the aforesaid facts and circumstances, the appellant prayed for grant of decree of divorce by preferring the application under Section 13 of the Act before the trial court., The trial court issued summons of the petition to the respondent through registered post but the respondent remained absent; therefore, the trial court proceeded ex parte against the respondent by order dated 20 August 2014 and after recording the statement of the appellant and his father passed the impugned judgment and decree on 3 November 2014 whereby the application preferred by the appellant was dismissed on the ground that the appellant failed to prove any of the grounds available in the Act for grant of decree of divorce., In the present appeal, the appellant appeared in person and vehemently argued that the learned trial court committed error in law and fact in not granting the decree of divorce despite the evidence on record that since 2006 the appellant and respondent have been living separately and the marriage was not consummated for a single day. According to the appellant, the learned trial court ought to have granted the decree of divorce on the ground of cruelty as the appellant produced documentary evidence to establish the allegation of lodging the false report against the appellant and his parents by the respondent. The appellant further argued that order sheets were available on record to demonstrate that the parents of the appellant remained in custody for twenty‑three days due to the false report lodged by the respondent; however, upon query regarding the result of the criminal case, the appellant accepted that the criminal case is still pending. When the criminal case is pending and has not culminated in acquittal of the appellant and his parents, it cannot be accepted that the appellant and his parents were arrested on the basis of the false report. The learned trial court has not committed any error in holding that as the criminal case is still pending, no decree of divorce can be granted on the ground that by lodging a false report the respondent has committed cruelty with the appellant and his parents., According to the appellant himself, after the marriage he reached Bhopal on 23 July 2006 and thereafter left Bhopal on 28 July 2006 for the United States of America; therefore, the allegation of desertion of the appellant by the respondent/wife has no merit. The same cannot be accepted because the wife was left at the matrimonial home by the appellant and the appellant had not made any arrangement for taking her to the United States of America., According to the report lodged by the respondent, she was subjected to cruelty by the appellant and his parents and they tried to kill her; therefore, she left the matrimonial home and in the aforesaid circumstances it cannot be accepted that the respondent/wife has deserted the appellant/husband without any reason and the findings of the learned trial court in respect of the ground of desertion are based on due appreciation of evidence and do not require any interference by Supreme Court of India., It is alleged by the appellant in the petition as well as in the memorandum of appeal that the wife was having a boyfriend and she was forced to marry the appellant by her parents and relatives and she requested the appellant to hand over her custody to her boyfriend. Though the said allegation could not be proved by adducing any cogent evidence, it cannot be a ground for decree of divorce under Section 13 of the Act. It is not the case of the appellant that the respondent/wife had physical relations with any person other than her husband and therefore, merely levelling the allegation that the respondent/wife was having a boyfriend does not warrant a decree of divorce. The learned trial court has not committed any error in declining to grant decree on the said allegation., It is further alleged by the appellant that when the respondent lodged a report at Police Station Dhaniya Khali, District Hooghly, both parties entered into a compromise and in the settlement on 13 July 2013 all the articles of stridhan/jewellery, gold and silver items were handed over to the respondent/wife and they entered into the settlement for payment of permanent alimony of Rupees ten lakh in lieu of dissolution of marriage. Rupees one lakh was paid in cash on 13 July 2013 itself and thereafter Rupees one lakh in cash and Rupees four lakh through cheques were paid to the respondent/wife on 21 July 2023 and she signed the petition for divorce under Section 13B of the Act for submitting it before the District Judge, Chinsurah, Hooghly but the same was not filed. As the appellant has already paid the settlement amount, the appellant is entitled to decree of divorce., Before the learned trial court, no evidence was produced to establish the payment of the cheques of Rupees four lakh; however, before Supreme Court of India, without filing any application for considering the documents as additional evidence, the copy of the passbook was placed on record which shows that the cheques of Rupees four lakh were cleared., On the basis of the settlement, a decree of divorce can be passed only when both parties are present before the Court and they confirm the settlement and jointly pray for grant of decree of divorce by mutual consent. In the present case, though the appellant has submitted that he entered into a settlement with the respondent and paid the settlement amount in full, neither any petition under Section 13B of the Act was filed nor the respondent was present before the Court to confirm the factum of settlement; therefore, the learned trial court has not committed any error in refusing to grant decree of divorce on the ground of settlement., The appellant has further argued that the appellant and respondent have been living separately since 2006, they were not having any physical relationship, there is no hope of cohabitation in future, the allegations levelled by the respondent against the appellant and his parents were reckless, defamatory and false and in view of the facts and circumstances of the present case, it is evident that the marriage has been broken down irretrievably and it is just and proper to grant the decree of divorce. The decree of divorce can be granted on any of the grounds enumerated in Section 13 of the Act. Section 13 does not provide any ground for grant of decree of divorce in a situation of irretrievable breakdown of marriage; therefore, no decree of divorce can be granted by accepting the appellant’s argument that the marriage has been broken down irretrievably., Lastly, the appellant raised the issue of denial of cohabitation by the respondent without any reason and submitted that since the date of marriage i.e. 12 July 2006 till he left India, he tried to consummate the marriage but every time the respondent denied cohabitation without any reason and due to denial of the respondent-wife, the marriage could not be consummated. The appellant submitted that after the marriage when they were in West Bengal, the wife denied physical intimacy on the ground that when she reached her matrimonial home they would start their life as husband and wife; however, after reaching Bhopal the respondent-wife did not permit the appellant-husband to make any physical relation and lastly when both of them visited Delhi from where the appellant departed for the United States of America, the wife again refused to consummate the marriage. According to the appellant, he had to leave India for higher education without consummation of marriage due to continuous denial of the respondent-wife and thus the same caused mental cruelty to the appellant., The non‑consummation of marriage and denial of physical intimacy amounts to mental cruelty. This allegation of the appellant‑husband remained unrebutted as the respondent‑wife did not appear before the trial court and did not file any reply to the petition filed by the appellant. The appellant narrated the fact of mental cruelty on account of non‑consummation of marriage in his affidavit of chief‑examination filed under Order 18 Rule 4 of the Code of Civil Procedure and the same could not be controverted in the absence of the respondent. The fact pleaded and stated in chief‑examination in the absence of any rebuttal can be accepted as proved. Accordingly, the allegation of mental cruelty levelled by the appellant‑husband on account of denial by the respondent‑wife for physical intimacy was proved and the learned trial court ought to have considered the same at the time of passing the impugned judgment., The Supreme Court in Samer Ghosh v. Jaya Ghosh reported several illustrations enumerated from instances for human behaviour which may be relevant in dealing with cases of mental cruelty. Illustration No. XII is reproduced below: “(xii) Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”, We understand that unilateral refusal to have sexual intercourse for a considerable period without any physical incapacity or valid reason can amount to mental cruelty. In the present matter, it is specifically alleged by the appellant in the petition and stated in the affidavit that the respondent denied consummation of marriage from the date of marriage till he left India and the marriage was never consummated, due to unilateral decision of the respondent to refuse sexual intercourse for a considerable period without any valid reason. In the absence of any contrary version or any rebuttal on the part of the respondent, the statement of the appellant cannot be discarded and has to be accepted as it is., We are clear that the pleading of facts regarding non‑consummation and denial of physical intimacy by the respondent were in the petition and the respondent had notice of the petitioner’s case but chose to remain absent. The Apex Court in Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632 held that non‑appearance of the respondent‑wife in a case filed by the appellant‑husband for divorce itself amounts to cruelty. The relevant paragraph of that judgment is: “The respondent, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance. In spite of service of notice, the respondent did not show any interest to appear in this Court also. This conduct of the respondent by itself would indicate that she is not interested in living with the appellant. Refusal to participate in proceedings for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty.”, In view of the aforesaid, we are unable to accept the findings of the trial court on the issue of absence of consummation of marriage or physical intimacy. The trial court wrongly held that failure on the part of the wife to consummate the marriage cannot be a ground for divorce whereas in the case of Samer Ghosh (supra) the Apex Court accepted the said act of the wife as mental cruelty. There can never be any straight‑jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case is to evaluate it on its peculiar facts and circumstances while taking the relevant factors into consideration. The appellant solemnised the marriage. It was already decided that he would leave India in a short period. During this period the appellant was hopeful to consummate the marriage but the same was denied by the respondent and certainly the said act of the respondent amounts to mental cruelty. The ground of divorce enumerated in Clause (i‑a) under Section 13(1) is made out. The appellant is entitled to the decree of divorce., The impugned judgment is set aside. We hold that the ground under Clause (i‑a) of Section 13(1) of the Act is proved by the appellant/husband. The marriage solemnised on 12 July 2006 is hereby dissolved by the decree of divorce. Accordingly, the appeal is allowed with costs., The Office is directed to draw up the decree. The record of the trial court be sent back along with the copy of the judgment and decree.
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Supreme Court of India (Video Conferencing) Writ Petition (Criminal) No. 45/2022 Date: 11-02-2022. The petition was called on for hearing today. For the petitioner: Ms. Anu Gupta, Advocate on Record Mr. Sanjay Mani Tripathi. For the respondent(s):, Application for exemption from filing original Vakalatnama or other document is allowed. We have heard learned counsel for the petitioner at some length. We are not persuaded on the issue that the minority view in a judgment of this Court in Union of India v. V. Sriharan (2016) 7 SCC 1 should be looked into as two of the judges opined one way in the Constitution Bench. Once the majority opines in a particular matter, that is the judgment of the Constitution Bench which says that there can be imposition of life imprisonment without any remission till the last breath as a substitution of death sentence. We thus reject that argument., We now turn to the only other plea raised that the petitioner was a juvenile at that stage of time. The reference to the impugned judgment says that it has been found that the accused Ravindra was 22 years of age at the time of the judgment. When asked what is the basis for the plea that he was 17 years of age at the time of the incident, learned counsel submits that the same is recorded in the order passed based on a Section 313, Criminal Procedure Code statement but possibly no further investigation took place in this behalf as, at that time, the age of juvenility was 16 years. Learned counsel for the petitioner says that the plea of juvenility can be raised at any time. That being the position, we put a question to the counsel as to what is the material on record to show that the petitioner was about 17 years of age at the relevant time., Learned counsel states that she will have to obtain material in this behalf and thus would need the help of the petitioner who really does not have a family and thus makes a prayer for parole for four weeks for the petitioner to make a search for the documents. Notice limited to the aforesaid aspect returnable in four weeks. A copy of the order to accompany the notice.
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Manoranjan Santosh Roy, age 48 years, occupation: Tax Volunteer, Indian inhabitant of Mumbai, residing at Room No. 115, Rui Park, Mora Village, J. R. Mhatre Road, Juhu, Mumbai 400049, is the petitioner. The Union of India through the Finance Minister, address: Chief Secretary, North Block, New Delhi 110001, is a respondent. The Director General of Central Economic Intelligence Bureau, address: Sixth Floor, B Wing, Janpath Bhavan, New Delhi 110001, is a respondent. The State of Maharashtra through the Home Ministry, Mantralaya, Mumbai 032, is a respondent., Mr. Shashikant Chaudhari and Mr. Pranot Pawar in behalf of the petitioner, and Mr. H. S. Venegaonkar for Respondent No.1, and Mrs. M. H. Mhatre, Assistant Public Prosecutor for the Respondent State, appeared. The petition was reserved on 22nd August 2023 and pronounced on 8th September 2023. The rule was made returnable forthwith and taken up for final hearing with the consent of the parties., The petitioner invokes the writ jurisdiction of the Supreme Court of India under Articles 226 and 227 of the Constitution of India and seeks a writ of mandamus or any other writ, order or directions to constitute an independent investigation agency, or for the Supreme Court of India to suo motu appoint such an agency to investigate the complaint dated 30 November 2018 filed by the petitioner., The petition sets out numerical data extracted from Reserve Bank of India annual reports and information received under the Right to Information Act, which the petitioner alleges constitute wrongful activity demanding investigation. The petitioner claims that the Governor of the Reserve Bank of India and the Chief General Manager of the Reserve Bank of India, in connivance, did not follow proper procedures and facilitated the exchange of unaccounted old currency notes of Rs.500 and Rs.1,000 during the demonetisation of 2016 with the help of the National Bank for Agriculture and Rural Development., The petitioner previously filed a public interest litigation, PIL No.85 of 2015, raising the issue of illegal currency in circulation, which was dismissed by the Supreme Court of India on 23 September 2016, and the review petition was also dismissed. The petitioner alleges that, according to the RBI annual report for 2016‑2018, the legal tender of bank notes of Rs.500 and Rs.1,000 in circulation was less than the figure received after demonetisation, indicating excess illegal notes amounting to Rs.1,166,500,000,000 (Rupees One Trillion One Hundred Sixty‑Six Billion Five Hundred Million). The petitioner further alleges that the RBI supplied 10,400 million pieces of Rs.1,000 notes from 2000‑2016, but disposed of 11,222 million pieces, resulting in an excess disposal of 822 million pieces valued at Rs.822,000,000,000 (Rupees Eight Hundred Twenty‑Two Billion). Similarly, for Rs.500 notes, the RBI received 37,523.292 million pieces but disposed of 39,875 million pieces, an excess of 2,351.708 million pieces valued at Rs.1,175,540,000,000 (Rupees One Trillion One Hundred Seventy‑Five Billion Eight Hundred Fifty‑Four Million). The petitioner calculates that the total notes in public circulation should have been 59,585.019 million pieces, but the RBI March 2018 report shows 102,395 million pieces, an excess of 42,809.981 million pieces., The petitioner states that during demonetisation the amount received by the RBI was Rs.1,114,950,000,000,000 (Rupees Eleven Trillion One Hundred Forty‑Nine Billion Five Hundred Million), whereas the RBI press release of 13 December 2016 shows Rs.1,244,000,000,000,000 (Rupees Twelve Trillion Four Hundred Forty Billion), an excess of Rs.1,290,500,000,000,000 (Rupees One Trillion Two Hundred Ninety Billion Five Hundred). The petitioner also notes a discrepancy in the new denomination Rs.2,000 notes: the RBI annual report shows Rs.32,850,000,000 (Rupees Thirty‑Two Billion Eight Hundred Fifty Million) while the press release shows Rs.1,700,000,000 (Rupees One Billion Seven Hundred Million), a difference of Rs.1,585,000,000 (Rupees One Billion Five Hundred Eighty‑Five Million). The press release by the Finance Minister states that the RBI received Rs.15.28 Trillion at the time of demonetisation, whereas RBI reports only Rs.14.12 Trillion., The petitioner further alleges that the RBI March 2018 annual report shows old Rs.500 (MG series) notes in circulation as 15,469 million pieces, while the supply of new design notes by two printing presses from April 2017 to March 2018 was 16,953 million pieces, indicating a shortfall. The petitioner claims that the Nashik Currency Note Press printed 375.40 million pieces of Rs.500 notes between April 2015 and December 2016, but supplied only 345.00 million pieces to the RBI, and that the press reported printing 472.061 million pieces of Rs.500 MG‑series notes during April 2015 to March 2016, suggesting irregularities., The petitioner contends that illegal currency was deposited by illegal businessmen in collusion with bank officers and bureaucrats, converting unaccounted old currency into new currency. Information obtained under the Right to Information Act from about twenty nationalised banks showed that only eight banks replied, and that substantial old notes of Rs.500 and Rs.1,000 were deposited within four days (10‑14 November 2016). The petitioner questions how such a large amount could be deposited in a short span and seeks thorough investigation., The petitioner lodged a complaint dated 30 November 2018 with the Central Economic Intelligence Bureau, annexing copies of RBI annual reports, Right to Information responses and press releases. No response was received, leading to the filing of the present petition on 25 January 2019., Mr. Chaudhari, learned counsel for the petitioner, submitted that the Supreme Court of India in Vivek Narayan Sharma v. Union of India [(2023) 3 SCC 1] upheld the validity of the notification dated 8 November 2016 issued under subsection (2) of section 26 of the Reserve Bank of India Act, finding no flaw in the decision‑making process and satisfying the test of proportionality. He argued that the present petition seeks investigation into matters different from those considered in that case, namely discrepancies in note supply, circulation and amounts received during demonetisation, and does not seek relief against the Governor of the RBI or the Finance Minister., The Court queried whether the petition contains pleading of different data; counsel admitted there is no such pleading. On further query, counsel identified the offences alleged in the 30 November 2018 complaint as sections 409, 420 and 120‑B of the Indian Penal Code, 1860., Mr. Venegaonkar, learned counsel for Respondent No.1, submitted that the reliefs sought were already raised in PIL No.85 of 2015, which was dismissed, invoking the doctrine of res judicata. He argued that the 30 November 2018 representation does not demonstrate any criminality and that an investigation into policy decisions is not permissible., Mrs. M. H. Mhatre, Assistant Public Prosecutor for the Respondent State, adopted the submissions of Mr. Venegaonkar., In rejoinder, Mr. Chaudhari submitted that the petitioner is not challenging the policy decision, which has already been adjudicated by the Supreme Court of India., The Court considered the submissions and the papers. It noted that the petition alleges specific wrongdoing by the Governor and Chief General Manager of the RBI, but the petitioner claims no relief against them, only against unknown persons. The Court observed that the earlier PIL sought similar investigation and was dismissed for lack of public interest, and that the petitioner has not demonstrated authority to represent a large number of citizens., The Court observed that the petitioner invoked the criminal jurisdiction of the Supreme Court of India seeking investigation into a purported scam based on RBI data and Right to Information responses. The alleged discrepancies are summarised as: (a) excess disposal of Rs.1,000 and Rs.500 notes; (b) excess amount received by RBI during demonetisation; (c) discrepancy in Rs.2,000 notes issued till March 2017; (d) mismatch between old Rs.500 notes in circulation and new notes supplied; (e) irregularities in Rs.500 notes printed by Nashik Currency Note Press., The Court referred to the Supreme Court of India's decision in Vivek Narayan Sharma, which upheld the 8 November 2016 notification and affirmed the RBI's statutory role under Section 26(2) of the RBI Act. The Court noted that the RBI is the sole repository of power for currency management and that policy decisions are presumed bona fide unless proven otherwise., The Court analyzed the applicability of sections 409, 420 and 120‑B of the Indian Penal Code. It held that section 409 requires entrustment of property to a public servant or banker, which is absent in the present allegations. Section 420 requires cheating and dishonest inducement, which would amount to a challenge to the 8 November 2016 notification, already upheld. Therefore, both sections are inapplicable. Section 120‑B concerning criminal conspiracy also lacks factual basis., The Court concluded that the petitioner has not produced an independent financial expert report linking the numerical discrepancies to any offence. The petition is deemed a fishing inquiry without substantive evidence of criminality. Consequently, the petition is dismissed with costs., The Court orders exemplary costs against the petitioner but, at the request of Mr. Chaudhari, refrains from imposing them.
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Case: WRIT - C No. 22016 of 2023. Petitioner: Ms X. Respondent: State of Uttar Pradesh and four others. Counsel for Petitioner: Raghav Arora. Counsel for Respondents: Chief Standing Counsel. Hon'ble Justice Mahesh Chandra Tripathi, Allahabad High Court. Hon'ble Justice Prashant Kumar, Allahabad High Court. Learned counsel for the petitioner is permitted to implead the Vice Chancellor, Aligarh Muslim University, Aligarh forthwith., The matter was heard by Sri Raghav Arora, learned counsel for the petitioner, and Sri Ambrish Shukla, learned Additional Chief Standing Counsel for the State respondents. The petitioner, a minor, has approached the Allahabad High Court through her mother under Article 226 of the Constitution of India, praying for issuance of directions by way of a writ of mandamus to the respondents to conduct medical termination of her pregnancy under the Medical Termination of Pregnancy Act, 1971, as amended in 2021., The petitioner is a twelve‑year‑old minor girl who was subjected to rape and sexual assault multiple times by her neighbour. She is deaf and mute and cannot speak or listen. Her educational certificate shows a date of birth of 17‑04‑2011. Her disability certificate records an 84 % disability. The mother, a labourer, is in serious financial distress after the death of the petitioner’s father. On 15‑06‑2023 the mother learned of the sexual assault; the petitioner communicated in sign language that she had been raped on multiple occasions. An FIR was lodged as Case Crime No. 457/2023 under Sections 376 and 354C of the Indian Penal Code and Sections 3, 4, 7 and 8 of the Protection of Children from Sexual Offences Act, Police Station Khurja Nagar, District Bulandshahr, on 15‑06‑2023. A medical examination on 16‑06‑2023 found the petitioner to be 23 weeks pregnant., On 26‑06‑2023 the mother moved a representation before the concerned authority requesting termination of the pregnancy. The representation was forwarded to the Chief Medical Officer, District Bulandshahr, who constituted a Medical Board on 27‑06‑2023. The Medical Board, in its report dated 30‑06‑2023, noted that an ultrasound on 28‑06‑2023 showed a pregnancy of 25 weeks and two days, severe anaemia, and that the gestation had exceeded the 24‑week limit prescribed in the Medical Termination of Pregnancy Rules, 2021. Consequently, the Board opined that permission from the court would be required to terminate the pregnancy. The report is annexed as Annexure No. 6 to the writ petition., Counsel for the petitioner submitted that the petitioner is a twelve‑year‑old deaf and mute girl. The mother requested the court, considering the miserable situation, age and medical condition of her daughter, that the pregnancy not be continued. The Medical Board, however, opined on 30‑06‑2023 that the pregnancy was beyond the permissible gestational age limit under the Medical Termination of Pregnancy Act, 1971, and advised approaching the Allahabad High Court for judicial intervention. The petitioner seeks: (i) a writ of mandamus directing the respondent authorities to terminate the unwanted pregnancy resulting from rape, after making necessary arrangements; (ii) a writ directing the respondent authorities to bear all expenses, including ambulance, hospital bills and medicines, incurred in the termination; (iii) any other order the Allahabad High Court may deem fit; and (iv) costs of the writ petition., In support of the petition, counsel relied on the decision in Venkatalakshmi v. State of Karnataka, Civil Appeal No. 15378/2017 dated 21‑09‑2017, where the Supreme Court of India allowed termination of pregnancy of a rape victim beyond the gestational age of 24 weeks. The order stated that the victim, a 17‑year‑old, was a survivor of rape, expressed remorse and wished to terminate the pregnancy, and that the State would bear all expenses for the operation, medicines, food and preservation of the foetus for DNA testing. The order also directed the competent authority to admit the patient and ensure proper steps for termination., Counsel further relied on judgments of the Delhi High Court in W.P. (CRL) 221/2023 (Minor R The Mother vs. State of National Capital Territory of Delhi & another) decided on 25‑01‑2023 and W.P. (C) No. 5112/2023 (GDN vs. Government of National Capital Territory of Delhi) decided on 28‑04‑2023., The issue before the Allahabad High Court is whether, under the facts and circumstances, a twelve‑year‑old rape victim who is deaf and mute and carrying a pregnancy of more than 24 weeks can be permitted to terminate the pregnancy., Section 3 of the Medical Termination of Pregnancy Act reads: \When pregnancies may be terminated by registered medical practitioners. (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence ... if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub‑section (4), a pregnancy may be terminated by a registered medical practitioner, (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty‑four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. Explanation 1 ... Explanation 2 ... (2A) ... (2B) ... (2C) ... (2D) ... (3) ... (4) (a) No pregnancy of a woman who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.\, The Medical Termination of Pregnancy Rules, 2003 (as amended by the Medical Termination of Pregnancy (Amendment) Rules, 2021), prescribe seven categories of women eligible for termination of pregnancy up to twenty‑four weeks, including survivors of sexual assault or rape and minors. The petitioner falls within both categories, being a minor and a survivor of rape, and therefore qualifies under the special categories enumerated by the Central Government., Explanation 2 to the provision explicitly provides that where pregnancy is alleged to have been caused by an act of rape, the anguish caused by such pregnancy shall be presumed to constitute grave injury to the mental health of the pregnant woman, as required under Section 3(2)(i) of the Act. Hence, for a minor victim who has been sexually assaulted and consequently conceived, the injury to her mental health is presumed statutorily., The question before the Allahabad High Court now is whether, using its extraordinary powers under Article 226, it should allow termination of the pregnancy of the minor victim at approximately twenty‑five weeks of gestation., During the hearing, counsel for the petitioner submitted that the pregnancy exceeds twenty‑five weeks and requires proper facilities. Adequate medical facilities are available at Jawahar Lal Medical College, Aligarh, which is affiliated to Aligarh Muslim University, where the termination may be performed under the guidance of medical experts., The Allahabad High Court called Sri Shashank Shekhar Singh, Advocate representing Aligarh Muslim University, for necessary assistance., Under similar circumstances, the Supreme Court of India in Venkatalakshmi v. State of Karnataka and the Delhi High Court in Minor R The Mother vs. State of National Capital Territory of Delhi & another and GDN vs. Government of National Capital Territory of Delhi have allowed termination of pregnancies beyond twenty‑four weeks in cases of rape victims., Although the statute does not provide for termination of pregnancies over twenty‑four weeks except in cases of substantial foetal abnormalities (Section 3(2B) of the Act), the extraordinary powers of the constitutional courts have been recognized by the Supreme Court of India and exercised by High Courts to allow termination even when the gestation exceeds the statutory limit., In cases of sexual assault, denying a woman the right to refuse medical termination and forcing her into motherhood would amount to a denial of her human right to live with dignity, as she has the right to decide about her own body, including saying yes or no to motherhood. Section 3(2) of the Act reiterates this right. Forcing the victim to give birth to a child of the person who assaulted her would result in unexplainable miseries., Considering the urgency and taking a humanitarian view, the Vice Chancellor, Aligarh Muslim University, is directed to instruct the Principal of Jawahar Lal Medical College, Aligarh to constitute a five‑member team headed by the Departments of Obstetrics & Gynecology, Anaesthesia and Radiodiagnosis to examine the petitioner on 11‑07‑2023 and submit a report in sealed cover to the Allahabad High Court on 12‑07‑2023 through Sri Shashank Shekhar Singh, counsel for Aligarh Muslim University., The District Magistrate, Bulandshahr, is directed to ensure that the victim and her mother appear before the Medical Board on 11‑07‑2023 at 10:00 a.m., The matter is to be listed again as fresh on 12‑07‑2023 at 2:00 p.m., A copy of this order shall be given to counsel for the petitioner, Sri Ambrish Shukla, Additional Chief Standing Counsel, and to Sri Shashank Shekhar Singh, counsel for Aligarh Muslim University, free of cost, for compliance.
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Saurav Das (Petitioner) versus Union of India & Ors. (Respondents). By way of this petition under Article 32 of the Constitution of India the petitioner has prayed for appropriate directions/orders directing the respondents, the States, to enable free public access to chargesheets and final reports filed as per Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of Criminal Procedure) on their websites., Shri Prashant Bhushan, learned counsel appearing on behalf of the petitioner, has heavily relied upon the decision of the Supreme Court of India in Youth Bar Association of India v. Union of India, (2016) 9 SCC 473, by which the Supreme Court of India directed copies of FIRs to be published within 24 hours of their registration on the police websites or on the websites of the State Governments. It is submitted that while the direction to publish copies of FIRs has induced transparency in the working of the criminal justice system, the logic of disclosure applies more strongly to chargesheets, for FIRs are based on unsubstantiated allegations whereas chargesheets are filed after due investigation. Shri Prashant Bhushan has taken the Court to the Scheme of the Code of Criminal Procedure, particularly Sections 207, 173(4) and 173(5), and submits that when a duty is cast upon the investigating agency to furnish the copy of the challans or charge‑sheets along with all other documents to the accused, the same should also be in the public domain to ensure transparency. He also submits that the chargesheet becomes a public document once filed in the Supreme Court of India, relying on Sections 74 and 76 of the Indian Evidence Act, and that under Section 4(2) of the Right to Information Act a duty is cast upon the public officer or public authority to provide as much information suo motu to the public at regular intervals through various means of communication and to provide as much information as mentioned in Section 4(1)(b) of the Right to Information Act., The Honourable Supreme Court of India has heard Shri Prashant Bhushan, learned counsel appearing on behalf of the petitioner, at length., At the outset, it is required to be noted that by way of the present writ petition under Article 32 of the Constitution of India, the petitioner, by way of public interest litigation, has prayed for an appropriate direction/order directing all the States in the country to enable free public access to chargesheets and final reports filed as per Section 173 of the Code of Criminal Procedure on their websites. Heavy reliance is placed on the decision of the Supreme Court of India in Youth Bar Association of India (supra). On going through that decision, the reliance placed upon it by the counsel for the petitioner is thoroughly misconceived and misplaced. In that decision the Supreme Court of India directed that copies of FIRs should be published within 24 hours of their registration on the police websites or on the websites of the State Government, looking to the interest of the accused so that innocent accused are not harassed and can obtain relief from the competent court without being taken by surprise. Therefore, the directions issued by the Supreme Court of India are in favour of the accused and cannot be extended to the public at large with respect to chargesheets., The relief sought in the present writ petition directing that all the challans or chargesheets filed under Section 173 of the Code of Criminal Procedure shall be put in the public domain or on the websites of the State Governments is contrary to the Scheme of the Code of Criminal Procedure. As per Section 207 of the Code of Criminal Procedure a duty is cast upon the investigating officer to supply to the accused the copy of the police report and other documents including the First Information Report recorded under Section 154 and the statements recorded under sub‑section 3 of Section 161. As per sub‑section 173(4) of the Code of Criminal Procedure a duty is cast upon the investigating agency to furnish, free of cost, a copy of the report forwarded under sub‑section (1) to the accused, together with the First Information Report and all other documents or relevant extracts on which the prosecution proposes to rely, including statements and confessions recorded under Section 164 and statements recorded under sub‑section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses. Section 173(5) provides that when any report is filed in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report all documents or relevant extracts on which the prosecution proposes to rely, other than those already sent to the Magistrate during investigation. Consequently, on a conjoint reading of Sections 173 and 207, the investigating agency is required to furnish the copies of the report and relevant documents only to the accused and to no others. Allowing the relief sought would be contrary to the Scheme of the Code of Criminal Procedure and may violate the rights of the accused, the victim, and the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets and related documents on the public domain., The reliance placed upon Sections 74 and 76 of the Indian Evidence Act is also absolutely misconceived and misplaced. Documents mentioned in Section 74 can be said to be public documents, the certified copies of which are to be given by the concerned police officer having custody of such a public document. A copy of the chargesheet along with the necessary documents cannot be said to be a public document within the definition of public documents under Section 74. As per Section 75 of the Indian Evidence Act, all other documents not mentioned in Section 74 are private documents. Therefore, the chargesheet and its accompanying documents are not public documents under Section 74, and reliance on Sections 74 and 76 is misplaced., The reliance placed upon Section 4 of the Right to Information Act is likewise misconceived. Under Section 4(2) of the Right to Information Act a duty is cast upon the public authority to take steps in accordance with the requirements of clause (b) of sub‑section (1) of Section 4 to provide as much information suo motu to the public at regular intervals through various means of communication. Copies of the chargesheet and the relevant documents do not fall within Section 4(1)(b) of the Right to Information Act. Accordingly, the reliance upon Section 4(1)(2) of the Right to Information Act is also misplaced., In view of the foregoing, the petitioner is not entitled to the relief sought, namely directing all the States to put on their websites the copies of all the chargesheets or challans filed under Section 173 of the Code of Criminal Procedure. The present writ petition lacks merit and is dismissed.
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Date: 14-02-2024. This petition was called on for hearing today. For the petitioner: Mister S.V. Raju, Additional Solicitor General; Mister Annam Venkatesh, Advocate; Mister Zoheb Hussain, Advocate; Miss Swati Ghildiyal, Advocate; Miss Munisha Anand, Advocate; Mister Mukesh Kumar Maroria, Advocate on Record. For the respondent: Diary No. 51357/2023., Upon hearing the counsel, the Supreme Court of India made the following: The petitioner seeks transfer of cases, which are pending trial at various courts within the State of West Bengal, to any other place outside the State. The Additional Solicitor General submits that the officers, officials, complainants, advocates and witnesses are being openly threatened and intimidated, thus obstructing and impeding the cause and course of justice. Despite the matter being brought to the notice of the authorities, no action at the ground level appears to have been taken., Specific attention is invited to the complaint dated 13 July 2022 made by the petitioner’s lawyer, pointing out that even he is being threatened. Also attention is invited to the averments made in the petition (pages 429 and 443 (XXVII) and (XXVIII)) preferred by the petitioner before the High Court of Calcutta., The Additional Solicitor General emphatically invites the attention of this Supreme Court of India to the recommendation of the report of the enquiry committee dated 12 July 2021 prepared by the National Human Rights Commission, categorically recommending that the trial of all cases investigated by the Central Bureau of Investigation be held outside the State of West Bengal., In view of the attending facts and circumstances, having perused the material placed on record and accounting for the nature of cases and the allegations made therein, issue notice to each one of the respondents arrayed as parties in the instant petition. Steps for service shall be positively taken, as prayed for, within one week. Notice shall be returnable on 11 March 2024. Respondents, as prayed for, shall be served dasti as also through the concerned police station. The Standing Counsel for the State of West Bengal shall also be served., The Additional Solicitor General states that in addition to normal service, private respondents shall also be served by way of paper publication in the local daily newspaper, widely circulated within the State of West Bengal. Ordered accordingly., The Director General of Police, West Bengal is directed to ensure compliance of the order and also file his personal affidavit reporting compliance. In the meanwhile, further proceedings of the trial referred to in the prayer clause at page 58 onwards of the instant petition shall remain stayed. As prayed for by the Additional Solicitor General, the Registry is directed to supply a copy of this order dasti.
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Date of decision: 04.01.2023 Sarjeet Singh and others Petitioners versus State of Haryana Respondent. Present: Mr. Aditya Sanghi, Advocate, for the petitioners., Through this petition, the petitioners seek anticipatory bail in case bearing First Information Report No. 974 dated 28.09.2022, registered at Police Station Barwala, District Hisar, under Sections 420, 406 and 120-B of the Indian Penal Code. Learned counsel for the petitioners contends that the petitioners have been falsely implicated in the present case; that the petitioners, who are competent members of the Gurudwara Singh Sabha, Barwala (Sikh Temple), used to carry out all activities of the Gurudwara in a legal and lawful manner for the welfare of the Gurudwara and that not a single penny has been misappropriated by the petitioners., Learned counsel further states that the amount withdrawn by the petitioners was used for construction and repair work of the Gurudwara building as well as the shops of the Gurudwara Committee. The petitioners are ready to deposit the due amount either in this Court of Law or in the trial Court. Counsel also contends that the shops owned by the Gurudwara were rented out to relatives of the complainant, but they had not paid rent for a considerable period and attempted to grab the property of the Gurudwara; the Committee of the Gurudwara had already filed various rent petitions against those tenants and the present First Information Report is the outcome of those proceedings., On the request of this Court of Law, Mr. Rajesh Gaur, Additional Advocate General, Haryana, accepts notice on behalf of the respondent State. Mr. Sanchit Punia, Advocate, appears and files his power of attorney on behalf of the complainant, which is taken on record. Learned State counsel and counsel for the complainant, while opposing the grant of bail to the petitioners, submit that there were several Fixed Deposit Receipts in the name of the Gurudwara Singh Sabha, which were supposed to mature in December 2022, but by closing them prematurely the petitioners, in connivance with each other, transferred about Rs. 71 lakh to their personal bank accounts and also to the account of a private company run by petitioner No. 2., The Court heard the learned counsel for the parties. There are serious allegations that the petitioners, in connivance with each other, siphoned off the funds of Gurudwara Singh Sabha by transferring them to their personal accounts and to a private company run by petitioner No. 2. The Gurudwara is a pious place and the misappropriation of its funds hurts the sentiments of many people. Setting the petitioners free would set a bad example and would give oxygen to the fraudsters; therefore they do not deserve any concession of anticipatory bail., Keeping in view the nature and gravity of the offence, this Court of Law finds that the petitioners are required for custodial interrogation to recover the amount and to take the investigation to its logical conclusion. Therefore, finding no merit in the present petition, the same is dismissed.
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These petitions concern the general elections of the Bruhat Bengaluru Mahanagara Palike (for short the BBMP) which is a Municipal Corporation constituted in accordance with Sections 6 and 7 of the Karnataka Municipal Corporations Act, 1976 (for short the said Act of 1976). The BBMP is a Municipality within the meaning of clause (e) of Article 243P of the Constitution of India (for short the Constitution). As per clause (1) of Article 243U, the term of BBMP is for a period of five years from the date appointed for its first meeting. The term of the office of the Councillors of a Corporation constituted under the said Act of 1976 is of five years. There is no dispute that the term of five years of BBMP, as contemplated by clause (1) of Article 243U, has expired on 10 September 2020 and the election to constitute BBMP ought to have been completed before the expiry of its duration specified in clause (1) of Article 243U. As per the constitutional mandate incorporated in sub‑clause (a) of clause (3) of Article 243U, the elections of BBMP ought to have been held before 10 September 2020., Prior to 14 October 2020, as per clause (a) of sub‑section (1) of Section 7 of the said Act of 1976, BBMP consisted of one hundred and ninety‑eight elected Councillors. For holding the general elections of BBMP, a notification of delimitation of wards was issued on 23 June 2020 by the State Government in accordance with clause (a) of sub‑section (1) of Section 21 of the said Act of 1976. A draft notification of reservations of wards was issued as per clause (c) of sub‑section (1) of Section 21 of the said Act of 1976 and the same was published on 14 September 2020. The draft of the ward‑wise electoral rolls has been published by the State Election Commission on 19 October 2020 and the final electoral roll is scheduled to be published on 30 November 2020., The main controversy in these petitions arises as a result of the amendment which came into force on 3 October 2020 to the provisions of the said Act of 1976. The amendment was made by the Karnataka Municipal Corporations (Third Amendment) Act, 2020 (for short the Amendment Act) which was published in the official Gazette on 3 October 2020. Prior to the coming into force of the Amendment Act, sub‑clause (a) of sub‑section (1) of Section 7 provided that the number of elected Councillors of a Corporation shall not be less than thirty and more than two hundred as the Government may, by a notification, determine. By the Amendment Act, a proviso was added after sub‑clause (a) of sub‑section (1) of Section 7, providing that BBMP shall consist of not less than 225 but not more than 250 Councillors, as the Government may decide by issuing a notification. As per sub‑section (1) of Section 21, the power to determine the number of wards into which the city shall be divided and the extent of each division is vested in the State Government. The Amendment Act added sub‑section (2A) to Section 21 providing that the State Government shall constitute a Delimitation Commission consisting of such number of members as may be prescribed, to recommend to the State Government the manner of delimitation of wards in each corporation. On 14 October 2020, the State Government issued a notification exercising its power under the proviso to clause (a) of sub‑section (1) of Section 7 of the said Act of 1976 for determining the number of Councillors for BBMP. By the said notification, it was provided that BBMP shall have 243 Councillors. In view of the issuance of the said notification, the contention of the State Government is that the area within BBMP will have to be divided into 243 wards., Though there is a challenge to the provisions of the Amendment Act, the main question which arises is whether the general election of BBMP which was due to be completed prior to 10 September 2020 is required to be held as per the provisions of the said Act of 1976, as amended by the Amendment Act. If it is held that the general elections which ought to have been completed as per the constitutional mandate before 10 September 2020 will have to be held as per the Amendment Act, there will be no possibility of the elections being held in the near future. The reason is that the Delimitation Commission, which was recently constituted, has not yet submitted its recommendations for dividing the area of BBMP into 243 wards. The exercise will take considerable time, as earlier there were 198 wards. Thereafter, the State Government will have to take an actual decision of dividing the area into 243 wards after considering the recommendations of the Delimitation Commission. After the notification of delimitation is issued, the State Election Commission will have to undertake the huge task of preparation of a fresh electoral roll for 243 wards and simultaneously the State Government will have to start the exercise of declaring the reservation of seats., There are three writ petitions filed on the issue with which we are dealing. The first writ petition is W.P. No. 1892/2020 filed by the State Election Commission. In the said writ petition, as originally filed on 24 January 2020, a writ of mandamus was prayed for directing the State Government to take immediate action for issuing the final notification of delimitation of 198 wards, as required by subsection (1) of Section 7, and to issue the final notification of reservations of seats as required by sub‑section (2) of Section 7. Thereafter, after the coming into force of the Amendment Act, the petition was amended incorporating an additional prayer for a declaration that the elections of BBMP shall be held for electing 198 Councillors in terms of the delimitation notification dated 23 June 2020. A direction is sought that the election process should continue irrespective of the provisions of the Amendment Act., Writ Petition No. 10216/2020 is filed by two elected Councillors of BBMP whose term expired on 10 September 2020. The prayer in the said writ petition is for issuing a writ of mandamus against the State Government and the State Election Commission to hold the elections of BBMP before the expiry of the term of BBMP as per the constitutional mandate of Article 243U of the Constitution., We may note that Writ Petition No. 10216/2020 was amended by incorporating two additional prayers. The first prayer is for a declaration that the Amendment Act has no application to the elections to be conducted with respect to BBMP. A prayer in the alternative was incorporated for striking down the Amendment Act by contending that it is unconstitutional., Writ Petition No. 11077/2020 is filed by the petitioner appearing in person who is an advocate. The prayer sought in the petition is the same as sought in W.P. No. 10216/2020., We have heard the submissions of Professor Ravivarma Kumar, the learned Senior Counsel representing the petitioner in W.P. No. 10216/2020, Shri K.N. Phaneendra, learned Senior Counsel representing the petitioner (the State Election Commission) in W.P. No. 1892/2020 and the petitioner appearing in person in W.P. No. 11077/2020. The gist of the submissions of the petitioners is as follows: (a) The mandate of clause (3)(a) of Article 243U of the Constitution is that election to constitute a Municipality must be held before the expiry of its term of five years; (b) The Amendment Act is prospective which will apply from 3 October 2020 and it will not apply to election of a Municipality which is overdue; (c) The issue is covered by the decisions of this Karnataka High Court in the cases of Professor B.K. Chandrashekar and others v. State of Karnataka and K.C. Kondaiah and others v. State of Karnataka; (d) Even in the past, the election of BBMP was considerably delayed and an attempt is always made by the State Government to delay the elections thereby defeating the mandate of Article 243U of the Constitution. The delimitation notification as contemplated by sub‑clause (a) of sub‑section (1) of Section 21 of the said Act of 1976 was published on 23 June 2020 and a draft reservation notification in accordance with clause (c) of sub‑section (1) of Section 21 was published on 14 September 2020; (e) It is pointed out by the State Election Commission that Standard Operating Procedure for the conduct of general election of BBMP has been published on 14 September 2020 in the context of COVID‑19. The final electoral roll is scheduled to be published on 30 November 2020. It is pointed out that huge expenditure has been incurred on the finalisation of the ward‑wise electoral roll; (f) The State Government cannot interfere with the process of election of BBMP in view of the constitutional mandate. It is pointed out that ward‑wise draft electoral roll has been published on 19 October 2020 and approval for printing of ward‑wise final electoral roll has been granted., The submissions of the learned Advocate General can be summarised as follows: (a) The Bruhat Bengaluru Mahanagara Palike Bill, 2020 (for short the said Bill) was placed before the Council of Ministers. The Bill is a separate enactment dealing with the constitution of BBMP. The Bill was referred to the Joint Select Committee of the Karnataka Legislature. The report of the Joint Select Committee dated 15 September 2020 records that an extension of time has been granted to submit a special report. The committee recommended the amendment of Section 7 of the said Act of 1976 for increasing the maximum number of wards to 250; (b) The said Act of 1976 was amended by the Amendment Act for giving effect to the recommendations of the Joint Select Committee. The Amendment Act came into force on 3 October 2020. The amended provisions cannot be ignored and will have to be given effect; (c) Reliance was placed on a Constitution Bench judgment of the Supreme Court in the case of K.S. Puttaswamy and another v. Union of India. He relied upon paragraph 101 and submitted that importance has been given to constitutional democracy. He submitted that the object of amending Section 7 is to ensure that the citizens of Bengaluru get a larger representation. He submitted that the population within the limits of BBMP has rapidly increased and now the population is more than 1.30 crores; (d) Legislation can be challenged only on one of three grounds: (i) lack of legislative competence, (ii) the legislation is in violation of fundamental rights or any other constitutional provision, and (iii) the legislation is manifestly arbitrary. He submitted that none of the three grounds are established in these cases for substantiating the challenge to the Amendment Act. He submitted that notwithstanding the amendment of the Constitution incorporating parts IX and IXA, the power of the State legislature to legislate as per entry 5 of List II of the Seventh Schedule of the Constitution is not taken away. He pointed out that clause (5) is in respect of local governments, its constitution and powers. He invited our attention to Article 368 of the Constitution and submitted that if any entry in any of the lists in the Seventh Schedule is to be changed or amended, such amendment requires ratification by the legislatures of not less than one half of the States; (e) He relied upon observations made in paragraph 12 of the decision of the Supreme Court in the case of Dravida Munnetra Kazhagam (DMK) v. Secretary, Governor’s Secretariat and another. He submitted that the Supreme Court has held that the object of Part IX cannot be achieved unless delimitation exercise is done properly. The submission is that the delimitation exercise will have to be done properly in the light of the Amendment Act. He relied upon a decision of the Gujarat High Court in the case of Rajendra N. Shah v. Union of India and another on the power of the State Legislature; (f) The learned Advocate General invited attention of the Karnataka High Court to the statement of objections filed by the State Government in W.P. No. 1892/2020. He pointed out that the population of the BBMP limits was recorded in the 2011 census as 84,43,675 which is now more than 1.30 crores. Consequently, demographics recorded in the year 2011 have changed. He submitted that by electing 243 Councillors, a larger representation will be given to the citizens; (g) He submitted that the decision of this Karnataka High Court in the case of Professor B.K. Chandrashekar is per incuriam. He submitted that the provisions of law cannot be ignored and the Court is bound to give effect to the provisions of law; (h) However, the learned Advocate General has stated that the Karnataka High Court may put a time limit for completing the exercise of delimitation of wards, declaration of reservation and finalisation of voters list. He submitted that the State Government is prepared to abide by directions issued by this Court in this behalf., We have given careful consideration to the submissions made across the Bar. The BBMP is a Municipality within the meaning of clause (e) of Article 243P of the Constitution. Article 243U is most material for our consideration which reads thus: 243‑U. Duration of Municipalities, etc. (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer: Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Municipality shall be completed, (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved., In the case of Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, the Constitution Bench of the Supreme Court considered Article 243U. Paragraph 12 of that decision notes that Part IX‑A was inserted in the Constitution by virtue of the Constitution (Seventy‑fourth) Amendment Act, 1992. The object of introducing these provisions was that in many States the local bodies were not working properly and timely elections were not being held, leading to nominated bodies continuing for long periods. The amendment sought to provide constitutional status to such bodies and to ensure regular and fair conduct of elections, including fixed tenure of five years for the municipality and re‑election within six months of its dissolution., The effect of Article 243U is that the duration of the municipality is fixed for a term of five years and every municipality shall continue for five years from the date appointed for its first meeting and no longer. Clause (3) states that election to constitute a municipality shall be completed (a) before the expiry of its duration specified in clause (1), or (b) before the expiration of a period of six months from the date of its dissolution. A proviso adds that if the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election for constituting the municipality for such period. Clause (4) provides that a municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under clause (1)., The Supreme Court held that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. The Election Commission shall try to complete the election before the expiration of the five‑year period as stipulated in clause (5). Any revision of electoral rolls shall be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing electoral rolls. The Court also observed that exceptional circumstances such as rioting, breakdown of law and order, or natural calamities may distract authorities, but under no other circumstance would the Election Commission be justified in delaying the election after consulting the State Government and other authorities., Hence, the mandate of clause 3(a) of Article 243U of holding elections of a Municipality before its term expires must be followed strictly. It is the obligation of the State Election Commission to do so. If the finalisation of the voters list is delayed, the election must be held as per the existing voters list. The State Election Commission should not yield to a situation created by vested interests for delaying the elections. In this case, the State Government or the State Election Commission have not offered an excuse of the COVID‑19 pandemic for delaying the election of the BBMP. The State Election Commission moved the Karnataka High Court on 24 January 2020 by filing Writ Petition No. 1892/2020., The order dated 18 February 2020 read as follows: Notice has already been issued to the first and second respondents. For the time being, notice to the third respondent is dispensed with. The State Election Commission has been constituted under Section 308 of the Karnataka Panchayat Raj Act, 1993. The State Election Commission has been constituted on the basis of the constitutional mandate under Article 243ZA of the Constitution of India. It is shocking to note that the State Election Commission, which is established under the constitutional mandate, is forced to approach the Karnataka High Court for seeking a writ of mandamus against the State Government on account of the failure of the State Government to perform its statutory duties under the Karnataka Municipal Corporation Act, 1976. The term of office of Bengaluru Bruhat Mahanagara Palike will expire on 10 September 2020. Therefore, the State Election Commission will have to hold election well within time. The process of election has to be completed before 10 September 2020 in accordance with the constitutional mandate. So far as the State Government has not done the exercise of determination of wards as contemplated under Section 21 of the said Act of 1976 and reservation of seats as provided under sub‑section (2) of Section 7 of the said Act of 1976, the State Government must file a statement of objections to set out whether the exercise of determination of wards of BBMP was earlier done on the basis of the 2011 census and when the process of determination of wards was commenced. The statement of objections shall be filed on or before 3 March 2020. Let this petition be listed for final disposal on 4 March 2020 in the afternoon. Prima facie, it is a fit case to impose exemplary cost on the State Government for forcing the State Election Commission to take recourse to a remedy under Article 226 of the Constitution of India. Needless to add that the work of determination of wards and fixing the reservations for the seats of all the wards shall be completed by the State Government at the earliest. Prima facie, there was no impediment at all to do this exercise much earlier., The order dated 4 March 2020 stated that a draft notification of determination of the wards in accordance with Section 21 of the Karnataka Municipal Corporations Act, 1976 had been published and a period of fifteen days was given to submit objections. After the wards are determined, the exercise of reservation as contemplated under sub‑section (c) of sub‑section (1) of Section 21 of the said Act of 1976 will be undertaken. The State must give an undertaking on oath to the Karnataka High Court specifying the outer limit for completion of the work of not only determination of the wards but also the determination of reservation as provided in clause (c) of sub‑section (1) of Section 21 of the said Act of 1976. The result of the election will have to be announced much prior to 10 September 2020. The State Election Commission needs a minimum of one month to complete the actual process of the election. Four months will be required by the State Election Commission to finalise the voters list. Thus, a minimum period of five months will be required by the State Election Commission to hold the elections, i.e., from 1 April 2020 till the end of August 2020. The State Government will give an undertaking, to be filed on or before 13 March 2020. The petition was listed at 2.30 p.m. on 13 March 2020 for that purpose., On 13 March 2020, the Karnataka High Court noted that the Additional Government Advocate sought time of one week to file an undertaking on oath, as directed under the order dated 4 March 2020. The order of 4 March 2020 makes it clear that the work of determination of the wards and determination of reservation has to be completed before 1 April 2020. Time was given till 13 March 2020 to enable the State to file the undertaking specifying the outer limit for completing the determination of the wards and reservation. The Court observed that it is unfortunate that the State Election Commission, constituted on the basis of Article 243A of the Constitution of India, has to approach the Karnataka High Court for a writ of mandamus against the State Government, and that the State should be directed to pay heavy costs to the petitioner. The Court granted time till 20 March 2020, to be listed at 2.30 p.m., When the matter was called out on 20 March 2020, it was adjourned till 30 March 2020. From 30 March 2020, the writ petition was not listed due to restricted functioning of the Karnataka High Court because of the COVID‑19 pandemic.
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On 22nd September 2020, when the said writ petition was listed, the following order was passed by the Karnataka High Court: The Learned Advocate General appeared before the court and confirmed the following facts which are already placed on record by the memo dated 16th September 2020 filed by the petitioner: Final notification of delimitation of 198 wards has been issued on 23rd June 2020; the State Election Commission has stated that the draft ward‑wise electoral rolls will be published on 19th October 2020 and the final voters list will be published on 30th November 2020; the State Government has published draft reservation notification dated 14th September 2020., The Learned Advocate General states that more than 900 objections have been received to the draft notification. He states that the final notification will be issued probably within a period of two weeks from today. Let the petition be listed on 12th October 2020 for ascertaining further progress made., Thus, as per the said order, final notification of reservation of seats was required to be issued within two weeks from 22nd September 2020. When the said order dated 22nd September 2020 was passed, the outer limit provided under Article 243U of the Constitution for holding election had already expired. As stated earlier, the final voters list is to be declared on 30th November 2020. Therefore, in normal course, by the end of this year, the process of elections could have commenced., The Amendment Act came into force on 3rd October 2020. The following were the changes made by the Amendment Act to the provisions of the said Act of 1976: A proviso is added to clause (a) of sub‑section (1) of Section 7 of the said Act of 1976 providing that in case of BBMP, the Councillors shall not be less than 225, but not more than 250, as the Government by a notification determines; Sub‑section (2A) was added in Section 21, providing for the State Government constituting a Delimitation Commission for recommending to the State Government the manner of delimitation of wards in each corporation; Clause (a) of Sub‑section (1) of Section 21 was amended to provide that finalisation of the wards (delimitation of wards) shall be made by the State Government on the basis of the recommendation of the Delimitation Commission., The first amendment is only as regards BBMP. As pointed out earlier, on 14th October 2020, the State Government exercised its power under the proviso to clause (a) of sub‑section (1) of Section 7 of the said Act of 1976 and declared that there shall be 243 Councillors for the BBMP. Consequently, the number of wards has now increased to 243. On the same day, by another notification, the Delimitation Commission was constituted consisting of four members., Admittedly, as per the constitutional mandate of Article 243U, the elections of BBMP ought to have been completed before 10th September 2020. If the election is to be held as per the amended provisions of the said Act of 1976 as amended by the Amendment Act, it is obvious that the elections will be further delayed for the following reasons: firstly, the Delimitation Commission will have to make recommendations for constituting 243 wards for BBMP. Prior to 14th October 2020 there were 198 wards; this process itself will take a long time. Secondly, after recommendations are made by the Delimitation Commission, the State Government will have to pass an order by issuing a notification in accordance with clause (a) of Sub‑section (1) of Section 21 for determination of 243 wards into which BBMP area shall be divided by specifying the extent of each division. Thereafter, a huge exercise will have to be undertaken by the State Election Commission for preparation of the draft electoral roll of each of the 243 wards. As noted in the order dated 4th March 2020, the State Election Commission will take at least four months to do so. Finally, the exercise of fixing reservations will have to be undertaken by the State Government in accordance with clause (c) of Section 21 of the said Act of 1976., Thus, even by a conservative estimate, the election of BBMP cannot be held in the near future. There can be no dispute that if the general elections of the BBMP are to be held after giving effect to the provisions of the said Act of 1976 as amended by the Amendment Act, even by a most conservative estimate, the elections of BBMP cannot be held at least for a minimum of eight to nine months. This would constitute a gross violation of the constitutional mandate under Article 243U. In fact, as of today, there is already a violation of the said constitutional mandate., At this stage, it will be necessary to make a reference to the decision of the Division Bench of the Karnataka High Court in the case of Professor B.K. Chandrashekar. The prayer before the court in the writ petition was that a writ of mandamus be issued for holding elections to the Grama Panchayats in the State of Karnataka well within time, as provided in Article 243E of the Constitution. The constitutional validity of the Karnataka Panchayat Raj Amendment Ordinance No.1/1999 was also challenged. In the facts of the case, if the elections were to be held as per the provisions of the said Ordinance, the same could not have been held within the time frame provided under Article 243E. The Division Bench, in paragraph 29 of the said decision, held: \During the course of arguments we had asked Mr. Acharya, learned counsel appearing for the State Election Commission as to within how much time the Election Commission would be able to hold elections, if the ordinance is given effect to. According to him it will take in all at least seven months to hold the elections as fresh notifications under Section 5(1)(2) and (5) have to be issued. On the expiry of the period of five years, the present elected bodies would become functus officio. The Grama Panchayats will not be having any elected body which would result in breakdown of the democratic set‑up envisaged by the Constitution. In order to prevent such a situation it would be necessary to direct the respondents to hold elections to the Grama Panchayats in the State of Karnataka immediately. We are not holding that the State Legislature does not have the competence to amend Sections 4 and 5 of the Panchayat Raj Act. If it has the power to enact it has necessarily the power to amend those provisions as well. But as the amendment results in nullifying the mandate of the Constitution of India specially when the process of election had begun, the same is held to be not applicable to the present elections to Grama Panchayats due to be held in the month of March/April 1999. If there is conflict between the mandatory provisions of the Constitution and the right of the State Legislature to enact laws which falls within its legislative competence and which results in nullifying the mandate of the Constitution then in such a case provision of the Constitution would take precedence. If such a view is not taken then the mandate of the Constitution can be flouted with impunity by the State Legislature on one pretext of the other. Constitution is supreme and the laws by the legislature have to be enacted subject to the provisions of the Constitution of India and therefore subordinate to it. Press note annexure B issued by the Election Commission attached in W.P. 3826/99 is quashed.\, If the law laid down by the Division Bench of the Karnataka High Court is to be followed in the present case, a writ of mandamus will have to be issued directing the State Election Commission to hold elections of BBMP in terms of the un‑amended provisions of the said Act of 1976. The learned Advocate General contended that what is held in the case of Professor B.K. Chandrashekar is per incuriam. He relied upon Entry‑5 of List II in Schedule VII to the Constitution by submitting that the State has a power to enact laws relating to local authorities including the Municipal Corporations. Therefore, we will have to deal with this contention., Entry‑5 in List II of Schedule VII to the Constitution reads thus: \5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self‑government or village administration.\ It is a well‑settled position of law that while exercising the legislative power, the State Legislature cannot frame laws which are inconsistent with or contrary to the express provisions of the Constitution. One of the objects of introducing Part IX‑A in the Constitution was to avoid any delay in the conduct of elections to the local authorities and to ensure that the State Government has no role to play in the elections. Clause (3)(a) of Article 243U mandates that elections of every municipality shall be completed before the expiry of its duration. Any law which tinkers with the express provisions of clause (3)(a) of Article 243U will be open to the vice of unconstitutionality., Article 243ZF, which is also relevant to decide the issue involved in this case, reads thus: \243‑ZF. Continuance of existing laws and Municipalities. Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy‑fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.\ The mandate of Article 243ZF of the Constitution is that existing laws relating to Municipalities must be in conformity with the provisions of Part IX‑A of the Constitution. Therefore, the power of the State Legislature to enact laws on Municipalities cannot be exercised by making legislation which will defeat the provision incorporated in clause (3)(a) of Article 243U. The State Legislature cannot make a law which defeats the said provision., As per the constitutional mandate, the general elections of the BBMP ought to have been completed before 10th September 2020. Undisputedly, the process of delimitation of wards of the BBMP was completed by the State Government much prior to the introduction of the Amendment Act by issuing a notification on 23rd June 2020. The final electoral roll is almost ready. What remained to be completed as on 3rd October 2020 was the issuance of the final notification on reservations of the wards, which was required to be issued within two weeks from 22nd September 2020 as per the assurance given by the State Government and recorded in the order dated 22nd September 2020. There is no provision in the Amendment Act which requires re‑opening of a notification already issued under clause (a) of sub‑section (1) of Section 21. If it is held that the election of the BBMP, which is now overdue, ought to be held in accordance with the provisions of the said Act of 1976 as amended on 3rd October 2020, the provisions of the amended Act will infringe the constitutional mandate of clause (3)(a) of Article 243U of the Constitution, as there will be no possibility of holding the elections of BBMP in the near future., In one of the three writ petitions, the constitutional validity of the Amendment Act has been questioned. It is a well‑settled proposition of law that if two interpretations of a statute under challenge are possible, the interpretation that will make the statute valid must be accepted. Moreover, the Court should endeavour to save legislation, if possible, by reading down the same. In the present case, if the Amendment Act is interpreted to mean that it will apply even to elections which ought to have been held much prior to the coming into force of the Amendment Act, such an interpretation will render the Amendment Act unconstitutional as it contravenes clause (3)(a) of Article 243U. Therefore, the alternative interpretation that the amended provision is prospective in nature and will not apply to the overdue elections needs to be accepted to save the Amendment Act from being declared unconstitutional. The process of conducting the election of BBMP was initiated much prior to the coming into force of the Amendment Act. The State Government itself published a notification of delimitation of 198 BBMP wards in June 2020, and the draft reservation notification was published in September 2020. Hence, the provisions of the Act of 1976 as amended by the Amendment Act will not apply to the election of a corporation that was overdue before the amendment came into force. If such an interpretation is not accepted, the Amendment Act will be applied to the election of the BBMP, which is overdue, and the elections may not be held even before 10th September 2021, though they ought to have been held before 10th September 2020. Such an interpretation would violate clause (3)(a) of Article 243U of the Constitution., Another argument was canvassed by the learned Advocate General based on a recent decision of the Apex Court in the case of Dravida Munnetra Kazhagam. In paragraph 12 of that decision, it was observed: \It is, thus, clear that the constitutional object of Part IX cannot be effectively achieved unless the delimitation exercise for constitution of local bodies at all levels is properly undertaken. Such exercise in the State of Tamil Nadu must keep in view the criteria for delimitation of wards prescribed under the Tamil Nadu Local Bodies Delimitation Regulations, 2017 (formulated under the Tamil Nadu Delimitation Commission Act, 2017), which criteria must itself not be contrary to Article 243‑C read with Article 243‑B(1) of the Constitution.\, The object of Part IX‑A of the Constitution cannot be achieved unless the delimitation exercise is properly undertaken by the Government. In this case, the delimitation exercise has already been undertaken by the State Government itself by issuing the notification regarding delimitation of the wards on 23rd June 2020. No one has questioned the legality of that notification. Hence, the decision in the above case cannot be made applicable to the facts of the present case., Another argument was raised on behalf of the State Government that the population within the limits of the BBMP has grown substantially after the last census and is now more than 1.3 crores. As provided in Section 23, the electoral roll of each ward is required to be prepared solely on the basis of the electoral roll of the Karnataka State Legislative Assembly in force at the time. Therefore, even if the delimitation of the wards is made as per the Amendment Act, while preparing the ward‑wise electoral roll, the existing electoral roll of the Karnataka Legislative Assembly will have to be taken into consideration. No additions or alterations have been made to the limits of BBMP. Consequently, whether elections are held for 198 wards or 243 wards, the same set of voters who voted in the general election of the State Assembly will vote. Even if the elections are held as per the Amendment Act, only those voters whose names appear in the existing electoral roll of the Karnataka Legislative Assembly will be entitled to vote. Hence, no voter will be denied the right to vote even if the election is held without applying the Amendment Act., Therefore, apart from the decision of the Division Bench in the case of Professor B.K. Chandrashekar, if the general election of the BBMP is held as per the Act of 1976 as amended, there will be a violation of the provisions of clause (3)(a) of Article 243U. For the purpose of upholding the validity of the Act of 1976 as amended with effect from 3rd October 2020, it must be held that the provisions of the Act of 1976 as amended on 3rd October 2020 cannot apply to the general election of BBMP which is overdue. The decision in the case of Professor B.K. Chandrashekar is not per incuriam; it gives effect to the mandate of Article 243E applicable to panchayats, which requires elections of the panchayats to be held before the expiry of their term., The decision of the Gujarat High Court in the case of Rajendra N. Shah deals with the constitutional validity of Part IXB of the Constitution dealing with cooperative societies. In this case, we are not concerned with the validity of Part IXA of the Constitution, as no one has challenged the same., Therefore, the State Government will have to be directed to publish the final reservations on the basis of the draft notification already issued on 14th September 2020 and thereafter, the State Election Commission will have to be directed to hold the elections of BBMP., We have already extensively referred to the several orders passed by the Karnataka High Court in Writ Petition No.1892/2020 filed by the State Election Commission. Anticipating an inordinate delay by the State Government in publishing the notification of delimitation of the wards and the notification regarding the reservations of the wards, nearly seven and a half months before the last term of BBMP expired, the writ petition was filed by the State Election Commission in January 2020. On 22nd September 2020, the State Government gave assurance to the court that the final notification of reservation would be published within two weeks from 22nd September 2020. Under the earlier order dated 4th March 2020, the State Government was directed to file an undertaking specifying the outer limit for completing the delimitation of wards and determination of the reservations. Although no such undertaking was filed, a notification regarding the delimitation of wards was published on 23rd June 2020. The submission of the learned Advocate General recorded in paragraph 2 of the order dated 22nd September 2020 will have to be treated as an undertaking of the State Government, which has not been complied with on the pretext of the coming into force of the Amendment Act. In the past, elections of the BBMP were delayed, and in some other municipal corporations the elections have not been held within the time fixed by Article 243U of the Constitution. Consequently, the State Election Commission is forced to invoke the writ jurisdiction of this court to compel the State Government to perform its statutory duties under Section 21 of the Act of 1976. Normally, the court would have been justified in imposing exemplary costs on the State Government; however, we take judicial notice that the State Government is facing a financial crunch due to the lockdown and spread of COVID‑19, and therefore we refrain from imposing costs. In any case, the State Government will have to provide requisite funds to the State Election Commission for holding elections to the BBMP., Under clause 39A of Section 2 of the Act of 1976, the State Election Commission is defined to mean the SEC as constituted under Section 308 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short the Act of 1993). Therefore, the powers of the State Election Commission will be governed by Section 308 of the Act of 1993. Paragraphs 14 and 15 of the decision of this court in the case of Shri K.C. Kondaiah are relevant and will apply to the elections of municipalities as well. Paragraph 14 states: \Section 308(1) of the Act of 1993 reads: 'The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Grama Panchayat, Taluk Panchayat or Zilla Panchayat and the power of delimitation of territorial constituencies and enforcement of the code of conduct in respect of such elections shall be vested in the State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.'\ Paragraph 15 concludes: \The legal position is clear that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats absolutely vests in the State Election Commission. The State Government has no role to play in conducting elections of the Panchayats. Sub‑section (1) of Section 308 of the Act of 1993 is consistent with clause (1) of Article 243K. Even if government staff is required to be requisitioned by the State Election Commission for holding elections, the requisition must be submitted by the State Election Commission to the Honorable Governor of the State and not to the State Government. Article 243K(3) leaves no choice to the Honorable Governor but to make available the required staff when a request comes from the State Election Commission. Sub‑section 2C of Section 308 of the Act of 1993 obliges the State Government to allocate funds to the State Election Commission for running the establishment and for conduct of elections. Freedom to divert funds allocated by the State Government is conferred on the State Election Commission. By invoking the concept of transformative constitutionalism, a role cannot be created for the State Government in the conduct of Panchayat elections, as the concept cannot be invoked to defeat the constitutional provisions conferring independence and autonomy on State Election Commissions. The control of the State cannot be introduced by a back‑door method which would defeat the object of the Seventy‑third Constitutional Amendment.\, Considering the discussion above, our conclusions are as follows: (a) We hold that the Karnataka Municipal Corporations (Third Amendment) Act, 2020 is valid, but it must be read down to the effect that it will not apply to the elections of the corporations which ought to have been held as per the mandate of Article 243U(3)(a) of the Constitution before the Amendment Act came into force. (b) If it is accepted that the overdue elections of the corporations must be held by giving effect to the provisions of the Amendment Act, those provisions will infringe clause (3)(a) of Article 243U of the Constitution. Hence, the provisions of the Act of 1976 as amended by the Amendment Act will apply only to municipal corporations whose terms expire after 3rd October 2020., Hence, we pass the following orders: (i) The State Government is directed to publish the final notification of reservations as per clause (c) of sub‑section (1) of Section 21 of the Act of 1976 for 198 wards, in accordance with the delimitation notification dated 23rd June 2020. The State Government is granted time of one month from today to publish the final notification, although the assurance given in the order dated 22nd September 2020 required publication within two weeks from that date. (ii) The State Election Commission is directed to hold the election of BBMP as expeditiously as possible by publishing the election programme within a maximum period of six weeks from the date on which the final reservation notification is published. (iii) It is made clear that elections shall be held for 198 wards as per the notification of delimitation of wards already published on 23rd June 2020. (iv) The petitions are allowed on the above terms with no order as to costs.
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Writ Petition (Public Interest Litigation) No. 58 of 2020, Writ Petition (Public Interest Litigation) No. 97 of 2019, Writ Petition (Public Interest Litigation) No. 50 of 2020, Writ Petition (Public Interest Litigation) No. 51 of 2020, Writ Petition (Public Interest Litigation) No. 67 of 2020, Writ Petition (Public Interest Litigation) No. 70 of 2020, Writ Petition (Public Interest Litigation) No. 61 of 2021. Mr. Shiv Bhatt, learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 58 of 2020 and Writ Petition (Public Interest Litigation) No. 77 of 2021; Mr. Piyush Garg, learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 51 of 2020; Mr. Dushyant Mainali, learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 50 of 2020; Mr. Abhijay Negi, learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 97 of 2019; Mr. S.N. Babulkar, learned Advocate General assisted by Mr. C.S. Rawat, learned Chief Standing Counsel for the State of Uttarakhand; Mr. Rakesh Thapliyal, learned Assistant Solicitor General for the Union of India., Common Order (per Hon'ble Chief Justice Sri Raghvendra Singh Chauhan): On 23 June 2021, the Supreme Court of India was informed that the Government had issued a Government Order dated 20 June 2021, wherein the Government thought it proper to re‑open the Char Dham Yatra in a phased manner. According to the said Government Order, in the first phase, residents of Chamoli district would be permitted to visit the Badrinath Temple; residents of Rudraprayag district would be permitted to visit the Kedarnath Temple; residents of Uttarkashi district would be permitted to visit the temples of Gangotri and Yamunotri. It was also proposed that in the second phase, residents of the other ten districts of Uttarakhand would be permitted to visit the Char Dham., Considering that the country was still reeling under the impact of the COVID‑19 pandemic and the pleas raised by the learned counsel for the petitioners in various Public Interest Litigations filed before this Court, the Supreme Court of India requested the State to review its decision with regard to re‑opening the Char Dham Yatra even in a phased manner. The Court also directed Mr. Om Prakash, learned Chief Secretary, and Dr. Ashish Chauhan, learned Additional Secretary, Culture and Religious Affairs Department, to inform the Court of any decision taken by the Cabinet on the said subject on the next date., Consequently, Mr. Om Prakash, learned Chief Secretary; Mr. Dilip Jawalkar, learned Secretary, Tourism; and Dr. Ashish Chauhan, learned Additional Secretary, Culture and Religious Affairs Department, appeared in the virtual Supreme Court of India through video conferencing., Dr. Ashish Chauhan submitted an affidavit with regard to the decision taken by the Cabinet on 25 June 2021, the Standard Operating Procedure issued by the Government on 26 June 2021, and other arrangements being made at the Char Dham. The affidavit was taken on record., The issue before the Supreme Court of India is whether, under the present circumstances and the circumstances likely to occur in the near future, the Char Dham Yatra should be re‑opened. For, according to the decision of the Cabinet dated 25 June 2021, the Cabinet has decided to permit the opening of the Char Dham Yatra from 1 July 2021, to the limited extent that residents of the districts of Chamoli, Rudraprayag and Uttarkashi would be permitted to visit the temples within their respective districts., In order to understand the controversy holistically, it is essential to consider the history of the COVID‑19 pandemic, its development, the devastation it has caused, the emergence of new variants of the virus, the nature and characteristics of these new variants, the scope and extent of the new variants, the consequences of these variants on human health, and whether the State of Uttarakhand is prepared to tackle the possible emergence of the third wave of COVID‑19. The issue is not limited to opening pilgrimage sites; it is fundamentally about human lives, the people of the State, and the people of the nation. Viruses do not respect borders, so the issue before the Supreme Court of India is a global one and must be decided with a catholic vision., In 1918 the Spanish Flu came to India in three waves. After it subsided, mankind thought it had been delivered from an apocalypse. From 1918 till December 2019 we thought we were safe and could lead normal lives. However, from December 2019 the international media reported that COVID‑19 had struck Wuhan province in China. Experts warned that the virus would spread worldwide, ringing alarm bells across the five continents., Even before we were ready to face the pandemic, in March 2020, considering the emergence of COVID‑19, the Central Government announced a national lockdown in the interest of the people at large. This was the first wave of the pandemic, caused by the Alpha variant. The first wave peaked between August and September 2020 and began to decline at the end of September 2020. By December 2020 we were assured that we had beaten the pandemic and the country started re‑opening state by state, city by city., However, the second wave caught everyone unaware. A new mutant, the Delta variant, had emerged. While the first wave was caused by the Alpha variant, by February‑March 2021 the Delta variant had crept in and the second wave began., The second wave struck the country like a tsunami. It killed about three lakh people, left devastated families and orphaned children, and reached its zenith in April‑May 2021. During that period, lifesaving medicines, oxygen tanks, hospital beds and ambulances were unavailable. The health‑care system began to crumble, people ran from pillar to post seeking help, and crematoriums and burial grounds ran out of space, forcing families to perform inadequate rites. Satellite images of May 2021 and international media showed endless pyres and the pitiable condition of the people., According to experts, one of the great contributory factors for the steep rise in the second wave was the ill‑decision to hold the Kumbh Mela at Haridwar between 1 April 2021 and 30 April 2021. Media reports indicated that about 57 % of deaths in Uttarakhand in May 2021 were due to the Kumbh Mela held in April 2021. The pictures embarrassed the entire country and shocked the world community., Suddenly our country was painted as a renegade and an irresponsible member of the international community. Flights from India were stopped by other countries. Even today we are not free from the devastation caused by the second wave, although fortunately the second wave is on the decline., Scientists say there is no way to determine how many waves will continue to strike our shores. Since April 2021 the Netherlands and France have faced a third wave; the United Kingdom has already entered a third wave; Australia declared a lockdown on 25 June 2021; Bangladesh imposed a lockdown on the same day. Every country is trying to protect itself from the possible assault of the third wave., According to Dr. Randeep Guleria, Director of the All India Institute of Medical Sciences, New Delhi, the third wave of COVID‑19 infection is inevitable. He warned that crowding in public places will make escape impossible. Professor K. Srinath Reddy, Director of the Public Health Foundation of India, said India will definitely face a third wave. Dr. S.K. Sarin, Director of the Institute of Liver and Biliary Sciences, New Delhi, warned that variants can breach vaccine‑induced antibodies and the current vaccine may not offer sufficient protection against new mutant strains. Experts continuously warn that the third wave may arrive at any time, possibly in the second or third week of August 2021, but there is no guarantee it will not strike earlier., In recent months a new variant called the Delta Plus variant has been discovered. On 23 June 2021 the Supreme Court of India noted that the Central Government announced that the Delta Plus variant had been detected in Madhya Pradesh, Maharashtra and Kerala, and directed the State of Maharashtra to ensure containment zones in two districts. Within one week the Delta Plus variant was reported in eleven states, a phenomenal increase., According to experts, the Delta Plus variant has four characteristics: (i) it is immune to the vaccines administered to the public, so even vaccinated persons may not be protected; (ii) it directly and adversely affects the lungs, with some reports suggesting lung damage within three days, leading to rapid death; (iii) treatment requires a longer period of hospitalization than was necessary for the second wave caused by the Delta variant; (iv) it transmits faster from person to person, spreading more quickly than the Delta variant, which took about nine months to spread widely., Keeping in mind the grim emergence of the third wave, its rapid transmissibility and the strained health‑care system, the Central Government repeatedly directs all states to avoid crowd gatherings and some states have re‑established containment zones. A few states have even extended lockdown periods to prevent the emergence of the third wave., According to a newspaper report dated 27 June 2021, a woman who had completed vaccination in district Bikaner, Rajasthan, was discovered to be carrying the Delta Plus variant. She was asymptomatic but was immediately placed under medical treatment, illustrating that the Delta Plus variant may breach the firewall of inoculation., The inoculation rate of Uttarakhand is not encouraging. Out of a population of 1.32 crore, by the end of May 2021 only 35,36,840 persons had been inoculated. Of these, 21,72,760 had received the first dose and merely 6,82,040 had received both doses. Thus a majority have received only the first dose., Experts estimate that it will still take eighteen months to vaccinate 70 % of the population in Uttarakhand. Even if 100 % of the population were inoculated, there is no guarantee that the people of Uttarakhand would be protected from the Delta Plus variant., Considering data from Uttarkashi, Rudraprayag and Chamoli districts: Uttarkashi (population 3,76,298) has inoculated 1,57,697 persons – 1,17,529 with the first dose and 40,168 with both doses. Rudraprayag (population 2,76,205) has inoculated 1,18,975 persons – 1,01,081 with the first dose and 17,894 with both doses. Chamoli (population 4,46,430) has inoculated 1,65,141 persons – 1,33,256 with the first dose and 31,885 with both doses. In these three districts, where residents would be permitted to visit the respective shrines, not even 50 % of the population has been inoculated, and the majority have only received the first dose, leaving their immunity insufficient to fight a third wave., A perusal of the affidavit filed by Dr. Ashish Chauhan reveals that by its decision dated 25 June 2021, the Cabinet decided to permit people living in Uttarkashi, Rudraprayag and Chamoli districts to visit their respective shrines from 1 July 2021. It also decided to review the decision regarding the second phase, whereby people of the entire State would be permitted to visit the Char Dham from 11 July 2021. Furthermore, considering the dangers of the pandemic, the Cabinet decided to prohibit the Kavad Yatra this year, a pilgrimage in which people carry water on their shoulders to pour on the deity., Along with the affidavit, Dr. Ashish Chauhan submitted the Standard Operating Procedure dated 26 June 2021. Although the SOP is detailed, the learned Chief Secretary admitted that it is very similar to the SOPs issued during the Kumbh Mela. Repeatedly, before the Supreme Court of India, assurances were given by the learned Chief Secretary, the learned Secretary, Medical Health and Family Welfare, and the learned Mela Adhikari that the SOPs would be implemented in the strictest manner. Yet, despite the best intentions of the State Government, the civil administrations of Haridwar and Rishikesh singularly failed to implement the SOPs. Numerous images on the internet show that many pilgrims neither wore masks, maintained six‑foot social distance, used sanitizers nor washed hands. Lakhs of people were permitted to gather on the banks of the holy Ganges and take baths throughout the month of the Kumbh Mela, with the SOPs breached more than observed., Even recently, on 20 June 2021, on the occasion of Ganga Dussehra, a crowd of more than one lakh was permitted to congregate at Har Ki Pauri in Haridwar and take a bath in the holy Ganges. The crowd failed to adhere to the SOP, and the civil administration of Haridwar equally failed to ensure strict implementation., Recently, in Nainital district, the Government opened the gates of Neem Karoli Baba Temple (Kainchi Dham). According to local newspapers, thousands of people poured into the small temple, again violating the SOP. The civil administration failed to enforce the SOP and no punitive action was taken against violators. These three examples show that the State Government has permitted large gatherings and allowed flouting of the SOP despite repeated assurances before the Supreme Court of India that the SOP would be strictly followed., This is the fourth occasion on which the State Government promises that the SOP dated 26 June 2021 will be implemented strictly. The SOP lays down many dos and don’ts for pilgrims, travel operators, restaurants and hotels, but it does not indicate who will ensure that each condition is followed in toto. For example, the SOP bans gutka, pan and tobacco, yet it is unclear how, in a crowd of 300‑600 persons, people will be prevented from chewing these items. Although it is claimed that pilgrims will be asked to use sanitizers and soaps repeatedly, it is absolutely unclear who will verify that they have indeed sanitized their hands., The SOP further claims that testing labs will be established at the Char Dham, but it does not specify how many labs will be set up, who will conduct the tests, or how quickly results will be available, especially given the dearth of technical staff in the State. It also states that staff working at pilgrim accommodations will be vaccinated, but it is unclear whether they will receive both doses. As mentioned above, more than 50 % of residents of Uttarkashi, Chamoli and Rudraprayag have not yet been fully vaccinated., The SOP claims that those affected by COVID‑19 will be kept in isolation wards, yet it is unclear how many isolation wards have been created at each Char Dham. According to a report submitted by the District Magistrate of Gangotri and Yamunotri, a forty‑bed additional COVID‑Dedicated Unit would be established at CHC, Chinyalisaur, but not until 30 July 2021. Ironically, while there is a lack of medical facilities throughout the State and the health‑care system is in deplorable condition, the Cabinet has decided to permit pilgrims to visit the shrines from 1 July 2021., While dealing with the sufficiency of medical infrastructure, Mr. Amit Negi, learned Secretary, Medical Health and Family Welfare, frankly admitted that although eight ventilators are available at Rudraprayag (the district of Kedarnath), six are dysfunctional. The district hospital has six oxygen concentrators, four of which are dysfunctional. The affidavit filed by Dr. Ashish Chauhan shows that no ambulance is being provided on the treks for pilgrims. Government hospitals at Tilwara, Guptkashi, Phata, Sonprayag and Gauri Kund each have a single ambulance. Tilwara Government Allopathic Hospital has only two oxygen tanks and two oxygen concentrators; the same applies to Phata and Sonprayag, though it is unclear whether these concentrators are functional. Although it is claimed that nineteen ambulances are available at Kedarnath, it is unclear how many are Advanced Life‑Saving Ambulances versus Basic Life‑Saving Ambulances. Thus, the medical facilities provided to pilgrims are too few and may be too late., The affidavit is silent on two essential issues: whether pilgrims would be permitted to take baths in the holy kunds (pools) at Badrinath and Kedarnath, and, considering that the monsoon has already struck and that Kedarnath suffered a disastrous tragedy on 16 June 2013 in which 5,748 persons lost their lives, what arrangements have been, are being, or will be made in case any natural calamity strikes any of the four Char Dham shrines., It is common knowledge that during the monsoon period the State witnesses unprecedented landslides and unpredictable cloudbursts. Media reports indicate that roads leading to the Char Dham are in terrible shape, making evacuation of pilgrims difficult, if not impossible, in the event of a natural calamity., According to the SOP prepared by the State Government, 600 persons per day would be permitted to gather at the Badrinath shrine, 400 at Kedarnath, 300 at Gangotri Dham and 200 at Yamunotri Dham. These limits apply to Darshan inside the temples, but there is no indication of how many people would be permitted to gather in the respective towns. Consequently, a large number of people may enter the towns beyond the limited number allowed inside the shrines, creating a risk that many could be stranded or even die if a cloudburst, heavy rains or landslides occur. Despite the past experience of the Kedarnath tragedy of 16 June 2013, the SOP is silent about such natural calamities., A similar question was raised with regard to permitting the Rath Yatra at Puri during the Rath Yatra Festival in Odisha. Considering that India was tackling the first wave of COVID‑19 at that time, the Supreme Court of India, in Vikash Parishad v. Union of India & Ors. [(2020) 7 SCC 264], directed the State of Odisha to close all entry points into the city of Puri—airports, railway stations, bus stands—during the festival, and to impose a curfew throughout the period when the Rath Yatra chariots were in procession. The Court further directed that no one be allowed to leave their residences during the curfew. Consequently, the people of Puri were prevented from joining the Rath Yatra., Mr. Shiv Bhatt, learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 58 of 2020, submits that the Supreme Court of India, in its order passed in Suo Motu Writ Petition (Civil) No. 3 of 2021 dated 30 April 2021, urged the Central and State Governments to consider imposing a ban on mass gatherings and super‑spreader events. Yet, the Cabinet decision dated 25 June 2021 would permit people of Badrinath, Kedarnath, Yamunotri and Gangotri to congregate at the shrines and also permit residents of the respective districts to gather at their temples, thereby contravening the directions issued by the Supreme Court of India., Furthermore, the decision taken by the Cabinet on 25 June 2021 is patently against the warnings of experts throughout the country, against the directions of the Central Government directing States to control and prevent the spread of the third wave, and against the practice of extending lockdowns observed by other States., Undoubtedly, the State is the parens patriae. Both Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights recognise the right to health as a fundamental right of the people. Article 21 of the Constitution of India imposes a duty on the State to protect the lives of the people. Article 39(e) of the Constitution of India obliges the State not to abuse the health of the people, while Article 39(f) directs the State to ensure that children develop in a healthy manner. Article 47 of the Constitution of India directs the State to raise the level of nutrition, standard of living and to improve the public health‑care system. Thus, an onerous duty has been cast upon the State to protect lives through whatever means are available., However, the Cabinet decision will unnecessarily expose people to the dangers of the third wave, violating Article 21 of the Constitution of India, Articles 39(e) and 39(f), and Article 47. It also ignores India’s commitments to international conventions., In the note submitted to the Cabinet, the reasons given by this Court for requesting the Cabinet to reconsider its decision to open the Char Dham Yatra were stated. The Cabinet has not only ignored those reasons but also ignored the warnings of the scientific community, the directions of the Central Government and the directions of the Supreme Court of India, which has been directing States to ensure that there is no gathering of crowds. In the present circumstances, the Cabinet decision is prima facie arbitrary and unreasonable and therefore prima facie violative of Article 14 of the Constitution of India., Considering the failure of the civil administration in implementing the SOPs repeatedly issued by both the Central Government and the State Government during the Kumbh Mela, Ganga Dussehra and the opening of the Neem Karoli Dham (Kainchi Dham), the Cabinet should have realised that the SOPs are flouted by the people and the civil administration lacks the wherewithal to implement them in the strict sense. Consequently, while deciding the issue, the Cabinet appears to have ignored a vital factor and its decision dated 25 June 2021 is prima facie arbitrary., There is thus a strong prima facie case in favour of the people for not permitting the Char Dham Yatra, even in a limited manner. The lives of the people may be exposed to the danger of the Delta Plus variant and the third wave of COVID‑19. If the Char Dham Yatra were permitted, we would again be inviting a catastrophe.
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In case we were to consider the balance of convenience, whether the balance of convenience tilts in favour of the Char Dham Devasthanam Board, which is consistently demanding that the Char Dham Yatra should be opened, or it tilts in favour of the public at large, whose lives may be jeopardised, and whose families may be shattered forever, obviously the balance of convenience is in favour of the people at large. For, in case gathering of 600 or 400 persons per day were to spread the Delta Plus variant, there are no means and ways to stop the spread of this terrible virus. The Delta Plus variant may again claim the lives of lakhs of people across this country. The loss of a family member, and as pointed out by the Scientific Community that the victims of the third wave would be children, the loss of a child is painful not only to the parents, but also to the nation at large. In case the Delta Plus variant is permitted to play havoc with the lives of our children, the nation is bound to lose a part of its next generation. Such an apocalypse would adversely affect the growth, and the progress of the entire country. Hence, the Char Dham Yatra will invariably cause irreparable losses to the people and to the country., Therefore, all the three elements, namely the existence of a strong prima facie case, the balance of convenience, and the irreparable loss suffered by the people at large, are in favour of the public. Hence, it would be in the public interest and in the interest of justice to stay the operation of the decision of the Honourable Cabinet dated 25.06.2021, vis-à-vis the opening of the Char Dham Yatra for the residents of District Uttarkashi, Rudraprayag and Chamoli, for a period of four weeks, and to direct the State Government not to permit the pilgrims to reach the Char Dham Temples during the period of four weeks. Hence, ordered accordingly., Technically, it may be argued that the decision dated 25.06.2021 is not under challenge before this Supreme Court of India. Thus, it cannot be stayed by this Supreme Court of India. However, technicalities of law cannot come in the way of protection of the people. The writ petitions deal with the ways and means of containing the spread of COVID-19 pandemic. The plea raised by the petitioners is that the State is unprepared to tackle the said pandemic. Therefore, over a period of time, this Supreme Court of India has been monitoring the steps taken by the State Government for containing the spread of COVID-19 pandemic. Hence, there has been supervision through a continuous mandamus over the acts and omissions of the State Government., During the pendency of the present petitions, initially, the Cabinet had taken a decision on 20.06.2021 to open up the Char Dham Yatra in a phased manner. At the request of this Supreme Court of India, the Cabinet has reviewed its decision. While it has not taken any concrete decision with regard to the second phase, it has reiterated its decision with regard to the first phase. Thus, the decision dated 25.06.2021 is a further step taken by the State Government. Therefore, it is imperative that this Supreme Court of India must consider whether the said act would aggravate or lessen the impact of COVID-19 or not. Having concluded that the decision of re-opening the Char Dham Yatra would lead to inviting a calamity, it is in these circumstances that this Supreme Court of India is compelled to stay the part of the Cabinet decision dated 25.06.2021. The said stay is strictly in the interest of the public, and in the interest of justice., This Supreme Court of India is well aware of the high religiosity of the people. Keeping in mind the devotion of the people, even on an earlier occasion, on 23.06.2021, this Supreme Court of India had suggested that live streaming of all the ceremonies carried out at the Char Dham Shrines should be done., Mr Om Prakash, the learned Chief Secretary, submits that the Government is in discussion with the priests of the Char Dham whether live streaming will be permitted or not. He further submits that a few priests may oppose the live streaming from the temples., Mr S N Babulkar, the learned Advocate General for the State of Uttarakhand, submits that live streaming may be prohibited by the Shastras. Therefore, it will not be possible to have live streaming of the ceremonies performed inside the Sanctum Sanctorum., Since our ancestors were unaware of the development of a technology that would permit live streaming, the possibility of our Shastras prohibiting live streaming of a religious ceremony is absolutely impossible., Moreover, the darshans of the deity are to be taken to as large an audience as possible. Therefore, live streaming would permit the devout people to have darshan of the deity in the comfort and safety of their homes. Moreover, live streaming is already being done by other temples across the country. The ceremonies being performed in different temples in different parts of the country are broadcast by various TV channels. Therefore the argument that live streaming may be prohibited by our Shastras is clearly unacceptable., Secondly, needless to say, it is for the State Government to decide whether the live streaming should be carried out or not. The decision cannot be left to the Char Dham Devasthanam Board, or to the priests of an individual temple. For, it is the constitutional duty of the State to protect its people from a pandemic. Therefore, the decision cannot be left either to the Board or to the priests. Even if there is an objection from a minority of priests, the said objection can easily be overruled by the State., In a chain of judgments, the Honourable Supreme Court of India has clearly observed that the argument taken by the State Government that it cannot control either a large crowd, or the unruly mob, does not lie in the mouth of the State Government. For, to argue the same, the State Government admits its inability to enforce the rule of law., Therefore, the State Government cannot plead that merely because a few priests may object to the live streaming, it will succumb to their pressure. What is of paramount importance is to save the lives of the people. It is indeed trite to state that when there is a conflict between the right of an individual and the right of a community, the latter will always take precedence over the former., Hence, in the interest of the people, this Supreme Court of India directs the Government to ensure that the ceremonies, the pujas and archanas carried out within the Sanctum Sanctorum of the Char Dham temples are live streamed for the benefit of the people at large. The Government should make sure that the live streaming is done throughout the country, so that the devotees may not only witness the deity, but may also pray to the same. The live streaming should be carried out as expeditiously as possible, and preferably within seven days of the receipt of the certified copy of this order., Mr Om Prakash, the learned Chief Secretary, Mr Dilip Jawalkar, the learned Secretary, Tourism, and Dr Ashish Chauhan, the learned Additional Secretary, Culture and Religion Affairs Department, are directed to inform this Supreme Court of India on the next date whether the live streaming of the Char Dham has commenced or not., Mr Amit Negi, the learned Secretary, Medical Health and Family Welfare, is also directed to be present before this Supreme Court of India on 07.07.2021.
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S.B. Civil Writ Petition No. 4176/1998 Ashish Arora son of Late Shri Brij Ballabh Arora, aged about 20 years, resident of M-28, Ram Nagar, Sodala, Jaipur. Petitioner versus Rajasthan State Electricity Board, through its Chairman, Vidyut Bhawan, Jyoti Nagar, Jaipur. Respondent connected with S.B. Civil Writ Petition No. 3349/2004 Dipendra Singh Mehta son of Late Shri Bhupal Singh, resident of Plot No.81, Moti Nagar, Jaipur. Petitioner versus the Chairman, Jaipur Vidyut Vitaran Nigam Limited, Vidyut Bhawan, Jyoti Nagar, Jaipur. Respondent. For Petitioners: Mr. Punit Singhvi. For Respondents: Mr. Aveesh Mourya. Reserved on: 04/04/2023. Pronounced on: 26/04/2023. Reportable Judgment., Both these petitions involve a common question of law and facts, hence with the consent of all the parties, arguments have been heard together to decide these petitions by this common order., The issue involved in these petitions is whether the respondent can make gender discrimination on the basis of being male or female., By way of filing these petitions, the petitioners are challenging the validity of the order dated 17 October 1996 issued by Rajasthan State Electricity Board, which reads as follows: According to the provisions of order No. RSEB/AS/Rectt./F.407/D.823 dated 23 August 1995, persons possessing qualification of high school or above are being appointed on a preferential basis to the post of Lower Division Clerk or any other equivalent post. Looking at the large number of persons already working in the clerical side, the matter was reconsidered by the M.I.M. in their meeting held on 19 August 1996 and it was decided that: (a) Persons (Male) possessing qualification of high school and above but below graduation shall be appointed as Helper‑I and posted at 33 KV Sub‑Station and line works etc. Only graduate persons (Male) shall be appointed as Consumer Complaint Clerk. (b) Persons (Female) possessing qualification of high school and above will continue to be appointed as ..., Counsel for the petitioners submitted that petitioner Ashish Arora was appointed on compassionate grounds on account of his father's death while in service, and petitioner Dipendra Singh Mehta was appointed in place of his mother, who quit her job under the Golden Hand‑shake Scheme. Counsel submitted that the petitioners possessed the requisite qualification (i.e., Secondary School Examination pass) for appointment to the post of Lower Division Clerk as per Rule 10.1(A)(2) of the Rajasthan State Electricity Board Ministerial Staff Regulations, 1962, but they were given appointment to the post of Helper Grade I on the basis of the order dated 17 October 1996, while similarly situated female candidates were given appointment to the post of Lower Division Clerk., Counsel submitted that the reason for discrimination was the large number of male candidates in comparison to female candidates. Counsel submitted that no discrimination can be done on the basis of sex, and such action of the respondent has violated the fundamental rights of the petitioners contained under Article 14 of the Constitution of India. Counsel submitted that during the pendency of these petitions, the petitioners were given appointment to the post of Lower Division Clerk in the year 2006 through a regular selection process, and therefore the respondent should be directed to provide the benefits of the post of Lower Division Clerk to the petitioners with effect from their initial date of appointment., Per contra, counsel for the respondent opposed the arguments raised by counsel for the petitioners and submitted that, looking at the large number of male candidates, appointment was given to them to the post of Helper Grade I, and, looking at the smaller number of female candidates, appointment was given to them to the post of Lower Division Clerk. He further submitted that these petitions have become infructuous because appointment has already been given to the petitioners to the post of Lower Division Clerk during the pendency of these petitions, hence interference of the High Court of Rajasthan is not warranted., Heard and considered the submissions made at the Bar., This fact is not in dispute that Regulation 10 of the Regulations 1962 deals with academic qualification for the post of Lower Division Clerk and reads as follows: A candidate for direct recruitment to the Lower Division Clerk post must have passed the Secondary Examination of the Rajasthan University or Education Board or a corresponding examination of the same or any other university or any other examination recognized as equivalent by the Board for the purpose of these regulations and must possess a working knowledge of Hindi written in Devanagari script., The candidate must know Hindi or English type‑writing having a speed of 30 words per minute in Hindi or 40 words per minute in English, respectively. Note: The type test speed limit for Lower Division Clerks or equivalent appointed on compassionate grounds shall be 20 words per minute in Hindi and 25 words per minute in English, at par with the type limits fixed by the Language Department, Government of Rajasthan., Perusal of Regulation 10.2 indicates that a candidate for direct recruitment to the post of Lower Division Clerk must have passed the Secondary School Examination. This regulation nowhere makes a discrimination between male and female candidates., Article 14 of the Constitution of India prohibits the State from denying any person equality before the law or equal protection of the laws. Article 16 applies as a general rule of equality as laid down in Article 14, with special reference to opportunity for appointment and employment under the State. Article 15(1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth. It is an extension of Article 14, which expresses the principle of equality. Therefore, no citizen shall be discriminated against on the grounds of religion, race, caste, sex or place of birth. Article 16 takes its root from Article 14 and ensures equality of opportunity in matters of employment under the State. Consequently, the fundamental right to equality means that persons in like situations, under like circumstances, should be treated alike., Article 14 of the Constitution of India ensures equality and its main object is to protect persons similarly placed against discriminatory treatment. The equality before law guaranteed under Articles 14, 15 and 16 is a constitutional admonition against both the legislative and executive organs of the State. Therefore, neither the legislature nor the rule‑making authority can make a law or a rule, issue any guidelines, circulars or administrative instructions, which would be in violation of Articles 14 and 15 of the Constitution of India., The issue in the case at hand does not concern a statute but a guideline in the form of a policy; a policy in the form of a guideline is therefore on a lower pedestal than that of a statute. If statutes are held to be violative of the tenets of Article 14 of the Constitution of India by the constitutional courts because they depict discrimination resulting in gender bias, a guideline in the form of policy would pale into insignificance if it portrays such discrimination, even to its remotest sense., The afore‑analyzed factual expose and the legal exposition lead to an unmistakable conclusion that the guideline portrays discrimination on the basis of gender and cannot be permitted to remain as a guideline. Therefore, the guidelines contravene the tenets of Articles 14, 15 and 16 of the Constitution of India. Any rule, policy or guideline that violates the rule of equality can be struck down as unconstitutional., In Air India Cabin Crew Association v. Yeshaswinee Merchant (2003) 6 SCC 277, the Honorable Supreme Court of India has held that discrimination only on the basis of sex is not permissible subject to one exception and observed as follows: In English law, the but‑for‑sex test has been developed to mean that no less favourable treatment is to be given to women on a gender‑based criterion which would favour the opposite sex, and women will not be deliberately selected for less favourable treatment because of their sex. It is on this but‑for‑sex test that, in the Nergesh Meerza case, the three‑Judge Bench of the Supreme Court of India did not find the lower retirement age from flying duties of air hostesses to be discrimination only based on sex. It found that the male and female members of crew are distinct cadres with different conditions of service. The service regulation based on the agreements and settlement fixing a lower retirement age for air hostesses was not struck down. The constitutional prohibition on the State discriminating against citizens only on the basis of sex, however, does not prohibit special treatment to women in employment on their own demand., Further, the Honorable Supreme Court, in Charu Khurana v. Union of India (2015) 1 SCC 192, while considering the question of gender justice, observed at paragraphs 33 and 41 as follows: 33. On a proper understanding of clause (e), it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced. Dignity is the quintessential quality of a personality and a human being always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) must be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and to ensure that they are not deprived on grounds of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. 41. The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender. It is apt to note that reservation of seats for women in panchayats and municipalities has been provided under Articles 243(d) and 243(t) of the Constitution of India. The purpose of the constitutional amendment is that women in India are required to participate more in a democratic set‑up especially at the grass‑root level. This is an affirmative step in the realm of women empowerment. The 73rd and 74th Amendments of the Constitution, which deal with the reservation of women, have the avowed purpose that women should become parties in the decision‑making process in a democracy governed by the rule of law. Their active participation in the decision‑making process has been accentuated, and the secondary role historically given to women has been sought to be transformed into a primary one. The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities, and if a woman is debarred at the threshold from entering a profession for which she is eligible and qualified, it is virtually impossible to conceive of equality. It also clips her capacity to earn her livelihood, which affects her individual dignity., In National Legal Services Authority v. Union of India (2014) 5 SCC 438, the Supreme Court of India recognized that gender identity is an integral part of sex within the meaning of Articles 15 and 16 of the Constitution of India and that no citizen can be discriminated against on the ground of gender. The Supreme Court observed: We therefore conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference which has the effect of nullifying or transposing equality by law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the transgender community., The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender. Article 14 of the Constitution provides that the State shall not deny any person equality before law or equal protection of law. Article 16(1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and Article 16(2) further provides that no citizen shall, on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. A reading of these provisions shows that in matters of recruitment to employment, the State will not discriminate between men and women and that a citizen will not be ineligible for employment or office under the State on the ground of sex only., In light of the aforesaid decisions and constitutional provisions, exclusion of male candidates from receiving compassionate appointment to the post of Lower Division Clerk is based solely on gender discrimination and is also in violation of Clause 10.2 of the Regulations 1962. In other words, the classification is not based on any rational basis having reasonable nexus with the object sought to be achieved. The respondents cannot discriminate against the petitioners in granting appointment to the post of Lower Division Clerk merely because similar female candidates were fewer in number compared to male candidates., Thus, in view of the authoritative judgments of the Honorable Apex Court, the impugned order dated 17 October 1996 is held to be violative of Articles 14 and 16 of the Constitution of India and accordingly the same is hereby quashed and set aside., The writ petitions stand allowed. The respondent is directed to count the services of the petitioners on the post of Lower Division Clerk with effect from their initial appointment to the post of Helper Grade I and to grant them all consequential benefits within a period of three weeks from the date of receipt of a certified copy of this judgment., Before parting with this judgment, it is directed that, on account of the quashing of the impugned order dated 17 October 1996, it will not provide a cause of action to any candidate in the future and will apply only to the cases pending before the High Court of Rajasthan on the date of this judgment., Stay application and other applications, if any, also stand disposed of.
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Applicant: Gufran\nOpposite Party: State of Uttar Pradesh through Secretary Home, Lucknow\nCounsel for Applicant: Prashansa Singh, Suresh Kumar Mishra\nCounsel for Opposite Party: G. A., Rajbaksh Singh, Ram Baksh Singh, Hon'ble Mohammad Faiz Alam Khan, Justice, Shri Rajbaksh Singh, learned counsel appearing for the complainant/informant, submits that this case be taken at 2:15 pm today, by which time he may file a counter‑affidavit., Counter‑affidavits filed today by the State as well as by the informant/complainant are taken on record. Learned counsel for the accused‑applicant, Shri Rajbaksh Singh, and learned Additional Government Advocate for the State were heard and the record was perused., This bail application has been moved by the accused‑applicant Gufran for grant of bail in Crime No. 110/2023, under Sections 376 and 506 of the Indian Penal Code, Police Station Naka Hindola, District Lucknow, during trial. Learned counsel for the accused‑applicant submits that it is a case of false implication., The first information report of this case was lodged by the informant/victim herself on 25‑07‑2023 alleging that for the last three years she was in love with the applicant, but he, on the pretext of marrying her, established sexual relations, prepared an obscene video and is blackmailing her, and now also refusing to marry. On 23‑05‑2023 he took her to a hotel, established sexual relations and made a video of the same, intimidating her. He also prepared a video on 19‑06‑2023 and sent some photographs to her father. The prosecutrix, in her statement recorded under Sections 161 and 164 of the Criminal Procedure Code, narrated the same facts., Learned counsel for the applicant submits that the prosecutrix has admitted to being in a relationship with the applicant since 2019 and, in the last more than three years, she has not made any complaint to any public authority. It is likely that she was a consenting party and, being about 19 years old at the time of the alleged incident, no offence has been committed by the applicant. Moreover, the oral allegations are not corroborated by any medical evidence as the prosecutrix has refused to undergo any internal medical examination. The sexual activity alleged to have taken place may only be termed a consensual relationship of two adults and therefore cannot be termed ‘sexual assault’; consequently, the investigating officer has committed material illegality in submitting the charge‑sheet., The applicant has been in jail since 25‑07‑2023 and has no criminal history. The charge‑sheet in this case has already been submitted and there is no apprehension that, if released on bail, the applicant may flee from the course of law or otherwise misuse his liberty., The Additional Government Advocate opposes the prayer for bail on the ground that the applicant has committed a heinous offence and, having regard to the material evidence available against the applicant, he is not entitled to be released on bail, although he could not controvert the other factual submissions made by learned counsel for the applicant., Counsel appearing for the informant/complainant/victim vehemently opposes the prayer for bail on the ground that the applicant, by extending a false promise of marriage, has sexually exploited the prosecutrix and is now refusing to marry her. Some photographs sent by the applicant to the investigating officer have been used to blackmail the prosecutrix. Accordingly, having regard to the material collected by the investigating officer, the applicant is not entitled to be released on bail., The record reveals that the prosecutrix is about 20 years old, as mentioned in her first information report. Allegations include sexual assault on the pretext of marriage, filming an obscene video of the sexual activity and blackmailing her on the pretext of making the video viral. The defence argues that the prosecutrix was a major and her decision to indulge in sexual activity was conscious, therefore it may not be termed sexual assault or rape, especially since no complaint was made to any public authority in the last more than three years. Reliance is placed on the law laid down by the Hon'ble Supreme Court in Shambhu Kharwar v. State of Uttar Pradesh (2022 SCC OnLine 1032) and Naim Ahamed v. State (NCT of Delhi) (2023 SCC OnLine SC 89), which hold that a consensual activity between two adults may not be given the colour of sexual assault committed on a mistake of fact., The charge‑sheet in this case has already been filed. The applicant has been in jail since 25‑07‑2023 without any previous criminal history. The presence of the applicant could be secured before the trial court by placing adequate conditions., Having regard to the overall facts and circumstances of the case, the nature of the offence, the evidence, the severity of punishment, and the submissions of the learned counsel for the parties, I am of the considered view that the applicant has made out a case for bail. The bail application is thus allowed. Let the accused‑applicant Gufran be released on bail upon furnishing a personal bond with two sureties in an amount satisfactory to the Hon'ble High Court of Uttar Pradesh, subject to the following conditions: The applicant shall not attempt to contact the prosecutrix or any of her family members or any prosecution witness directly, indirectly or through any social platform such as WhatsApp or Facebook and shall file an undertaking before the trial court; The applicant shall not display any picture of the prosecutrix as his display picture on WhatsApp or Facebook, and violation of this condition alone shall be sufficient to cancel the bail; The applicant shall not tamper with prosecution evidence by intimidating or pressurising witnesses during investigation or trial; The applicant shall cooperate in the trial sincerely without seeking any adjournment; The applicant shall not indulge in any criminal activity after being released on bail; In case of breach of any of the above conditions, it shall be a ground for cancellation of bail; Identity, status and residence proof of the applicant and sureties shall be verified by the Hon'ble High Court of Uttar Pradesh before the bonds are accepted., Observations made herein‑above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this court on the merits of the case.
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Civil Writ Jurisdiction Case No. 8785 of 2020, Century Business Private Limited, a company incorporated under the laws of India having its registered office at 108, Emarat Firdaus, Exhibition Road, Patna‑800001, through its director Shashi Kumar Chaudhary, son of Sri Banwari Lal Chaudhary, petitioner, versus the Chief Electoral Officer, 7 Sardar Patel Marg, Mangles Road, Patna; the Additional Chief Electoral Officer, 7 Sardar Patel Marg, Mangles Road, Patna‑800015; and the District Election Officer‑Cum‑District Magistrate, Bihar, Patna, respondents., Appearance: for the petitioner – Mr. S. D. Sanjay, Senior Advocate and Mr. Raju Giri, Advocate; for the respondents – Mr. Siddharth Prasad, Advocate. Date: 21‑10‑2020. The matter was heard by the Patna High Court., The present writ petition has been filed for a direction to the respondents to allow the petitioner, a private company registered under the Companies Act, 1956, to put up 950 hoardings at different sites in the State of Bihar, including unipoles, billboards and wall wraps, on private properties as part of an election campaign., The petitioner claims to have been engaged by the Bharatiya Janata Party for putting up such hoardings., The necessity for filing this writ petition arose because the authorities concerned did not give any categorical reply to the petitioner’s representation seeking approval from the Chief Electoral Officer, Bihar, for putting up the hoardings with the permission of the owners of the properties as mandated under the Prevention of Defacement of Property Act, 1987., Mr. S. D. Sanjay, Senior Advocate for the petitioner, has also brought to the attention of the Patna High Court that the District Electoral Officer has sought guidelines from the Chief Electoral Officer, Bihar, for granting permission to the petitioner for putting up hoardings on behalf of a political party., It must be stated that this case was listed today on the mention that the petitioner has been allowed., Mr. S. D. Sanjay, Senior Advocate, submits that he personally visited the office of the Chief Electoral Officer, Bihar, for seeking permission on behalf of the petitioner but was informed that the stance of the Election Commission, in view of the Prevention of Defacement of Property Act, 1987 and the amendment to the Act in Section 3, is that no such hoardings would be permitted to be put up by any political party; they would be allowed only for persons contesting the election., The relevant provision of the Prevention of Defacement of Property Act, 1987, Section 3, reads as follows:\n\n(1) Anybody who defaces any property in public view by writing or marking with ink, chalk, paint or any other material, except for the purpose of indicating the name and address of the owner or occupier, shall be deemed to have committed an offence and shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.\n\n(2) Where any offence under sub‑section (1) is for the benefit of some other person, company, body corporate or association of persons, the other person or its president, chairman, director, partner, manager, secretary, agent or any other officer shall, unless he proves that the offence was committed without his knowledge or consent, be deemed guilty of such offence.\n\n(3) The owner or occupier of a private property, after giving written consent, may permit any person or persons contesting an election, to which the Representation of the People Act, 1951 is applicable, either as an independent candidate or on the symbol of a recognized political party, to use the private property for the purpose of election campaigning during the period notified by the Election Commission., From the provision it is clear that defacing public property is an offence punishable under the Act, and if the offence is committed for the benefit of another person or association, the head of that association is liable unless he proves lack of knowledge or consent. Sub‑clause (3) further specifies that the owner of private property may, with written consent, permit any person or persons contesting an election to use the property for election campaigning., Section 2 defines defacement as impairing or interfering with the appearance or beauty of a property, or damaging, disfiguring, spoiling or injuring in any other way a building, structure, wall, tree, fence, post or any other erection. Defacement may be by decoration, lettering, ornamentation, etc., produced by a stencil, which falls within the domain of writing., The Act was enacted because, in the past, political parties during elections indulged in defacement of public as well as private buildings by sticking posters and wall writings, often without the owners’ permission. After elections, the cost of removing such posters was borne by the public exchequer for public buildings and by individuals for private buildings, causing undue loss to the public. To avoid this, the Act was implemented, and most States have local laws to prevent such defacement and to bring the guilty to book., Considering this, the Election Commission, in exercise of its powers of superintendence under Article 324 of the Constitution of India, has issued the Model Code of Conduct for the guidance of political parties and candidates. Clause VI of Part I of the Model Code of Conduct provides that no political party or candidate shall permit its followers to use an individual’s land, building, compound wall, etc., without permission for erecting flagstaffs, suspending banners, pasting notices, writing slogans, etc. A consolidated instruction has been issued with respect to the prevention of defacement of public and private places., With respect to defacement of private buildings, if the local law does not expressly permit wall writings, pasting of posters or any permanent or semi‑permanent defacement that is not easily removable, such actions shall not be resorted to under any circumstance, even if consent of the owner has been obtained. If the local law permits, the contesting candidates or political parties shall obtain prior permission from the owner and transmit information stating the name and address of the owner, the permission obtained, and the expenditure incurred or likely to be incurred., The petitioner’s counsel submits that the Prevention of Defacement of Property Act, 1987 was intended to include political parties, which are not abstract entities but consist of groups of persons. The Model Code of Conduct and the local law regarding defacement must be read together, and the spirit behind the enactment of the local law must be understood before deciding whether persons permitted to put up hoardings after obtaining consent from private property holders would include political parties., The argument is that any person or persons who contests elections, either independently or under the banner of a political party, when the symbol of such party is given to them, should not be excluded from the phrase ‘person or persons’ in Sub‑clause (3) of Section 3 of the Act. The counsel further points out that the State of Jharkhand has a similar local law and that the Chief Electoral Officer, Jharkhand, permitted political parties to put up hoardings, so two different standards cannot be adopted in contiguous States., It is also submitted that putting up hoardings does not amount to defacement as defined in Section 2A of the Act. Not allowing political parties to put up hoardings would defeat the purpose of controlled campaigning. Additionally, the elections are being held during the Covid‑19 pandemic, and hoardings by political parties would reduce the need for physical congregation of persons at individual houses., The petitioner therefore requests that it be permitted to put up the hoardings and that the respondents be directed to allow the request made by the petitioner, who has been engaged by a political party for putting up hoardings throughout the State of Bihar., Mr. Siddharth Prasad, Advocate for the Chief Electoral Officer, Bihar, contests the arguments and submits that the Prevention of Defacement of Property Act, 1987 was enacted for the specific purpose of preventing defacement and the squandering of public or private money in restoring buildings after defacement. The Act has an overriding effect, as clear from Section 6 thereof. Section 3(3) is explicit that only persons contesting the elections are permitted to put up hoardings over private properties after obtaining requisite permission, deliberately excluding political parties as a class., He further submits that a candidate has a budgetary limit for campaigning and therefore would be discreet in putting up hoardings, whereas no such limit is prescribed for political parties. Permitting political parties to put up hoardings would lead to widespread defacement of the State, making restoration costly for the public., The counsel argues that statutes must be interpreted in their literal sense unless such interpretation causes mischief. When the language of an Act or rule is clear, it does not require artificial construction. The construction of a rule must not be strained to include cases plainly omitted from the natural meaning of the words, as held in *Nelson Motis v. Union of India* (AIR 1992 SC 1981). In *Gurudevdatta V. K. S. Maryadit & Ors v. State of Maharashtra* (2001 (4) SCC 534), the Supreme Court clarified that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to absurdity or the context suggests otherwise. The golden rule is that the words of a statute must prima facie be given their ordinary meaning, and when the words are plain and unambiguous, courts are bound to give effect to that meaning irrespective of the consequences., It has also been submitted that in the last parliamentary elections, following the mandate of the Prevention of Defacement of Property Act, 1987, no political party was permitted to put up hoardings on private buildings even after obtaining permission from individual property holders., After hearing the learned counsel, the Patna High Court is of the view that Section 3(3) of the Bihar Prevention of Defacement of Property Act, 1987 would be rendered meaningless if the phrase ‘person or persons’ is not understood to include a political party. The reasons are as follows:\n\n(a) The reference to the Representation of the People Act, 1951 and the symbol of a recognized political party indicates that ‘persons’ includes a political party, which consists of persons and does not exist in a vacuum.\n\n(b) The purpose of the local law is to prevent defacement and limit squandering of money in restoring property; the Model Code of Conduct aligns with this spirit and specifies how permission from private property holders shall be obtained.\n\n(c) The State of Jharkhand, which has a local law pari materia with that of Bihar, has permitted political parties to use private property for election campaigning after obtaining prior permission.\n\n(d) No two standards can be applied in interpreting an Act or rule in two contiguous States.\n\n(e) With the strict measures in the Model Code of Conduct, authorities can track entities for recovering money or restoring defacement; hoardings by a political party would prevent piecemeal and sporadic hoardings and reduce chances of irreparable defacement.\n\n(f) The golden rule of construction is preferred, but if strict interpretation causes mischief, the rule may be read down to give practical effect.\n\n(g) Unless the phrase ‘person or persons’ is supplemented to include political parties, the legislative intention would be emasculated.\n\n(h) The interpretation suggested by the petitioner’s counsel aligns with the obvious intention of the legislature., For the aforesaid reasons, the Patna High Court holds that Section 3 of the Prevention of Defacement of Property Act, 1987 includes political parties, subject to all other conditions provided in the Act and the Model Code of Conduct., The Chief Electoral Officer, Bihar, ought to have responded to the petitioner’s letters. Had the stand of the Chief Electoral Officer been disclosed in black and white, much of the litigation time would have been saved., The statement made by Mr. Prasad that in the last parliamentary election no political party was permitted to use private buildings for hoardings does not convey complete information as to whether a request was made or an instruction issued. Hence, the Patna High Court opines that the stand of the Chief Electoral Officer should have been disclosed on the petitioner’s representation., The writ petition is therefore allowed and disposed of with a direction to the respondents that the petitioner be permitted to put up the hoardings in the State of Bihar, subject to the conditions enumerated in the Act and to be fulfilled by the petitioner, and with the further caveat that there is no other impediment to granting the prayer., It is expected that the decision at the level of the respondents shall be taken as expeditiously as possible, keeping in mind that the elections have been notified and the three phases are scheduled for 28‑10‑2020, 03‑11‑2020 and 07‑11‑2020 respectively., — Ashutosh Kumar, Judge.
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Criminal Miscellaneous III Bail Application No. 12925/2023 Vikas Kumar, son of Shri Indraj Singh, resident of Village Kisari, Post Bahadurwas, Police Station Mandawa, District Jhunjhunu, Rajasthan (currently confined at Central Jail Jaipur, District Jaipur) Petitioner versus State of Rajasthan, through Public Prosecutor; Sundarmal, son of Prithviraj, resident of Village Bilochawala, Goluwala, Hanumangarh (currently Police Inspector, Criminal Investigation Department Zone Ganganagar, Kotwali Ganganagar, Rajasthan) Respondents. For Petitioners: Mr. Kapil Prakash Mathur, Mr. Sukhdev Singh Solanki. For Respondents: Mr. Babulal Nasuna, Public Prosecutor. Date of Pronouncement: 29 November 2023., This is a third bail application filed under Section 439 of the Criminal Procedure Code on behalf of the accused‑petitioner who is in custody since 08 June 2020 in connection with FIR No.01/2020 registered at Special Police Station, Rajasthan, Jaipur (CID Security), for offences under Sections 3 and 9 of the Official Secrets Act 1923 and Section 120‑B of the Indian Penal Code., The previous bail application (No.2919/2022) filed on behalf of the accused petitioner was dismissed as withdrawn by this Court vide order dated 08 August 2023 with liberty to file a fresh bail application before the learned trial court under the provisions of Section 437(6) of the Criminal Procedure Code. After passing of the order dated 08 August 2023, the petitioner preferred a bail application under Section 439 Criminal Procedure Code read with Section 437(6) Criminal Procedure Code before the learned trial magistrate. However, the learned trial magistrate dismissed the application of the accused petitioner. Thereafter, the petitioner preferred a bail application under Section 439 Criminal Procedure Code read with Section 437(6) Criminal Procedure Code before the learned Sessions Court, Jaipur Metropolitan‑I, from where it was transferred to the court of learned Additional Sessions Judge No.8, Jaipur Metropolitan‑I. The bail application of the accused petitioner was also dismissed by the learned Sessions Court vide order dated 18 September 2023. Hence, this is the third bail application., Brief facts of the case are that on the basis of a typed report submitted by Sundermal, Police Inspector, CID Zone Ganganagar, an FIR No.01/2020 was registered at Special Police Station, CID Security against Vikas Kumar, petitioner herein, and Chiman Lal for offences under Sections 3 and 9 of the Official Secrets Act and Section 120‑B of the Indian Penal Code. The FIR alleged that secret information had been received by the Technical Cell of the Department that the accused petitioner, working in Gangapur Army Area, was in contact with Pakistani intelligence through social media and was providing military‑related confidential information to them, which is a threat to national security. It is also alleged that one Chiman Lal, working in Mahajan Firing Range, was also indulged in such act with the accused petitioner., It is contended by learned counsel for the petitioner that the accused petitioner has been falsely implicated in this case. He has been in custody since 08 June 2020 and has suffered incarceration of nearly three years and six months, thereby infringing his right to life and personal liberty guaranteed under Article 21 of the Constitution of India. Counsel further submits that while rejecting the second bail application, this Court gave liberty to the petitioner to move a fresh bail application under the provisions of Section 437(6) Criminal Procedure Code before the learned trial court. The petitioner filed an application under Section 439 Criminal Procedure Code read with Section 437(6) Criminal Procedure Code before the learned magistrate, who dismissed it on the ground that the provisions of Section 437(6) are not mandatory and bonafide efforts are being made to conclude the trial. Subsequently, the petitioner moved a bail application before the learned Sessions Court, which also dismissed the application while agreeing with the magistrate’s observation., Learned counsel submits that while rejecting the bail application, the learned Sessions Court observed that perusal of the order‑sheets of the learned magistrate court revealed that bonafide and serious efforts are being made to conclude the trial. He notes that after recording pre‑charge evidence, on 17 April 2023 charges were framed against the accused petitioner and the matter was posted for 01 May 2023 for prosecution evidence. To date, statements of only two prosecution witnesses, Sundar (PW‑1) and Omprakash (PW‑2), have been recorded, whereas there are 37 cited witnesses in the prosecution list. He argues that Section 437(6) provides that if, in any case triable by a Magistrate, the trial of a person accused of a non‑bailable offence is not concluded within sixty days from the first date fixed for taking evidence, such person, if in custody throughout that period, shall be released on bail to the satisfaction of the Magistrate unless reasons are recorded in writing to the contrary. Counsel submits that this provision was enacted to create a legal right for speedy trial, and both the learned magistrate and the learned Sessions Court erred in not extending bail. He contends that the provisions are mandatory and, since trial has not concluded within 60 days for reasons not attributable to the accused, the petitioner deserves bail. He also points out that the petitioner has already served half of the maximum sentence that could be awarded, invoking Section 436A Criminal Procedure Code in his favour. He therefore prays that the instant bail application be accepted and the petitioner released on bail, emphasizing that period of custody is a relevant consideration. He relies on the following judgments: (i) Ashim Kumar Haranath Bhattacharya vs National Investigation Agency (2022) 1 SCC 695; (ii) Union of India vs K.A. Najeeb (2021) 3 SCC 713; (iii) Iqbal Ahmed Kabir Ahmed vs State of Maharashtra., Per contra, learned Public Prosecutor vehemently opposes the bail application. He submits that there is a serious allegation that the petitioner provided confidential military information to Pakistan intelligence. He further submits that sub‑section (6) of Section 437 Criminal Procedure Code confers discretionary power on the Magistrate to refuse bail after recording reasons, and therefore release of the accused on bail when the trial is not concluded within sixty days cannot be held mandatory. He thus submits that rejection of the bail application under Section 439 Criminal Procedure Code read with Section 437(6) Criminal Procedure Code is just and proper and does not call for any interference by this Court. In support of his arguments, he relies on: (i) Subhojit Datta vs State of Bihar (2007) SCC Online Pat 159; (ii) Mahesh Kumar Sharma vs State of Rajasthan (S.B. Criminal Miscellaneous Second Bail Application No.6511/2014, decided on 01 October 2014); (iii) Arjun Singh vs State of Rajasthan (S.B. Criminal Miscellaneous Bail No.3636/2019, decided on 03 April 2019)., I have heard and considered the arguments advanced at the bar and have gone through the material available on record., Admittedly, on 07 September 2020 a complaint was filed against the petitioner before the learned Magistrate. Thereafter, pre‑charge evidence was recorded and on 17 April 2023 charges were framed against the petitioner and the case was ordered to be posted for 01 May 2023 for recording prosecution evidence. Thus, sixty days have already passed from the first date fixed for recording evidence. Moreover, the trial is still pending and statements of only two witnesses out of 37 cited witnesses have been recorded, and the delay is not attributable to the accused petitioner. This lethargic attitude of the prosecution is seriously violating the fundamental right to a speedy trial guaranteed under Article 21 of the Constitution of India, and in such a situation, conditional liberty must override the statutory embargo. In Jahir Hak vs State of Rajasthan (2022) AIR SC 3047, bail was extended by the Supreme Court considering observations in Union of India vs K.A. Najeeb (2021). Even under special legislations such as the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985, which impose rigorous bail conditions, this Court in Paramjit Singh v. State (NCT of Delhi) (1999) 9 SCC 252, Babba v. State of Maharashtra (2005) 11 SCC 569, and Umarmia v. State of Gujarat (2017) 2 SCC 731 enlarged bail where the accused had been in jail for an extended period with little prospect of early trial completion. The constitutionality of harsh bail conditions in such special enactments has been justified on the basis of speedy trials to protect innocent civilians., Yet another reason persuading us to enlarge the respondent on bail is that Section 43‑D(5) of the Unlawful Activities (Prevention) Act is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act, which requires the court to be satisfied that the accused is prima facie not guilty and unlikely to commit another offence while on bail, the Unlawful Activities (Prevention) Act imposes no such precondition. Section 43‑D(5) merely provides an additional ground for the court to refuse bail, alongside considerations such as gravity of the offence, possibility of tampering with evidence, influencing witnesses, or the accused absconding., In Mehmood Mohammed Sayeed vs State of Maharashtra (2001) 7 SRJ 336, the Supreme Court, noting that the trial might take a long time, disposed of the appeal and released the appellant on bail with conditions. The order read: “Leave granted. Though learned counsel for the State of Maharashtra opposed the appellant’s release on bail, we have taken note of the fact that the appellant has been in custody since 18‑12‑2000. The offences alleged include Sections 463, 467, 461, 419 read with Section 120 of the Indian Penal Code. Investigation is completed and the charge‑sheet has been laid; only the trial remains. We do not know how long the trial will take, particularly given the condition of the trial courts in Maharashtra. When learned counsel for the State noticed our inclination to release the appellant on bail, he alternatively pleaded that stringent conditions may be imposed because of alleged links with international terrorist gangs. We therefore impose the following conditions: (1) He shall report to Worli Police Station, Mumbai, every Monday between 4.00 p.m. and 6.00 p.m. until further orders; and (2) If he wishes to leave the limits of Mumbai City Corporation, he shall obtain permission from the trial Court. If he complies with these conditions, he shall be released on bail upon executing a bond of Rs 2 lacs with two solvent sureties to the satisfaction of the trial Court. This appeal is disposed of accordingly.”, Thus, it is an admitted position on record that the trial has not been completed within the prescribed time period and will take a long time to conclude. At this stage, it is appropriate to refer to Sub‑section (6) of Section 437 Criminal Procedure Code. The provision reads: “Section 437. When bail may be taken in case of non‑bailable offence: (1)… (2)… (6) If, in any case triable by a Magistrate, the trial of a person accused of any non‑bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.”, The provision is in two parts. The first part states that if, in any case triable by a Magistrate, the alleged offence is non‑bailable and the trial is not concluded within sixty days from the first date fixed for taking evidence, the person shall be released on bail to the satisfaction of the Magistrate. The second part confers discretion on the Magistrate to record his satisfaction and, after recording reasons in writing, to refuse bail., In Haricharan Ramteke vs State of Chhattisgarh (2002) 3 CRJ 118, while dealing with Section 437(6) Criminal Procedure Code, the Court held that the section is an enabling provision conferring powers upon the court and clothing the accused with the right to apply for and obtain bail. The Court observed that although Sub‑section (6) is mandatory in nature, it allows a small discretion for the Court to reject an application for special reasons recorded in writing. Lower courts had rejected bail on the ground that they were overloaded with work and witnesses could not be examined due to lack of expert reports. This Court held that such reasons are not germane for rejecting bail; a Court, regardless of workload, must discharge its judicial functions. The provision is an enabling one that cannot be applied mechanically; the Court must record specific reasons for denial. When offences are triable by a Sessions Court and trials are delayed, both the Sessions Court and the High Court may direct release on bail. However, when a Magistrate is vested with specific powers under Section 437(6), he cannot reject an application on grounds attributable to prosecution or police lapses. The Court criticized the lower courts for being perverse and for failing to appreciate that an accused cannot be kept in jail indefinitely, emphasizing that liberty must be respected by both the public and the judiciary. Both petitions were allowed., From a plain reading of the provision and the observation in Haricharan Ramteke, it is clear that the provisions of Section 437(6) Criminal Procedure Code are mandatory in nature and only a very limited discretion is available to the learned magistrate to refuse bail of an under‑trial prisoner, subject to recording reasons in writing. Such reasons may include possibility of tampering with evidence, risk of the accused absconding if released, delay attributable to the accused, or reasonable grounds for believing that release would defeat the ends of justice., Section 436A Criminal Procedure Code provides for the maximum period of detention for an under‑trial prisoner. It reads: “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified) undergone detention for a period extending up to one‑half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order the continued detention of such person for a period longer than one‑half of the said period or release him on bail instead of the personal bond with or without sureties; provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the offence under that law.”, Admittedly, in the present case the petitioner is facing trial before the magistrate court and cannot be awarded a sentence of more than seven years. He has been in custody since 08 June 2020 and has already undergone one‑half of the maximum sentence that could be imposed upon conviction. To date, out of 37 cited witnesses, only two have been examined since the first date fixed for prosecution evidence, 01 May 2023., Thus, considering the overall facts and circumstances and in view of the foregoing discussion, I am of the considered opinion that the instant application deserves to be allowed. It is hereby directed that the accused petitioner Vikas Kumar, son of Shri Indraj Singh, arrested in connection with FIR No.01/2020 registered at Special Police Station, Rajasthan, Jaipur (CID Security), shall be released on bail provided he furnishes a personal bond of Rs 1,00,000 (Rupees One Lakh only) together with two sound and solvent sureties of Rs 50,000 (Rupees Fifty Thousand each) to the satisfaction of the learned trial court, with the stipulation that he shall appear before that Court and any court to which the matter is transferred on all subsequent dates of hearing and as and when called upon to do so., The petitioner shall report to the concerned police station on the first Monday of every month until the trial is concluded. He shall not be involved in a similar offence during the currency of the bail. In case a breach of this condition is reported or comes to the notice of the Court, the trial court may cancel the bail granted to him by this Court., Sudhir Asopa
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id_720
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Uday S. Jagtap and Kondiba Shankar Nikam (deceased through Legal Representatives) are the appellant. Balasaheb Kisan Bhosale and others are the respondents. Mr. Nikhil Wadikar in behalf of Mr. Nandu Pawar appears for the appellant. Mr. Vaibhav Gaikwad appears for respondent number one. Mr. Kiran Patil appears for respondents numbers 6B, 6C, 7A to 7D., Learned counsel for the appellant has removed the mask despite guidelines., The Standard Operating Procedure for resumption of physical hearing at the Principal Seat, High Court of Bombay with effect from 11th January 2021 contemplates: To observe strict norms of social distancing, entry into the courtroom for the purpose of attending physical hearings shall be restricted to: One advocate per party whose Vakalatnama is on record or who has been duly authorized and whose case is listed for hearing on the Board of the concerned court; Senior counsel or ongoing counsel engaged by any such advocate; Registered clerk only for the limited purpose of delivering heavy and bulky case files of such advocates at the designated point; Party in person, where such party is pursuing the case without any legal assistance; Entry in the courtroom shall be permitted to those advocates or party in person whose matter is called out for hearing and also for the advocates whose matter is immediate next, subject to availability of space; The remaining advocates may wait outside the courtroom or Bar Room while maintaining social distancing norms; The display boards shall be functional for their information and convenience; Strict adherence to social distancing norms inside the courtroom shall be followed by all concerned., The following mandatory norms shall be followed by all persons permitted to enter the court premises or courtroom: Wearing of mask at all times, even during arguments in courts; Lawyers appearing in the court shall be required to appear in the usual court attire; Adherence to all directions, guidelines, Standard Operating Procedures and advisories issued by the Government of India and the State Government in respect of COVID-19 protocol., Entry and exit points: Every person entering the court premises shall mandatorily wear a face mask at all times and follow the recent Standard Operating Procedure issued by the Ministry of Health and the State Government; Staff of the court shall use sanitizer and mask as indicated in the health advisories already issued by the Ministry of Health and the State Government; Social distancing shall be the rule for all movements in the court premises including at the entry points., The following mandatory norms shall be followed at the time of filing by all persons: Wearing of mask at all times; Maintaining social distance at all times; Adherence to all directions, guidelines, Standard Operating Procedures and advisories issued by the Government of India and the State Government in respect of COVID-19 protocol., The matter shall be removed from the board.
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id_722
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Date of decision: 03 July 2023. Through: Petitioner in person versus Respondent through Mr. Chetan Sharma, Additional Solicitor General, with Mr. Apoorv Kurup, Chief Government Solicitor, Mr. Amit Gupta and Mr. Ojaswa Pathak, Advocates. The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner, who is an advocate. The petitioner seeks to challenge the method of empanelment of advocates to represent the Union of India, contending that the size of the panel to represent the Government of India is not fixed and the Government does not invite applications for appointment or renewal of the panel and that the appointment of advocates as Government Counsel is contrary to the law laid down by the Supreme Court of India in State of Punjab v. Brijeshwar Singh Chahal., At the outset, it is pertinent to mention that the petitioner himself was an empanelled Government Counsel and at the time of his empanelment there was neither any fixed panel of advocates to represent the Government of India nor was the petitioner subjected to any written examination before his appointment as Government Counsel., The short question which arises for consideration in the present petition is whether the Union of India has violated the judgment of the Supreme Court of India in Brijeshwar Singh Chahal. In that case, the judgment was passed while hearing a transfer petition and the question before the Supreme Court of India was whether the appointment of law officers by the State Governments can be questioned or the process by which such appointments are made can be assailed on the ground that they are arbitrary, hence violative of Article 14 of the Constitution of India. The transfer petition concerned the transfer of a writ petition challenged by a person who was initially appointed as Assistant Advocate General by order dated 23 April 2002. The appointment was on a contractual basis and was valid till 31 March 2003, but was continued till 31 March 2004 by an order dated 19 July 2003. Thereafter, the petitioner was appointed as Deputy Advocate General in the pay scale of Rs 18,400‑22,400 by order dated 11 January 2008 and his tenure was later extended up to the year 2011‑2012. It is also pertinent to mention that the law officers in the Punjab and Haryana High Court, from where the issue before the Supreme Court of India arose, are entitled to a monthly salary and one of the allegations made by the petitioner was that a number of law officers are without work and are only receiving the salary, which the petitioner described as idle salary. Therefore, the challenge before the Supreme Court of India was for a post. In the present case the challenge is for the mode of empanelment of lawyers and not appointment of lawyers to a post., Unlike the case before the Supreme Court of India, in the present case there is no fixed salary. In fact, even a retainer fee is not paid to the lawyers who are empanelled. The lawyers empanelled by the Government of India are paid their fee on a case‑to‑case basis. As stated earlier, the petitioner has himself been a beneficiary of the process which he is now challenging. The judgment of the Supreme Court of India will definitely apply to those states where monthly salary or a retainer fee is paid to the law officers and it will not apply to a case where lawyers are being empanelled and are paid on a case‑to‑case basis., It seems that the petitioner, who is an advocate, has filed the present petition after being a beneficiary of the very same process which has been assailed only because he has been denied extension or reappointment. A litigant can always choose a lawyer to represent him and the Government of India, which is one of the largest litigants in the country, has the freedom to appoint its own lawyers. The Supreme Court of India is of the view that the present petition is nothing but a public interest litigation filed for publicity., Lamenting the waste of time caused by frivolous public interest litigations and the fact that petitions are being camouflaged as public interest litigations to settle personal scores, the Supreme Court of India in Tehseen Poonawalla v. Union of India (2018) 6 SCC 72 held: “Yet over time, it has been realised that this jurisdiction is capable of being and has been brazenly misutilised by persons with a personal agenda. At one end of that spectrum are those cases where public interest petitions are motivated by a desire to seek publicity. At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the façade of a public interest litigation…”. The Court further observed that genuine and bona‑fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged., Similarly, in B. Singh (Dr.) v. Union of India (2004) 3 SCC 363, the Supreme Court of India held: “When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes or vendetta, the petition has to be thrown out.” The Court emphasized that public interest litigation should involve real and genuine public interest and not be a vehicle for personal gain, private motive, political motive or any oblique consideration., In State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC 402, the Supreme Court of India, after emphasizing the importance of public interest litigations, issued certain directions to be considered by a court before deciding a public interest litigation: (1) Courts must encourage genuine and bona‑fide public interest litigations and discourage those filed for extraneous considerations; (2) Each High Court should formulate rules for encouraging genuine public interest litigations and discouraging those filed with oblique motives, and the rules should be framed within three months, with a copy sent to the Secretary General of the Supreme Court of India; (3) Courts should prima facie verify the credentials of the petitioner before entertaining a public interest litigation; (4) Courts should be satisfied regarding the correctness of the contents of the petition; (5) Courts should be fully satisfied that substantial public interest is involved; (6) Petitions involving larger public interest, gravity and urgency must be given priority; (7) The petition must be aimed at redressal of genuine public harm or injury and must not be motivated by personal gain; (8) Petitions filed by busybodies for extraneous motives must be discouraged by imposing exemplary costs or similar measures., Public interest litigation was conceptualised as a weapon to secure justice for the voiceless. The Supreme Court of India has repeatedly warned that it must be used with great care and circumspection so that behind the veil of public interest no ugly private malice, vested interest or publicity‑seeking is lurking. The attractive brand name of public interest litigation should not be used for suspicious products of mischief and should be aimed at redressal of genuine public harm or injury., The Supreme Court of India is of the view that no public interest is involved in the present petition and it has been filed only to upset the status quo., In view of the above, the writ petition is dismissed, along with any pending applications, if any.
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id_723
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Petitioner: Kavita Gupta (corpus). Respondent: State of Uttar Pradesh and three others. Counsel for petitioner: Mithilesh Kumar Gupta. Counsel for respondent: G. A. Ashish Kumar Mishra. Honourable Rahul Chaturvedi, Judge. Shri Ashish Kumar Mishra, learned Advocate, has filed his Vakalatnama on behalf of Ashok Kumar Gupta, Manoj Kumar Gupta, Dhiraj Kumar Gupta and Vinod Kumar Gupta, who are brothers of the corpus, taken on record., Pursuant to the earlier order dated 31 March 2022, the girl Kavita Gupta (corpus) and her husband Mahesh Kumar Vishwakarma are present in the Honourable High Court of Uttar Pradesh. Shri Ashok Kumar Gupta, Shri Manoj Kumar Gupta, Shri Dhiraj Kumar Gupta and Shri Vinod Kumar Gupta, brothers of the corpus, are also present in the Court. All these persons are duly identified by their respective counsels., Heard Shri Mithilesh Kumar Gupta, learned counsel for the petitioner and Shri Ashish Kumar Mishra, learned counsel for the respondent and learned Additional Government Advocate. Perused the record., The Court had an opportunity to converse with the corpus, who said that her name is Kavita Gupta and her age is about 24 years; she is pursuing her M.A. from Banaras Hindu University; during her studies she developed a certain amount of tender relationship with Mahesh Kumar Vishwakarma and both of them decided to marry; on 30 April 2021 they got married in a temple and thereafter got their marriage registered on 21 September 2021 (Annexure-1). She further states that her brothers, named above, are very cruel to her because she got married against their wish and desire., On making inquiry from the brothers of the corpus, who are present in the Court, about the alleged cruelty, they denied any allegation of cruelty towards their sister., The corpus Kavita Gupta also woefully states that on 26 April 2021 she was brutally assaulted by Mr. Abhishek Kumar, In‑charge, Police Chowki‑Khajuri, Police Station‑Mirza Murad, District Varanasi, and two lady constables accompanying him. This is an unacceptable situation where the police personnel who are said to be protectors have become attackers., Under the circumstances the Senior Superintendent of Police, Varanasi is hereby directed to inquire into the matter and if the allegation of assault by the aforesaid police personnel upon the corpus is found to be true, punitive action against them shall be taken within ten days from today., So far as the brothers of the corpus are concerned, they are required to sever all relationship with their sister and not to harass or ill‑treat her just because she married a boy of her own choice., Since the girl is facing threats from her brothers regarding the safety and security of herself, her husband and her in‑laws, the Senior Superintendent of Police, Varanasi and the Station House Officer, Police Station Raja Talab, Varanasi are required to provide adequate security and keep a close vigil over the safety and security of Kavita Gupta, her husband Mahesh Kumar Vishwakarma and other members of her in‑laws, so that nothing untoward may happen in future against them., Under the peculiar facts and circumstances, accepting that Kavita Gupta is a major girl and she has decided to go with her husband, she has all right to do so. Kavita Gupta is at liberty to go with her husband Mahesh Kumar Vishwakarma.
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id_724
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Wednesday, the 24th day of May 2023 (3rd Jyaishta, 1945). The writ petition (civil) prays that, in the circumstances stated in the affidavit filed along with the writ petition, the Kerala High Court be pleased to issue an interim direction to the fourth respondent to give permission for conducting vacation classes in the Central Board of Secondary Education (CBSE) school on the basis of their respective applications pending disposal of the writ petition., The petition again comes up for orders upon perusing the petition and the affidavit filed in support of the writ petition and this court's order dated 09/05/2023 and upon hearing the arguments of Messrs K. P. Satheesan (Senior Advocate), R. Bhaskara Krishnan, Advocates for the petitioners; Sri Nirmal S., Advocate for respondents 4 and 5; and the Government Pleader for respondents 1 and 3, the Kerala High Court passed the following., Writ Petition (Civil) Nos. 15455, 15707, 15723, 15746 and 16068 of 2023 dated this 24th day of May 2023. These writ petitions are filed mainly challenging order No. H(4)/7002/2023/DGE dated 03.05.2023 passed by the Director of General Education, Thiruvananthapuram. As per the above proceedings, the Director of General Education directed that all primary, secondary and higher secondary schools in government, aided and unaided sectors shall not conduct vacation classes., In Writ Petition (Civil) No. 15455/2023, this Court stayed the implementation of the above order for two weeks, mainly relying on the judgment of this Court in I.S.S. (English Medium) Senior Secondary School, Perinthalmanna v. State of Kerala [2018 (2) KHC 829]. In that case, this Court observed that if there is no objection from the parents, teachers and students, special classes can be conducted during the summer vacation on condition that the school authorities provide basic facilities., Similar orders were passed in some other writ petitions. Today, these writ petitions came up for the extension of the interim order. Writ Petition (Civil) No. 16068/2023 is a fresh writ petition for admission., Rule 1 Chapter VII of the Kerala Education Rules (KER) says that all schools shall be closed for summer vacation every year on the last working day of March and reopened on the first working day of June unless otherwise notified by the Director. The Director of General Education now issued the impugned orders in these writ petitions, stating that, because of the prevailing atmospheric temperature, no classes shall be conducted in any of the schools during the summer vacation. There is no challenge to Rule 1 of Chapter VII KER in these writ petitions. Therefore, the order passed by the Director of General Education is strictly in tune with Rule 1 of Chapter VII KER., Some of the petitioners in these cases are the managers of schools under the Central Board of Secondary Education (CBSE). Their contention is that the Director of General Education has no power to issue such an order against CBSE schools. This Court, in a batch of writ petitions, considered similar contentions in 2019, when the Director of General Education passed an order based on the directions of the Child Rights Commission., Having heard the learned counsel on either side, it is seen that the Government has every right to issue directions in accordance with the alerts received from the Disaster Management Authority in order to protect citizens, with special care to children up to eighteen years of age, from extreme heat. At the same time the Government has a duty to see that children are not adversely affected by the recurrent declaration of holidays or loss of working days on innumerable reasons including natural calamities. The schools are duty bound to impart education effectively and to equip students to appear in public examinations, which are decisive of their future; otherwise it would result in deprivation of the fundamental right to education. To compensate the loss of working days, it would be necessary to find additional class hours to complete the syllabus; otherwise it would be a violation of child rights., The Government circular itself provides that camps, workshops, etc., can be conducted during vacation, with prior permission of educational authorities who shall ensure that sufficient safeguards are provided to meet the adverse climatic conditions on account of extreme heat. Therefore, if the school authorities as well as the Parent‑Teacher Association (PTA) have made a request after ensuring all safeguards for meeting the unprecedented weather conditions, not only for students of classes X to XII but also for teachers and all those involved in conducting vacation classes, it is liable to be considered by the competent authorities under the CBSE., In some cases the petitioners have produced resolutions passed by the PTA of the schools to request permission from the authorities to conduct summer classes. In other cases the school authorities such as managers or principals have addressed the authorities under the CBSE to grant permission to conduct classes, ensuring that they will provide all facilities to protect children from adverse weather conditions., Having regard to all these circumstances, I am of the view that, as the Government circular itself provides for conducting summer camps for a period of ten days, even without interfering with the Government circular as a whole, there can be a direction to the competent authorities under the CBSE to consider the request of the petitioners to conduct classes during summer vacation and to take a decision after verifying the facilities provided in each school on a case‑by‑case basis., Therefore these writ petitions are disposed of with the following directions: (1) The principals of the petitioner schools shall approach the Regional Director of CBSE with an application for permission to conduct vacation classes within one week. (2) The application shall furnish details regarding the safeguards adopted to meet extreme climatic conditions, such as facilities for pure drinking water, first aid, food, availability of water in the toilets for students and teachers, classroom and premises protection from extreme heat, the proposed dates and schedule of class hours, and transportation made available to the students. (3) The application of the principal shall be submitted along with the resolution of the PTA in respect of conducting vacation classes despite adverse weather conditions and the authorised representative’s declaration of the facilities being provided for students and teachers. (4) The Regional Director shall consider such applications with reference to the facilities provided, having regard to the requirement of the classes to be conducted versus the number of teaching days lost in the previous academic year, and shall take an appropriate decision for each school within ten days from the date of receipt of the application. The permission, if granted, shall be for a maximum period of twenty days. The Regional Director may impose conditions to ensure safeguards in tune with the alerts of the State Disaster Management Authority, in order to protect children and all involved in conducting the classes. (5) On the basis of such permission being granted, the petitioner schools shall be free to conduct classes during summer vacation. (6) The Government circular issued on 28.03.2019 shall not stand in the way of granting the aforesaid permission and conducting classes in tune with such permission., The above judgment was taken up in appeal, and the Division Bench of the Kerala High Court disposed of the writ appeal with the following observations: We agree with the submission of the learned Standing Counsel for the CBSE and, though the writ appeals are rendered infructuous by the orders passed, we make it clear that the Regional Director of CBSE cannot have any say in the matter nor can he verify such situations existing in a State, which prompts the State Government to pass such orders. We leave open the question of sustainability of the Government orders, but make it clear that directions cannot be issued to the Regional Director of CBSE to consider aspects covered by the orders of the State Government, which all schools within the State are to comply with, irrespective of the affiliating body., The petitioners are relying on the judgment of this Court in I.S.S. (English Medium) Senior Secondary School's case (supra). This Court disposed of that case with the following directions: I notice that the petitioners have taken a legal contention that the recommendation of the Child Rights Commission and the circular issued by the Director of Public Instruction, even if found to be legally tenable, could not apply to students studying in classes above eighth standard, since, as per the provisions of the Protection of Child Rights Act, the Commission's jurisdiction applies only to children up to fourteen years of age., I also see that similar matters were filed before this Court in the previous academic year and several orders were issued permitting conduct of summer classes subject to the approval of the CBSE, the Indian Certificate of Secondary Education (ICSE) and the competent educational authorities. Since conduct of summer classes is at the request and advice of the parents and students of the various schools and the classes are being conducted only for classes eleven upwards, I cannot see any reason why either the Child Rights Commission or the Director of Public Instruction should interdict such classes. The classes are conducted for the benefit of the students to provide necessary impetus for excellence in the future and to complete the syllabus effectively., Since there is no case that students are compelled to sit in vacation classes against their desire, and there is no statement in the circular of the Director of Public Instruction or the recommendation of the Child Rights Commission indicating an intent not to sit in such additional classes, I deem it appropriate to allow the schools involved in these cases to conduct additional classes during the summer recess 2018, subject to strict vigilance by the competent educational authorities and the CBSE/ICSE, as the case may be. I order accordingly., I make it clear that if any complaint is raised by any student or parent against conduct of such classes, it shall be taken due notice by the competent authorities and appropriate instructions issued to the respective schools. The writ petitions are thus ordered., With great respect, I am not in a position to agree with the findings in I.S.S. (English Medium) Senior Secondary School's case (supra). Rule 1 Chapter VII KER clearly says that all schools shall be closed for summer vacation every year on the last working day of March and reopened on the first working day of June unless otherwise notified by the Director. The Director of General Education only reiterated the rule in KER. The authority of the Director of General Education to pass such an order is upheld by this Court in the judgment dated 05.04.2019 in Writ Petition (Civil) No. 10123/2019, and also in the judgment dated 04.07.2019 in WA No. 1255/2019. I am of the considered opinion that the dictum laid down in I.S.S. (English Medium) Senior Secondary School's case (supra) would go against the rule, especially because the rule is not declared invalid. Therefore the observations in the above case require reconsideration., Moreover, there is a purpose in giving vacations to the student community. After a hectic academic year, students need a break. Summer vacation allows students to enjoy leisure, pursue extracurricular activities, spend time with family, and obtain a mental break, which is essential before the decisive academic year of class ten and higher secondary., I am of the considered opinion that the order passed by the Director of General Education is the need of the hour. This Court need not invoke the powers under Article 226 of the Constitution of India to interdict an order passed by the Director of General Education, which is in tune with Rule 1 of Chapter VII KER. Therefore, I am not in a position to agree with the dictum laid down in I.S.S. (English Medium) Senior Secondary School's case (supra). The cases are to be heard by a Division Bench. Consequently, these writ petitions are adjourned for being heard by a bench of two judges., The counsel for the petitioners submitted that there is only one week more to complete the summer vacation and the interim order may be extended for one week. I am not inclined to extend the interim order. The petitioners can raise their contention before the Division Bench. To facilitate the petitioners to raise their claim immediately, the Registry will place this matter before the Hon'ble Acting Chief Justice forthwith for passing appropriate orders.
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Arising out of the final order dated 5 May 2021 in Original Application No. 880/2020 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench. Dated this the 15th day of March 2022. The final verdict rendered by the Division Bench of the Kerala Administrative Tribunal, Thiruvananthapuram Bench on 5 May 2021 in the instant original application, Original Application No. 880/2020 is under challenge before us in the instant Original Petition filed under Articles 226 and 227 of the Constitution of India., The sole petitioner in the Original Petition is the sole applicant in the Original Application and the respondents in the Original Petition are the respondents in the Original Application., Heard Sri N. Asok Kumar, learned counsel appearing for the petitioner in the Original Petition and sole applicant in the Original Application; Sri Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents one and two in the Original Petition (respondents one and two in the Original Application); Sri P. C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for respondent three in the Original Petition (respondent three in the Original Application); and Sri Nirmal V. Nair, learned Advocate appearing for contesting respondents four to seven in the Original Petition (respondents four to seven in the Original Application)., The main issue posed before us in this Original Petition is whether a serving Government employee, who had earlier secured enrollment as an Advocate under the provisions of the Advocates Act, and who later suspended his legal practice for taking up Government employment, can be treated as a member of the Bar for the purpose of selection and appointment as Assistant Public Prosecutor Grade II. Our answer to the aforesaid issue is in the negative and thus against the petitioner in the Original Petition. The reasonings for arriving at the aforesaid conclusion will be dealt with hereunder. The original petitioner herein, also referred to as the applicant, will be called the applicant for convenience. The respondent Kerala Public Service Commission will be referred to as PSC for convenience., A brief reference to the factual aspects in this case is pertinent. According to the applicant, she secured a degree in law from the University of Calicut and thereafter enrolled as an Advocate before the Bar Council of Kerala on 30 December 2007 under the provisions of the Advocates Act, 1961 and the rules framed thereunder. She commenced practice as an Advocate in the courts at Alappuzha, including the criminal courts. Later she obtained appointment as Lower Division Typist in the Excise Department of the Government of Kerala and, pursuant to the appointment order, joined Government service as Lower Division Typist on 16 October 2012. She admits that before that she had submitted the requisite application to the Bar Council of Kerala and had her legal practice suspended under the provisions of the Advocates Act and the Bar Council of India Rules, with the voluntary suspension from legal practice effected on 10 October 2012. The last date for submission of the application as per Annexure A‑1 notification dated 30 August 2017 was up to 4 October 2017., The third respondent, PSC, issued Annexure A‑1 selection notification dated 30 August 2017, inviting applications from eligible and qualified candidates for appointment as Assistant Public Prosecutor Grade II in the State of Kerala. The qualifications prescribed to hold the post of Assistant Public Prosecutor Grade II as per the rules and as per clause seven of Annexure A‑1 selection notification are as follows: (i) Must be a graduate in law; (ii) Must be a member of the Bar and must have not less than three years of active practice in criminal courts. A certificate of enrollment issued by the Bar Council and a three‑year experience certificate of active practice in criminal courts as on 1 January 2017, issued by a Judicial Officer not below the rank of a First Class Judicial Magistrate, should be produced (see page 29 of the paper book of the Original Petition)., According to the applicant, she had earlier secured the certificate of enrollment issued by the Bar Council of Kerala and had active practice in the criminal courts since 30 December 2007, and she had also secured the necessary certificates confirming her active practice in criminal courts. There is no dispute that she is a graduate in law., The applicant contends that since she had already secured enrollment with the Bar Council of Kerala as an Advocate, the mere fact that she later suspended her legal practice for the purpose of taking up Government employment does not preclude her from being treated as a member of the Bar. She argues that suspension of legal practice for taking up permanent employment only suspends the right to practise, while the enrollment in the Bar continues, and therefore she should be treated as a member of the Bar. Accordingly, she asserts that she possesses all the qualifications and eligibility conditions for being considered as Assistant Public Prosecutor Grade II under clause seven of Annexure A‑1 selection notification as on 4 October 2017, the last date of submission of applications. There is no serious dispute that she is a graduate in law and that she secured the certificate of enrollment on 30 December 2007. The only dispute raised by the respondents is that, after having suspended her legal practice for the purpose of taking up Government employment, the applicant, as a serving Government employee, cannot be treated as a member of the Bar after her voluntary suspension of legal practice on 10 October 2012 and, at any rate, she cannot be treated as a member of the Bar as on 4 October 2017. Thus the sole issue to be determined is the one mentioned hereinabove., For a proper determination of the aforesaid issue, it is pertinent to note some of the relevant provisions of the Advocates Act, 1961 and the Bar Council of India Rules framed thereunder. Section 2(1)(a) of the Advocates Act defines ‘advocate’ as a person entered in any roll under the provisions of the Act. Section 2(k) defines ‘roll’ as the roll of Advocates prepared and maintained under the Act. Section 2(n) defines ‘State roll’ as a roll of Advocates prepared and maintained by the State Bar Council under Section 17. Section 17 mandates that the State Bar Council maintain a roll of Advocates. Section 22 deals with the certificate of enrollment, which provides that a certificate of enrollment in the prescribed form shall be issued by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it. Section 30 of the Act deals with the right of advocates to practise and provides that, subject to the provisions of the Act, every advocate whose name is entered in the State roll shall be entitled, as of right, to practise throughout the territories to which the Act applies—in all courts including the Supreme Court of India; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is entitled to practise under any law in force. Section 33 envisages that only advocates are entitled to practise and, except as otherwise provided in the Act or any other law, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority unless he is enrolled as an advocate under the Act. Section 35(3)(c) stipulates that the disciplinary committee of a State Bar Council, after giving the advocate concerned and the Advocate‑General an opportunity of being heard, may order suspension of the advocate from practice for such period as it may deem fit. Sub‑section (4) of Section 35 mandates that where an advocate is suspended from practice under clause (c) of sub‑section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority in India., Section 41 of the Act deals with alteration in the roll of advocates. It provides that where an order is made under this Chapter reprimanding or suspending an advocate, a record of the punishment shall be entered against his name in the State roll; and where any order is made removing an advocate from practice, his name shall be struck off the State roll. Where any advocate is suspended or removed from practice, the certificate granted to him under Section 22 in respect of his enrollment shall be recalled. The provisions of Section 35 and Section 41(1) deal with the scenario of suspending an advocate from the rolls as part of penal or punishment proceedings. Sub‑section (3) of Section 41 specifically mandates that where any advocate is suspended or removed from practice, the certificate granted to him under Section 22 shall be recalled., It is now pertinent to refer to some of the provisions contained in the Bar Council of India Rules. Rule 49 under Section VII of Chapter II of Part VI and Rule 5 under Chapter III of Part VI must be examined. Section VII of the BCI Rules deals with other employments. Rule 49 provides that an advocate shall not be a full‑time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereafter cease to practise as an advocate so long as he continues in such employment. Rule 43 under Section IVA of Part VI, Chapter II, stipulates that where an advocate has taken full‑time or part‑time service or engages in business or any avocation inconsistent with his practising as an advocate, he shall send a declaration to the respective State Bar Council within ninety days from the date of such disqualification; failure to do so may lead the committee constituted by the State Bar Council under Rule 42 to pass orders suspending the right of the advocate to practise. The cumulative effect of Rule 43 and Rule 49 is that an advocate shall not be a full‑time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up such employment, intimate the Bar Council and cease to practise as an advocate while employed. Rule 43 also deals with the situation where the advocate does not make the requisite declaration; the competent committee of the State Bar Council may pass orders suspending the right of the advocate to practice. The advocate must then send a declaration to the State Bar Council within ninety days of the disqualification., Reference to Rule 5 under Chapter III of Part VI of the BCI Rules is also apposite. Rule 5(1) mandates that an advocate who voluntarily suspends his practice for any reason shall intimate, by registered post to the State Bar Council on whose roll his name is entered, such suspension together with his original certificate of enrollment. Consequently, upon voluntarily suspending practice, the person concerned must surrender the original certificate of enrollment to the State Bar Council. Rule 5(2) envisages that wherever an advocate who has suspended his practice desires to resume his legal practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an affidavit stating whether he has incurred any disqualifications under Section 24‑A, Chapter III of the Act during the period of suspension. Rule 5(3) provides that the Enrollment Committee of the State Bar Council may order the resumption of practice and return the certificate with necessary endorsement. If the Enrollment Committee is of the view that the advocate has incurred any disqualifications, the matter shall be referred to Section 26(1) of the Act. Thus, where a person who has voluntarily suspended his practice for taking up permanent employment subsequently wishes to resume legal practice after giving up the employment, he must make an application before the Enrollment Committee with the requisite affidavit, and if satisfied, the committee may order resumption of practice and return the surrendered original certificate of enrollment., It appears that, although the Bar Council of India Rules make provisions for voluntary suspension of legal practice, there are no explicit provisions regarding the said scenario in the Advocates Act, 1961. Rule 49 mandates that upon voluntarily suspending practice, the person shall cease to practise as an advocate as long as he continues in such employment, and Rule 5(1) mandates surrender of the original certificate of enrollment. In this regard, Section 41(3) of the Act stipulates that where any advocate is suspended or removed from practice, the certificate granted to him under Section 22 shall be recalled. In light of these provisions, it can be seen that an advocate who has voluntarily suspended legal practice will cease to have the legal right to practise. In other words, such a person will not have the right to practise as an advocate under Sections 30 and 33 of the Advocates Act, 1961, so long as the voluntary suspension is in force. Consequently, the issue to be adjudged is whether such a person can be treated as a member of the Bar after having secured voluntary suspension of practice., Rule 6 under Chapter III of Part VI of the BCI Rules provides that an advocate whose name has been removed by order of the Supreme Court of India or a High Court or the Bar Council shall not be entitled to practice the profession of law before the courts and authorities mentioned under Section 30 of the Act, or in chambers or otherwise. Further, an advocate who is under suspension shall be under the same disability during the period of such suspension as an advocate whose name has been removed from the roll. Rule 6(2) does not distinguish between voluntary suspension and penal suspension; the effect of suspension is the same., The expression ‘member of the Bar’ is not explicitly defined in the Advocates Act or the rules framed thereunder. Paragraph 9 of Ext. P‑5 reply statement filed by the additional respondents four to seven in the Original Application states that Black’s Law Dictionary, 6th Edition defines the term ‘Bar’ as the court in its strict sense, or, in another sense, the whole body of attorneys or members of the legal profession collectively, who are figuratively called the Bar. Wharton’s Law Lexicon published by Universal Law Publishing Company Private Limited also defines Bar as a court, tribunal, a place of audience or the profession of barrister, which is said to be called to the bar. The Lexicon further provides separate definitions for Bar Council, Bar Council of India, etc. Thus, the term ‘Bar’ denotes the court and its proceedings or, collectively, the attorneys or members of the legal profession. Consequently, for a person to be called a member of the Bar, such person should be a member of the legal profession who earns a livelihood through the profession carried on in courts, tribunals, etc. Mere membership in the Bar Council rolls or enrollment as an advocate no longer extends the status of being a member of the Bar, as discernible from the provisions of the Advocates Act, 1961, Bar Council of India Rules and the Certificate of Place and Practice (Verification) Rules, 2015., After hearing all the parties concerned, we are of the view that reference to the meaning of the term ‘Bar’ as appearing in Black’s Law Dictionary and law lexicons is pertinent to understand the substance and essence of the expression ‘member of the Bar’ as envisaged in clause seven of Annexure A‑1 selection notification and relevant provisions of Annexure R‑4(b) special rules. In light of the above, we hold that to describe a person as a member of the Bar, he or she should be a member of the legal profession who earns a livelihood through legal practice in courts, tribunals, etc. We have already noted that voluntary suspension of legal practice results in the advocate ceasing to have the legal right to practise and surrendering the original certificate of enrollment to the Bar Council. So long as a person like the applicant does not have the legal right to practise as an advocate under Sections 30 and 33 of the Act, it cannot be said that such a person is a member of the Bar as envisaged in clause seven of Annexure A‑1 selection notification and the provisions contained in Annexure R‑4(b) special rules., We also refer to the decision of the Supreme Court of India in Deepak Aggarwal v. Keshav Kaushik & Ors. [(2013) 5 SCC 277], wherein it was observed that Rule 49 of the Bar Council of India Rules provides that an advocate shall not be a full‑time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to be in legal practice, and that the term ‘employment’ referred to in Rule 49 does not cover the employment of an advocate who is solely or predominantly employed to act and/or plead on behalf of his client in courts of law. If a person is engaged to act and/or plead in a court of law as an advocate, even on salary, such employment is not covered by Rule 49 as he continues to practise law; however, if he is employed not mainly to act and/or plead in a court of law but to do other legal work, the prohibition in Rule 49 applies and he becomes a mere employee and ceases to be an advocate. The present case does not involve the exceptional scenario considered by the Supreme Court in Deepak Aggarwal’s case. Paragraph 98 of that decision states that although the second and third paragraphs of Rule 49 have been deleted, the effect remains that an advocate shall not be a full‑time salaried employee of any person, Government, firm, corporation or concern so long as he continues to practise. The deletion has not materially altered the position concerning advocates employed by the State or Central Government to conduct civil and criminal cases on their behalf in courts., In the present case, the applicant is a full‑time Government servant employed as a Lower Division Typist in the Excise Department of the State Government and she has no case of being employed in public employment solely or predominantly to act and/or plead on behalf of a party in courts of law. Since she has taken up full‑time Government employment as a Lower Division Typist, consequent to the voluntary suspension of legal practice, she ceases to have the legal right to practise as an advocate and consequently ceases to be an advocate so long as the voluntary suspension is in force., There is another aspect to be dealt with. Sri P. S. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, points out that when special rules require that the candidate should be a member of the Bar and must have had active practice of not less than three years on the first day of the year in which applications are invited, it is clear that the applicant must have had active practice not only as on the last date of submission of the application but also thereafter up to the date of advice and regular appointment. In this regard, paragraph five of the decision of a Division Bench of this Court in Mahin v. State of Kerala [2013 (3) KLT 639] is pertinent, which states that an applicant must possess the prescribed qualification as on the last date fixed for receipt of applications by the PSC, and that such qualification must continue to run with the person throughout the selection process, appointment, joining the service, and even while holding the post., We also note that the Tribunal referred to the judgment of the Patna High Court in Amar Sinha v. Bar Council [2017 KHC 2225], wherein, while upholding the legality of the Certificate and Place of Practice (Verification) Rules, 2015, the Court held that ‘practice’ means repeated action, habitual performance and a succession of acts of similar kind. It observed that a person licensed to practise law under the Advocates Act who abandons his profession or has no bona fide intention to continue in the profession should not be treated as a member of the profession merely on the strength of his enrollment. The Court further held that the Certificate and Place of Practice (Verification) Rules, 2015 were introduced to identify and weed out such non‑practising advocates. In view of these aspects, we are constrained to hold that reliance placed by the petitioner on the contrary view laid down in Annexure A‑9 judgment dated 13 December 2018 by a learned Single Judge of the Madurai Bench of the Madras High Court in W.P. (MD) No. 237 of 2014 is not tenable as it does not reflect the correct legal position., The upshot of the above discussion is that, in view of the statutory consequences flowing from the provisions of the Advocates Act and the Bar Council of India Rules, a person like the applicant, who initially secured enrollment as an advocate in the State Bar Council and later took up full‑time Government employment and voluntarily suspended legal practice, cannot be said to have the legal right to practise as an advocate and, therefore, cannot be considered a member of the Bar as understood in Annexure A‑1 selection notification and Annexure R‑4(b) special rules. Such eligibility condition of being a member of the Bar must be possessed by the candidate not only as on the last date of submission of the application to the Public Service Commission but also thereafter, even as on the date of advice by the PSC and the date of appointment order issued by the appointing authority. In view of the above, we hold that no grounds are made out to interfere with the well‑considered verdict of the Tribunal in the instant case.
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The petition fails and accordingly, the Original Petition will stand dismissed.
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Supplementary affidavit filed in the Allahabad High Court today is taken on record., This application under Section 482 of the Criminal Procedure Code has been filed for quashing the entire proceedings including the summoning order of Case No. 16331 of 2023 (State Versus Akhilesh Yadav and others), arising out of Case Crime No. 78 of 2022, under Sections 188, 269, 270 of the Indian Penal Code and Section 3/4 of the Epidemic Diseases Act, P. S. Dadri, district Gautam Budh Nagar, pending before Civil Judge 3., Heard: Mr Imran Ullah, along with Mr Vineet Vikram, learned counsel for the applicant; Sri P. C. Srivastava, learned Additional Advocate General, State of Uttar Pradesh, along with Mr J. K. Upadhyay, learned Additional Government Advocate – I for the State., The first information report was lodged against fourteen named accused persons, including the applicant, and 300‑400 unknown persons, alleging that on 3 February 2022 at 10.30 p.m., the applicant (President, Samajwadi Party) along with co‑accused Jayant Chaudhary, while travelling from Luharli Gate, Gautam Budh Nagar in a Samajwadi Rath (vehicle) towards Noida, were welcomed by co‑accused persons and during that process a large gathering assembled and the guidelines of Covid‑19 were violated, which endangered the spread of the pandemic. At that time the proclamation under Section 144 of the Criminal Procedure Code, as well as the Model Code of Conduct, was also in force and from 10.00 p.m. to 8.00 a.m. there was prohibition on convening; consequently the proclamation under Section 144, Covid‑19 guidelines and Model Code of Conduct 2022 were violated., Learned counsel for the applicant submitted that the applicant is an ex‑Chief Minister of the State of Uttar Pradesh and he is wholly innocent and no prima facie case is made out against him. Even as per the prosecution version, on 3 February 2022 the applicant visited the area of district Gautam Budh Nagar in relation to an election campaign after prior information to the district administration and it was the duty and responsibility of the district administration and police to manage the public gathering. Counsel submitted that in the vehicle (rath) in which the applicant was travelling there were only five seats and that the applicant was not suffering from Covid‑19 or any other infectious disease and thus it cannot be said that he violated any Covid‑19 guideline or committed any negligent act to spread infection; consequently no prima facie case under Sections 269 and 270 of the Indian Penal Code is made out. Further, the applicant is not responsible for the alleged assembly of the crowd. Referring to these facts, it was submitted that no offence under Sections 269, 270 of the Indian Penal Code, nor under Section 3/4 of the Epidemic Diseases Act, is made out., In this connection, learned counsel placed reliance upon the judgment in the case of Pawan Giri and others Versus State of Haryana (CRM‑M‑51595‑2021 (Original and Miscellaneous)) decided on 7 February 2022; Sidak Singh Sandhu Versus Union Territory Chandigarh and another (CRM‑M‑19407‑2022 (Original and Miscellaneous)) decided on 27 July 2022 by the Punjab and Haryana High Court; and HLA SHWE and others Versus State of Maharashtra (Criminal Application No. 453 of 2020) decided on 21 September 2020. It was also submitted that on nearly similar facts, proceedings were quashed by the Lucknow Bench of this Court in the case of Harvinder Singh alias Romi Sahni Versus State of Uttar Pradesh (Application Under Section 482 of the Criminal Procedure Code No. 9190 of 2022) decided on 13 December 2022 and in the case of Ashutosh Verma Versus State of Uttar Pradesh (Application Under Section 482 of the Criminal Procedure Code No. 3194 of 2022) decided on 6., It is further submitted that for cognizance of an offence under Section 188 of the Indian Penal Code, a complaint is required to be filed in accordance with the provisions of Section 195 of the Criminal Procedure Code, but in the instant matter no such complaint has been filed; thus, no cognizance under Section 188 of the Indian Penal Code could have been taken. In this connection, learned counsel placed reliance upon the judgment of this Court in the case of Abbas Ansari and two others Versus State of Uttar Pradesh and another (Neutral Citation No. 2023:AHC:176771) and the case of Muhamed Baruk and others Versus State represented by the Sub‑Inspector of Police, V. Kalathur Police Station (Criminal Original Petition No. 9695 of 2022) decided on 12 September 2023 by the Madras High Court., It was also pointed out that the investigation has been conducted in a most casual and mechanical manner. Similar statements have been attributed to all the witnesses and cognizance has also been taken by the lower court in a mechanical manner without considering the facts of the matter. Referring to the facts, no prima facie case is made out at all against the applicant., Sri P. C. Srivastava, learned Additional Advocate General, State of Uttar Pradesh, submitted that the first information report itself makes out a case against the applicant and co‑accused persons. The applicant is an ex‑Chief Minister of the State of Uttar Pradesh and the facts show that during the Covid‑19 pandemic while visiting the area of district Gautam Budh Nagar for convening, hundreds of persons assembled and the Covid‑19 guidelines and Model Code of Conduct issued by the Election Commission were violated. The Additional Advocate General referred to the version of the first information report and statements of witnesses and submitted that a prima facie case is made out against the applicant. Regarding the offence under Section 188 of the Indian Penal Code, it was submitted that when the first information report was also lodged under other sections, i.e., Sections 269, 270 of the Indian Penal Code and Section 3/4 of the Epidemic Diseases Act, there is no requirement of filing any complaint as provided under Section 195 of the Criminal Procedure Code. It was submitted that the applicant may raise his defence during trial but at this stage, considering the material on record, it cannot be said that no prima facie case is made out., Considering the facts of the matter, the submissions of learned counsel for the parties and case laws cited on behalf of the applicant, the matter requires consideration and hearing on merits., Let a counter‑affidavit be filed by the opposite parties within a period of four weeks and a rejoinder affidavit, if any, may be filed within a period of two weeks thereafter., Put up on 22 January 2024 as fresh., Considering the facts of the matter, it is directed that till the next date of listing, the proceedings in respect of the applicant/accused in Case No. 16331 of 2023 (State Versus Akhilesh Yadav and others), arising out of Case Crime No. 78 of 2022, under Sections 188, 269, 270 of the Indian Penal Code and Section 3/4 of the Epidemic Diseases Act, P. S. Dadri, district Gautam Budh Nagar, pending before Civil Judge (Senior Division) / FTC / MP / MLA, Gautam Budh Nagar, shall remain stayed.
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Writ Miscellaneous Petition No. 31112 of 2023 and Writ Petition No. 7284 of 2021. This petition has been filed by the impleaded 27th respondent for a direction to respondents 10 to 28 to issue suitable orders to recognize the “Deed of Familial Association”, recognizing the civil union entered into between LGBTQIA+ partners in order to protect the fundamental rights of persons forming part of this community., Supreme Court of India heard Ms. B. S. Ajeetha, learned counsel appearing on behalf of the petitioner, and also took the assistance of Mr. S. Manuraj, learned counsel appearing on behalf of the writ petitioners, and Ms. Jayna Kothari, learned Senior Counsel, who was present at the time of hearing., Supreme Court of India must keep in mind the judgment of the Honourable Supreme Court of India in Supriyo @ Supriya Chakraborty and Another vs. Union of India reported in 2023 SCC Online SC 1348. The majority judgment held that there is no unqualified fundamental right to marry under the Indian Constitution; there is no right to civil union available to unmarried couples; marriage is a status that can be created only by the Legislature and not by the Courts; the Special Marriage Act is not violative of any fundamental rights; the Special Marriage Act cannot be read in a gender‑neutral manner so as to allow queer couples to marry under its provisions; the right to adoption has been denied to unmarried couples; and transgender and intersex persons may marry under the Special Marriage Act provided such a marriage is heterosexual., Supreme Court of India must necessarily keep in mind the ratio in the above judgment while dealing with this petition, since no orders can be passed beyond the rights recognized by the Honourable Supreme Court of India in that judgment., The petitioner, in this direction petition, has stressed the need for familial recognition among LGBTQIA+ persons, their partners and others who choose to form or retain families with such persons. For this purpose, the petitioner proposes a “Deed of Familial Association”. The purpose of this deed is to ensure that two persons have the right to live in a relationship and to obtain protection. According to the petitioner, harassment of persons belonging to the community is a daily affair, which must be countered through the available legal framework. Therefore, if the parties enter into a contract in the name of a “Deed of Familial Association”, whenever they are questioned, shamed, harassed or their safety is in danger, this deed can be shown to demonstrate that the two persons have come together of their own choice and have a right to be in such a relationship, which cannot be disturbed by anyone., The right of two persons to choose to live in a relationship, to obtain protection and not to be harassed has been clearly recognized by the majority judgment of the Honourable Supreme Court of India in Supriyo’s case. In short, the Deed of Familial Association is proposed by the petitioner only to safeguard the rights guaranteed under Article 21 of the Constitution of India., The learned counsel assisting the Court also made it clear that the Deed of Familial Association cannot go beyond its purpose and seek any further status in light of the majority judgment of the Honourable Supreme Court of India in Supriyo’s case. It is also brought to the notice of Supreme Court of India that such a contract entered into between two individuals is not barred under Indian Contract Law, and therefore the proposal can be considered by the Government for approval. According to the petitioner, the Deed of Familial Association will confine itself only to harassment or violence or ill‑treatment by society or biological families, and discrimination that can impact gainful employment, housing and assimilation in society., In the considered view of Supreme Court of India, the proposal brought forth by the petitioner prima facie sounds convincing, especially since the Honourable Supreme Court of India in Supriyo’s case has categorically recognized the right of choice of two persons to have a relationship. Accordingly, such persons must have protection to live in society without being disturbed or harassed. For that purpose, the Deed of Familial Association will at least give some respect and status to such a relationship., The Social Welfare and Women Empowerment Department is already in the process of finalising the policy for the LGBTQIA+ community. While undertaking this exercise, the suggestion proposed by the petitioner can be taken into consideration, and the State can formulate a procedure for registration of such Deed of Familial Association and define its scope. If this is done, the State will be able to give its approval to persons in a relationship within the community, thereby enhancing their status in society. This suggestion shall be kept in mind while finalising the policy for the LGBTQIA+ community., This Writ Miscellaneous Petition is disposed of in the above terms. The learned counsel appearing on behalf of the petitioner may continue to assist Supreme Court of India in this regard. Dated 17 November 2023.
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Present: Mr. Saurabh Arora, Advocate for the petitioner (in COCP-1121-2017). Mr. Kunal Mulwani, Advocate for the petitioner (in COCP-1121-2017). Mr. Jaivir S. Chandel, Additional Standing Counsel and Ms. Irvanneet Kaur, Advocate for respondents No.1 to 3. Mr. Gaurav Mohunta, Advocate for respondent/Municipal Corporation, Chandigarh. Mr. H.P.S. Ghuman, Advocate for respondent/Municipal Corporation, Patiala. Mr. Abhilaksh Gaind, Advocate and Mr. Rakesh Roy, Advocate for respondent/Municipal Corporation, Maler Kotla. Mr. Teevar Sharma, Additional Advocate General, Punjab. Mr. Harsh Vardhan Shehrawat, Additional Advocate General, Haryana., On 12 October 2023, the following order was passed: Reference dated 19 September 2023 is received from the District and Sessions Judge, Ambala on a complaint given by Mr. Phalit Sharma, Additional District and Sessions Judge, Ambala, which reads as under:, With due respect, it is submitted that the undersigned has official residence in a colony adjoining Sessions House and other Judicial Officers are staying in other officers' colonies situated nearby. It is further humbly submitted that after shifting to the allotted house, the undersigned has saved himself from stray dogs' attack twice and official staff also faced the same attack and even the general public at large, including people moving on two wheelers, are commonly experiencing such horrifying experiences. The undersigned had sent separate requests to the Deputy Commissioner and Municipal Commissioner, Ambala, to follow the directions passed by the Hon'ble High Court concerning checking stray dog menace, but unfortunately no concrete actions have been taken, which is in total defiance of repeated directions of Hon'ble Higher Judicial Forums. The Hon'ble Apex Court in Civil Appeal No. 5988/2019 titled as 'Animal Welfare Board of India Vs. People for Elimination of Stray Troubles and Others' 2016 (2) SCC 598 considered the issues relating to applicability and enforcement of the Prevention of Cruelty to Animals Act, 1960 and the Animal Birth Control (Dogs) Rules, 2001, as very important and gave liberty to the parties to approach Hon'ble High Courts whenever there is violation of law. Similarly, in the quoted case, the Hon'ble Apex Court also made observations concerning safety of human beings in the following manner: 'In name of compassion for dogs, lives of human beings are not to be sacrificed – sacrosanct duty of local authorities to provide sufficient number of dog pounds. Incumbent upon local authorities to provide requisite number of cages for capture and transportation of stray dogs. Once this is done, balance between compassion to dogs and lives of human beings can harmoniously co‑exist. No innovative method to be adopted to carry out responsibility under the 1960 Act. Any kind of laxity while carrying out statutory obligations is not countenanced in law.' To put a check on dog biting cases, the Hon'ble Apex Court in the case titled 'Aluva Janaseva @ Janaseva Sisubhavanthr. Its Secretary Vs. Union of India and Others' 2016 (1) RCR (Civil) 366 has explicitly held in paragraph 2 that 'Stray dogs menace, protection from stray dogs on the foundation that the lives of human beings are to be saved, for they cannot be allowed to become prey to stray dogs. Many children have been bitten by stray dogs and have suffered serious injuries. Children are fundamental embodiment of the human race and they deserve protection from any kind of attack by stray dogs – notice issued on writ petition.', It is evident from the above observations of the Hon'ble Apex Court that the Court is equally concerned about stray dog menace and has recently shown its anguish in this regard. Unfortunately, the Ambala Administration is not paying any heed to the repeated requests made by the undersigned through the office of the Learned District and Sessions Judge, Ambala, to perform its duties as required. Even the intervention of the office of the Learned District and Sessions Judge, Ambala, in this regard has proved to be a futile exercise, compelling the undersigned to protect himself, colleagues and the public at large, and to request your good office to pass necessary directions to the District Administration, Ambala, to act immediately in the manner required., It is also intimated that the District Administration, Ambala and the Municipal Committee, Ambala, are already in contempt proceedings in the court of the Learned Civil Judge (Junior Division), Ambala, separately, for violating orders passed by your good office communicated to the Learned District and Sessions Judge, Ambala, vide Endorsement No. 10257 Gen.III.Z.2 (a) dated 04 June 2020, communicated to the Deputy Commissioner, Ambala, vide Memo No. 9774 dated 18 June 2020, who further communicated directions to the concerned authorities of the Municipal Committee under intimation to the Learned District and Sessions Judge, Ambala, through Letter No. 1448/LFA dated 09 July 2020. Since three directions were passed by our Hon'ble High Court for the welfare of the public at large to put a check on the menace of stray dogs and, being a public servant and also a Judicial Officer whose personal security from any angle is the responsibility of the District Administration, I am feeling unsafe because of total defiance of local authorities concerned against repeated directions of the Hon'ble High Court to check this menace. Moreover, the State of Haryana, of which the Ambala Administration is also a part, is already facing contempt proceedings pending adjudication before the Hon'ble High Court on this issue, in COCP-1121-2017 (O&M) and COCP-1182-2017 (O&M) titled as Rav Pratap Singh Vs. Anurag Aggarwal & Others., It has become my legal and moral duty as a responsible citizen to apprise the Hon'ble High Court about the lackadaisical approach of the District Administration, Ambala towards Judges' security and welfare of the public at large, through this letter of request. Hence, it is humbly requested to pass necessary directions to the District Administration, Ambala, on the administrative side to comply with, or, on the judicial side, if deemed appropriate, for contempt against the local administrative authorities, so that the law of the land prevails and is given effect in the manner desired by everyone., This matter is pending on the judicial side in COCP Nos. 1121-2017 and COCP-1182-2017, wherein the affidavits of the respective Municipal Committees in the States of Haryana and Punjab are being sought and the same is listed for 23 November 2023. Apart from this, it is also brought to the notice of this Court a newspaper report of 9 September 2023 published in The Chandigarh Tribune regarding dog bites and suggestions from the citizens of the tri‑city seeking the setting up of pounds for hounds to prevent violent encounters. A copy of the newspaper cutting is taken on record as Annexure A.1., Since COCP Nos. 1121-2017 and COCP-1182-2017, in which the same issue is under consideration, are pending adjudication before this Court, the Registry is directed to attach this order with the above mentioned COCPs and the same be taken up for hearing on 13 October 2023 after giving notice to all the concerned persons. These petitions were listed for 23 November 2023; however, on receiving a complaint from the Additional District and Sessions Judge, Ambala, wherein a request is made to take action against the stray dogs menace existing outside the judicial complex which houses the residences of Judicial Officers at Ambala, these cases are pre‑poned and taken up today., Learned counsel appearing for the State of Haryana, on instructions from the Deputy Commissioner, Ambala, who had appeared in the present case as well as in some other case, has submitted that on 20 September 2023 the Urban Town Planner, Municipal Corporation, Ambala invited e‑Tenders for the sterilisation and vaccination of stray dogs in Ambala. A copy of the communication is placed on record. However, the aforesaid action is not an effective and immediate relief to the Judicial Officers, who are facing eminent danger of stray dogs as they are even unable to go for morning or evening walk; therefore, the Deputy Commissioner, Ambala is directed to immediately look into the matter and remove the stray dogs from the nearby areas of the Judicial Complex, where the residences of the Judicial Officers are situated, and rehabilitate the stray dogs at the outskirts of the city, which is a less populated area., Mr. Gaurav Mohunta, Advocate appearing for the Municipal Corporation, Chandigarh, submits that by‑laws have been framed and put to the House for approval and, in this regard, some news reports are also published in the Tribune and the Times of India (Chandigarh Edition) today, proposing that six breeds – American Bull Dog, American Pitbull, Bull Terrier, Cane Corso, Dogo Argentino, Rottweiler – and all of their cross‑breeds will not be permitted to be kept in residential areas in any manner. With regard to the suggestions given by the residents, he submits that a fresh affidavit will be filed. The matter is listed again on 31 October 2023. Compliance affidavits be filed on or before the next date of hearing., A copy of this order be sent to the Deputy Commissioner, Mohali, Deputy Commissioner, Panchkula as well to file an affidavit of action taken in line with the action taken by the Union Territory, Chandigarh. Let a copy of this order be placed on the file of the connected case., Waseem Ansari, Judge, High Court of Punjab and Haryana, Neutral Citation No.: 6.
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Suresh @ Pintya Kashinath Kamble Appellant versus the State of Maharashtra Respondent. Mister Drupad Patil, Amicus Curiae appointed in the matter. Mister Yogesh Y. Dabke, Advocate for the Respondent-State., The matter is placed before me by an administrative order. Criminal Appeal No.272/2017 is already disposed of by a judgment and order dated 25 January 2018 passed by the Single Judge Bench of the High Court of Bombay (Coram: A.M. Badar, Judge). The operative part of the judgment and order reads thus: The appeal is partly allowed. Conviction and resultant sentence imposed on the appellant/accused for the offences punishable under Section 376 of the Indian Penal Code and for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act is quashed and set aside. Instead, the appellant/accused Suresh @ Pintya Kashinath Kamble is convicted for the offence punishable under Section 18 read with Section 6 of the Protection of Children from Sexual Offences Act as well as for the offence punishable under Section 511 read with Section 376(2) of the Indian Penal Code. The appellant/accused is sentenced to suffer rigorous imprisonment for one half of the life imprisonment and he shall also be liable to pay a fine of Rs.5,000 and in default of payment of fine to suffer simple imprisonment for one month for the offence punishable under Section 18 read with Section 6 of the Protection of Children from Sexual Offences Act. As the appellant/accused is sentenced for committing the offence punishable under Section 18 read with Section 6 of the Protection of Children from Sexual Offences Act by imposing punishment which is greater in degree, no separate sentence for commission of offence punishable under Section 511 read with Section 376(2) of the Indian Penal Code is imposed on him. The rest of the impugned judgment and order of the learned trial court is maintained. The appeal stands disposed of accordingly., The Registry of the High Court of Bombay received a letter dated 2 August 2022 sent by the Superintendent, Kolhapur Central Prison. The letter mentioned that this Court had sentenced the appellant to suffer half of the life imprisonment. According to the Jail Superintendent, he could not understand exactly how much sentence the appellant has to undergo. The Jail Superintendent requested guidance in that behalf from the Sessions Court at Sangli where the trial was conducted. The Additional Sessions Judge and District Judge‑2, Sangli informed the Superintendent, Kolhapur Central Prison that since the order was passed by this Court, it would be proper if the guidance is sought from this Court. After receiving a letter dated 18 April 2022 from the Sessions Court, the Jail Superintendent sent an urgent letter dated 2 August 2022 addressed to the Registrar, Appellate Side of this Court. The Jail Superintendent specifically sought directions as to how many years the appellant has to be detained in prison to serve his sentence., I appointed learned counsel Mister Drupad Patil as Amicus Curiae to assist the Court. I have heard him. I have also heard Mister Dabke, Advocate for the State., Mr. Patil relied on certain provisions of the Protection of Children from Sexual Offences Act, 2012, the Indian Penal Code and the Code of Criminal Procedure, 1973. He also relied on certain judgments. He submitted that Section 2(2) of the Protection of Children from Sexual Offences Act and Section 57 of the Indian Penal Code cover the issue completely. Apart from that a Single Judge Bench of the High Court of Bombay in the case of Chandrakant Vithal Pawar versus State of Maharashtra has also clarified the issue. He submitted that these provisions and the earlier judgment were clear and therefore there was no occasion for the Superintendent of Jail to seek any guidance from this Court in this behalf. He submitted that the Superintendent should have approached the Law and Judiciary Department and the Home Department for seeking guidance instead of approaching this Court when there was no ambiguity or confusion in the operative part of the judgment., Advocate Dabke also supported the submissions of Mr. Patil., I have considered these submissions. Before discussing the provisions of these Acts, it is necessary to reproduce Section 18 of the Protection of Children from Sexual Offences Act, which reads: 'Punishment for attempt to commit an offence. Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one‑half of the life imprisonment or, as the case may be, one‑half of the longest term of imprisonment provided for that offence or with fine or with both.', Similarly Section 511 of the Indian Penal Code makes a similar provision: 'Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one‑half of the life imprisonment or, as the case may be, one‑half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.', The operative part of the order passed in Criminal Appeal No.272/2017 reproduces the wording used in both these sections. Therefore, there was no ambiguity or confusion as far as the operative part of the judgment and order dated 25 January 2018 is concerned. The Jail Superintendent is expected to execute this sentence by following the operative part of the order., Section 2(2) of the Protection of Children from Sexual Offences Act reads: 'The words and expressions used herein and not defined but defined in the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Information Technology Act, 2000 shall have the meanings respectively assigned to them in the said Codes or the Acts.' Hence, for the words and expressions not defined under the Protection of Children from Sexual Offences Act, they will have to be given meaning in consonance with their meaning in the Indian Penal Code. The wording 'life imprisonment' is not defined under the Protection of Children from Sexual Offences Act. However, those words are used under the Indian Penal Code and therefore reference will have to be made to the Indian Penal Code provisions., In this particular question, the quantum of sentence is to be looked at. When it is mentioned that it should be one‑half of the life imprisonment then the exact meaning will have to be found from the Indian Penal Code, which provides the answer under Section 57: 'Fractions of terms of punishment. In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.' This section leaves no scope of doubt, ambiguity or confusion as to how the term should be calculated when the accused is sentenced to suffer half of the life imprisonment. It provides that in such case, life imprisonment should be reckoned as equivalent to twenty years. Thus, half of life imprisonment would mean imprisonment for ten years., This aspect is already decided by the High Court of Bombay in the case Chandrakant Vithal Pawar versus State of Maharashtra. Paragraphs 31 and 32 of that judgment read: '31. As noted above, minimum sentence of imprisonment for the offence of rape under section 376(2)(a) is rigorous imprisonment for ten years. Therefore, the minimum sentence which may be awarded for attempt to commit rape would be rigorous imprisonment for five years. However, the maximum sentence for the offence of rape under section 376(2)(a) of the Indian Penal Code is life imprisonment. Therefore, the maximum sentence for attempt to commit rape could be half of life imprisonment. 32. Section 57 of the Indian Penal Code provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. In view of this, for the offence of attempt to commit rape punishable under section 376(2)(a) read with section 511, the maximum sentence would be rigorous imprisonment for ten years.', Hence, no further explanation or guidance is necessary. The Jail Superintendent can seek guidance from these provisions and the judgment referred herein and calculate the exact sentence which the appellant has to undergo., Before parting with this order, I must record appreciation for the efforts put in by Amicus Curiae Mister Drupad Patil. Advocate Dabke has also ably assisted the Court., With these observations, the Registry is directed to inform the Jail Superintendent of this order at the earliest.
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Civil Appeal No. 1629 of 2022 Sushil Raghav (Appellant) versus Union of India and Others (Respondents). The appellant instituted Original Application No. 68 of 2021 before the National Green Tribunal for the purpose of seeking remedial action to prevent untreated sewage and effluent being discharged in the storm water drains in Karkarmodel, situated in Municipal Corporation Ward No. 43 at Sahibabad in Ghaziabad., In its order dated 19 March 2021, the Tribunal noted that the issue had already been dealt with by it in an earlier order dated 27 January 2021 (Manoj Mishra versus Union of India and Others Original Application No. 6 of 2012). Original Application No. 6 of 2012 related to remedial action required to prevent pollution of the River Yamuna and the drains and tributaries connected in Delhi, Haryana and Uttar Pradesh. In its order dated 19 March 2021, the Tribunal adopted various directions which are extracted below: Independent assessment of flow in all the drains reaching Yamuna to be undertaken within the next two months and thereafter submit an action plan for setting up sewage treatment plants to bridge the gap with definite and monitorable timelines. Out of 427 million litres per day of treatment capacity in Sahibabad and Loni sewage treatment plants, only 80 million litres per day capacity are compliant to standards. A direction to Uttar Pradesh Jal Nigam, Ghaziabad Municipal Development Authority and Ghaziabad Municipal Corporations to upgrade or rehabilitate the sewage treatment plants to meet revised environmental standards of Total Suspended Solids/Biochemical Oxygen Demand 10/10 mg per litre within the next two years and the authorities being directed to submit an action plan to achieve this within the next three months. Stoppage of all sewage from sewered areas of Sahibabad Banthala and Indira Puri as per the action plan prepared by the State Government by December 2020. Implementation of septage management by December 2020 in all areas which are not sewered. Uttar Pradesh State Industrial Development Corporation be directed to ensure setting up common effluent treatment plants and ensure their proper functioning. Uttar Pradesh Pollution Control Board be directed to put in place policy for realizations in case the industries fail to pay. As requested by the Uttar Pradesh Pollution Control Board the arrears of unpaid environmental charges be directed to be realized as arrears of land revenue. The Yamuna Management Committee is unable to comment on the omnibus compendium submitted for National Mission for Clean Ganga funding pertaining to phyto and bio remediation. However, when approved the drains which are polluting Sahibabad and its tributary drains need to be taken up if feasible. The reply of Uttar Pradesh on in‑situ bio/phyto remediation is vague and does not inspire confidence about the seriousness of the intent. A direction is required to be given to the Uttar Pradesh Irrigation Engineer‑in‑Chief and the Principal Secretary Irrigation relating to the inordinate delay in paying Delhi Development Authority for undertaking the rejuvenation of the flood plains on the Uttar Pradesh side as a deposit work which was promised on several occasions but has not made any headway in the last seven months when one month’s time had been sought., The appellant moved Execution Application No. 33 of 2021, seeking execution of the order dated 19 March 2021. By the impugned order, the Tribunal observed that the request made in the application goes beyond what has been said in the order of the Tribunal dated 19 March 2021 and, even otherwise, if there was a breach of the order of the Tribunal, the appellant would have to seek the remedy under Section 26 of the National Green Tribunal Act, 2010. The Tribunal did not find that there was any case for taking recourse to its power under Section 25 for executing the order., The National Green Tribunal has power under Section 25 to execute its orders as decrees of a civil court. Section 26, comprised in Chapter IV, deals with the penalty for failure to comply with the orders of the Tribunal., The grievance of the appellant is that the power to impose a penalty under Section 26 will not redress the substratum or the grievance which is the discharge of untreated sewage and effluent and the absence of a sewerage system., We are of the considered view that the observation of the Tribunal that there was no case for executing the earlier order under Section 25 is misconceived. The Tribunal is entrusted with the wholesome power to ensure that its orders are complied with. The absence of sewerage facilities is an important aspect which would merit the exercise of powers by the Tribunal under Section 25. The invocation of the power to levy a penalty under Section 26 will not necessarily serve the purpose., Accordingly, we allow the appeal and set aside the impugned order of the Tribunal dated 1 November 2021. Execution Application No. 33 of 2021 is restored to the file of the National Green Tribunal., The Tribunal shall take up the application under Section 25 and consider what orders would be necessary to effectuate the original order dated 19 March 2021 of which execution was sought., The appeal is accordingly disposed of. Pending applications, if any, stand disposed of., New Delhi; February 20, 2023. These matters were called on for hearing today. For the appellant: Mr. Akash Vashishtha, Advocate; Ms. Neelam Singh, Advocate‑on‑Record. For the respondents: Ms. Aishwarya Bhati, Additional Solicitor General; Mr. Gurmeet Singh Makker, Advocate‑on‑Record; Ms. Ruchi Kohli, Advocate; Ms. Swarupma Chaturvedi, Advocate; Mr. Manvendra Singh Rathore, Advocate; Dr. Arun Kumar Yadav, Advocate; Mrs. Niranjana Singh, Advocate‑on‑Record; Mr. Avijit Roy, Advocate‑on‑Record; Mr. Pradeep Misra, Advocate‑on‑Record; Mr. Daleep Dhyani, Advocate; Mr. Suraj Singh, Advocate. Upon hearing the counsel, the National Green Tribunal made the following: The appeal is disposed of in terms of the signed order. Pending applications, if any, stand disposed of.
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F.NO. 31/Judl./2022 DATED: 6th January 2022\n\nIt is hereby notified for information of Members of the Bar, parties in person and all concerned that the Competent Authority, keeping in view the sudden upsurge of Covid-19 cases, has been pleased to direct as follows: with effect from 07 January 2022 (Friday), all matters will be heard in virtual mode and the benches will sit at the Residential Offices. Only extremely urgent mentioned matters, fresh matters, bail matters, matters involving stay, detention matters and fixed date matters will be listed before the Honourable Courts with effect from 10 January 2022 (Monday) till further orders. Transfer petitions will be listed before the Regular Benches instead of Honourable Single Judge Bench till further orders. Applications for exemption from surrendering will also be listed before the Regular Benches instead of Honourable Chamber Judge till further orders.\n\nB.L.N. Achary, Chirag Bhanu Singh, Registrar (J-II), Registrar (J-I)\n\nCopy to: Supreme Court Bar Association with five spare copies of the circular with a request that the circular may be displayed on the notice board of the Bar Association for information to the members of the Bar. Supreme Court Advocates-on-Record Association with five spare copies of the circular with a request that the circular may be displayed on the notice board of the Association for information to the members of the Association.
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The petitioners have instituted proceedings under Article 32 of the Constitution challenging the constitutional validity of the Electoral Bond Scheme which introduced anonymous financial contributions to political parties. The petitioners have also challenged the provisions of the Finance Act 2017 which, among other things, amended the provisions of the Reserve Bank of India Act 1934, the Representation of the People Act 1951, the Income Tax Act 1961, and the Companies Act 2013., Section 31 of the Reserve Bank of India Act stipulates that only the Reserve Bank of India or the Central Government authorized by the Act shall draw, accept, make, or issue any bill of exchange or promissory note for payment of money to the bearer of the note or bond. The Finance Act amended the Act by including Section 31(3) which permits the Central Government to authorize any scheduled bank to issue electoral bonds., To understand the context in which the legislative amendments were introduced, it is necessary to juxtapose the amendments with the regime on financial contributions to political parties. The law relating to financial contributions to political parties focuses on (a) contributions by corporate entities; (b) disclosure of information on contributions; and (c) income tax exemptions for donations., Corporate contributions: The Companies Act 1956 and the provisions of the Representation of the People Act, when they were enacted, did not regulate contributions to political parties by companies and individuals. The Companies (Amendment) Act 1960 included Section 293A to regulate contributions by companies. The provision stipulated that companies cannot contribute to (a) any political party; and (b) to any individual or body for any political purpose, amounts exceeding twenty‑five thousand rupees in a financial year or five percent of its average net profits during the three financial years immediately preceding the contribution, whichever is greater. Companies were also required to disclose the amount contributed in a financial year in their profit and loss accounts and furnish particulars of the total amount contributed and the name of the party, individual or entity to which such amount was contributed., Companies defaulting in complying with the disclosure requirement were punishable with a fine which may extend to five thousand rupees., The Companies (Amendment) Act 1969 amended Section 293A to ban contributions to political parties and for political purposes. Companies acting in contravention of the prohibition were punishable with a fine which could extend to five thousand rupees, and every officer who defaulted was punishable with imprisonment which could extend to three years, besides being liable to fine., The Companies (Amendment) Act 1985 amended Section 293A to permit contributions to political parties and for political purposes once again. The provision states that no Government company and no other company which has been in existence for less than three financial years shall contribute any amount directly or indirectly to any political party or for any political purpose to any person. A company not falling within those categories may contribute any amount directly or indirectly to any political party or for any political purpose, provided that the aggregate amount in any financial year shall not exceed five percent of its average net profits determined in accordance with the provisions of sections 349 and 350 during the three preceding financial years. A resolution authorising the contribution must be passed by the Board of Directors., The provision also deems a donation or subscription given by a company on its behalf to a person who is carrying out activity likely to support a political party as a contribution for a political purpose. Direct or indirect expenditure by companies on advertisements on behalf of political parties or publications for the advantage of a political party are also regarded as contributions for political purposes., Three other restrictions were included: (a) the company (which is not a government company) should have been in existence for more than three years; (b) contributions could only be made when a resolution authorising the contributions had been passed at a meeting of the Board of Directors; and (c) the penal consequences were made more stringent. A fine extendable to three times the amount contributed could be imposed, and every officer of the company who defaulted was punishable with imprisonment for a term which may extend to three years and also liable to fine., Section 182 of the Companies Act 2013 substantively incorporated the provisions of Section 293A of the 1956 Act, as amended in 1985. Section 182 enables a company to contribute any amount directly or indirectly to any political party. The provision bars a Government company and a company which has been in existence for less than three financial years from contributing to a political party. The provisos to the provision prescribe the following two conditions: (a) the aggregate amount contributed by the company in any financial year shall not exceed seven and a half percent of its average net profits during the three immediately preceding financial years; and (b) a contribution can be made only if the Board of Directors issues a resolution authorising the contribution at a meeting. Such a resolution shall, subject to the other provisions of the section, be deemed to be a justification in law for the making and acceptance of the contribution authorised by the Board., Sub‑section (3) of Section 182 mandates every company to disclose in its profit and loss account any amount contributed by it to any political party during the financial year with specific particulars of the total amount contributed along with the name of the political party to which the contribution was made., Section 182 of the Companies Act 2013 made two modifications from Section 293A of the Companies Act 1956: (a) the cap on the contributions which can be made by companies was increased from five percent to seven and a half percent of their average net profits; and (b) more stringent consequences for violation were imposed. The fine was extendable to five times the contribution., The Finance Act 2017 made three changes to Section 182 of the Companies Act: (a) the first proviso to Section 182(1) which prescribed a cap on corporate funding was omitted; (b) Section 182(3) was amended to require only a disclosure of the total amount contributed to political parties by a company in a financial year, excluding the requirement to disclose the particulars of the amount contributed to each political party; and (c) Sub‑section 3A was introduced, by which a company could contribute to a political party only by a cheque, bank draft, or electronic clearing system. The proviso to the sub‑section states that a company may also contribute through any instrument issued pursuant to any scheme notified under any law for the time being in force for contribution to political parties., Curbing black money: The Taxation Laws (Amendment) Act 1978 included Section 13A to the Income Tax Act exempting the income of political parties through financial contributions and investments from income tax. The objects and reasons of the Amending Act stipulated that tax exemption would increase disposable funds from legitimate sources. However, to secure the benefit of exemption, the following conditions were required: (a) the political party was required to keep and maintain books of account and other documents which would enable the Assessing Officer to properly deduce its income; (b) the political party had to maintain a record of voluntary contributions in excess of twenty thousand rupees, along with the name and address of the person who made such contributions; and (c) the accounts of the political party were required to be audited by an accountant., By the Election and Other Related Laws (Amendment) Act 2003, Sections 80GGB and 80GGC were inserted in the Income Tax Act making contributions made to political parties tax deductible. The speech of Mr Arun Jaitley, the then Minister of Law and Justice while moving the Bill indicates that contributions were made tax deductible to incentivise contributions through cheque and other banking channels., The Finance Act 2017 made the following amendments to Section 13A: (a) the political party was not required to maintain a record of contributions if the contribution was received by electoral bonds; and (b) the political party must receive a donation in excess of two thousand rupees only by a cheque, bank draft, electronic clearing system or through an electoral bond., Transparency: The Election and Other Related Laws (Amendment) Act 2003 amended the provisions of the Representation of the People Act. Section 29C of the Representation of the People Act was introduced for requiring each political party to declare the details of the contributions received., The treasurer of a political party or any other person authorized by the political party must in each financial year prepare a report in respect of the contributions in excess of twenty thousand rupees received by the party from a person or company other than Government companies in that financial year. The report prepared must be submitted to the Election Commission of India before the due date for furnishing a return of income of that financial year under the Income Tax Act. A political party which fails to submit the report shall not be entitled to any tax relief as provided under the Income Tax Act., The provision was amended by the Finance Act 2017 to include a proviso by which the political party was not required to disclose details of contributions received by electoral bonds., Annexure I to this Judgment depicts in a tabular form the amendments to the provisions of the Representation of the People Act, the Income Tax Act, the Companies Act, and the Reserve Bank of India Act by the Finance Act 2017., The effect of the amendments introduced by the Finance Act to the above legislations is that: (a) a new scheme for financial contribution to political parties is introduced in the form of electoral bonds; (b) the political parties need not disclose the contributions received through electoral bonds; (c) companies are not required to disclose the details of contributions made in any form; and (d) unlimited corporate funding is permissible., Objections of the Reserve Bank of India and the Election Commission of India to the Electoral Bond Scheme: On 2 January 2017, the Reserve Bank of India wrote a letter to the Joint Secretary in the Ministry of Finance on the proposal of the Government of India to enable scheduled banks to issue electoral bearer bonds for the purpose of donations to political parties before the Finance Act 2017 was enacted. The RBI objected to the proposal on the ground that (a) the amendment would enable multiple non‑sovereign entities to issue bearer instruments, which would militate against the RBI’s sole authority for issuing bearer instruments and has the potential of becoming currency; electoral bonds can undermine the faith in banknotes issued by the Central Bank if the bonds are issued in sizable quantities; (b) though the identity of the person or entity purchasing the bearer bond will be known because of the Know Your Customer requirement, the identities of the intervening persons/entities will not be known, which would impact the principles of the Prevention of Money Laundering Act 2002; and (c) the intention of introducing electoral bonds can be accomplished by cheque, demand draft, and electronic and digital payments. There is no special need for introducing a new bearer bond in the form of electoral bonds., On 30 January 2017, the Ministry of Finance responded to the observations of the RBI and stated that (a) the RBI has not understood the core purpose of electoral bonds which is to keep the identity of the donor secret while at the same time ensuring that the donation is only made from tax‑paid money; and (b) the fear that electoral bonds might be used as currency is unfounded because there is a time limit for redeeming the bonds., By a letter dated 4 August 2017, the Deputy Governor of the Reserve Bank of India stated that India can consider issuing the electoral bonds on a transitional basis through the RBI under the existing provisions of Section 31(1) of the Reserve Bank of India Act. The RBI recommended the incorporation of the following safeguards to minimise the inherent scope of misuse of the bonds for undesirable activities: (a) the electoral bonds may have a maximum tenure of fifteen days; (b) the electoral bonds can be purchased for any value in multiples of a thousand, ten thousand, or a lakh of rupees; (c) the purchase of electoral bonds would be allowed from a Know Your Customer compliant bank account of the purchaser; (d) the electoral bonds can be redeemed only upon being deposited into the designated bank account of an eligible political party; (e) the sale of electoral bonds will be open only for a limited period, may be twice a year for seven days each; and (f) the electoral bonds will be issued only at the Reserve Bank of India, Mumbai., The draft of the Electoral Bond Scheme was circulated to the RBI for its comments. The draft conferred notified scheduled commercial banks, apart from the RBI, with the power to issue electoral bonds. The RBI objected to the draft Scheme by a letter dated 14 September 2017. The RBI stated that permitting a commercial bank to issue bonds would have an adverse impact on public perception about the Scheme, as also the credibility of India’s financial system in general and the central bank in particular. The RBI again flagged the possibility of shell companies misusing bearer bonds for money laundering transactions. The RBI recommended that electoral bonds may be issued in electronic form because it would (a) reduce the risk of their being used for money laundering; (b) reduce the cost; and (c) be more secure., The Electoral Bond Scheme was placed for deliberation and guidance by the RBI before the Committee of the Central Board. The Committee conveyed serious reservations on the issuance of electoral bonds in the physical form. The reservations were communicated by the RBI to the Finance Minister by a letter dated 27 September 2017. The reservations are catalogued below: (a) issuance of currency is a monopolistic function of a central authority which is why Section 31 of the Reserve Bank of India Act bars any person other than the RBI from issuing bearer bonds; (b) issuance of electoral bonds in the scrips will run the risk of money laundering since the consideration for transfer of scrips from the original subscriber to a transferee will be paid in cash, leaving no trail of transactions; (c) issuance of electoral bonds in the scrip form could also expose it to the risk of forgery and cross‑border counterfeiting besides offering a convenient vehicle for abuse by aggregators; and (d) the electoral bond may not only be seen as facilitating money laundering but could also be projected, albeit wrongly, as enabling it., On 26 May 2017, the Election Commission of India wrote to the Ministry of Law and Justice that the amendments to the Income Tax Act, the Representation of the People Act, and the Companies Act introduced by the Finance Act 2017 will have a serious impact on transparency of political finance/funding of political parties. The letter notes that the amendment to the Representation of the People Act by which donations through electoral bonds were not required to be disclosed is a retrograde step towards transparency of donations: (ii) it is evident from the amendment that any donation received by a political party through an electoral bond has been taken out of the ambit of reporting under the Contribution Report as prescribed under Section 29C of the Representation of the People Act 1951 and therefore, this is a retrograde step as far as transparency of donations is concerned and this proviso needs to be withdrawn; (iii) moreover, in a situation where contributions received through electoral bonds are not reported, on perusal of the contribution reports of the political parties, it cannot be ascertained whether the political party has taken any donation in violation of provisions under Section 29B of the Representation of the People Act 1951 which prohibits the political parties from donations from Government Companies and foreign sources., Referring to the deletion of the provision in the Companies Act requiring companies to disclose particulars of the amount contributed to specific political parties, the Election Commission of India recommended that companies contributing to political parties must declare party‑wise contributions in the profit and loss account to maintain transparency in the financial funding of political parties. Further, the Election Commission also expressed its apprehension to the deletion of the first proviso to Section 182(1) by which the cap on corporate donations was removed. The Election Commission recommended that the earlier provision prescribing a cap on corporate funding be re‑introduced because: (a) unlimited corporate funding would increase the use of black money for political funding through shell companies; and (b) capped corporate funding ensured that only profitable companies with a proven track record could donate to political parties., Electoral Bond Scheme: On 2 January 2018, the Ministry of Finance in the Department of Economic Affairs notified the Electoral Bond Scheme 2018 in exercise of the power under Section 31(3) of the Reserve Bank of India Act. The Electoral Bond is a bond issued in the nature of a promissory note which is a bearer banking instrument and does not carry the name of the buyer. The features of the Scheme are as follows: (a) The bond may be purchased by a person who is (i) a citizen of India; or (ii) incorporated or established in India. Person includes (a) an individual; (b) a Hindu undivided family; (c) a company; (d) a firm; (e) an association of persons or a body of individuals, whether incorporated or not; (f) every artificial juridical person, not falling within any of the above categories; and (g) any agency, office, or branch owned or controlled by such a person. An individual can buy bonds either singly or jointly with other individuals; (b) an Electoral Bond can only be encashed by an eligible political party. A political party, to be eligible to receive an electoral bond, has to be registered under Section 29A of the Representation of the People Act, and ought to have secured not less than one percent of the votes polled in the last general election to the House of the People or the Legislative Assembly of the State. An eligible political party can encash a bond only through a bank account with an authorised bank. The scheme has notified the State Bank of India as the bank authorised to issue and encash bonds; (c) the instructions issued by the Reserve Bank of India regarding Know Your Customer apply to buyers of the bond. The authorised bank may call for additional KYC documents if necessary; (d) payments for the issuance of the bond are accepted in Indian rupees, through demand draft, cheque, Electronic Clearing System or direct debit to the buyer’s account. Where payment is made by cheque or demand draft, it must be drawn in favour of the issuing bank at the place of issue; (e) the bonds are issued in denominations of Rs 1,000, 10,000, 1,00,000, 10,00,000 and 1,00,00,000; (f) the bond is valid for fifteen days from the date of issue. No payment will be made to a political party if the bond is deposited after the expiry of fifteen days. If the bond is not encashed within fifteen days, it will be deposited by the authorised bank with the Prime Minister’s Relief Fund; (g) a buyer who wishes to purchase electoral bonds can apply in the format specified in Annexure II of the Scheme. The issuing branch shall issue the bond if all the requirements are fulfilled.
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The application shall be rejected if the application is not KYC compliant or if the application does not meet the requirements of the scheme. The bond issued is non‑refundable. The information furnished by the buyer is to be treated as confidential by the authorized bank. It shall be disclosed only when demanded by a competent Supreme Court of India or upon the registration of a criminal case by any law enforcement agency. The bond shall be available for purchase for a period of ten days on a quarterly basis, in the months of January, April, July, and October as specified by the Central Government. Bonds will be available for an additional period of thirty days as specified by the Central Government in a year when General Elections to the Lok Sabha are to be held. No interest is payable on the bond. No commission, brokerage, or any other charges for issue of a bond shall be payable by the buyer against purchase of the bond. The value of the bonds shall be considered as income by way of voluntary contributions received by an eligible political party for the purpose of exemption from Income Tax under Section 13A of the Income Tax Act. The bonds are not eligible for trading., The petitioners instituted proceedings under Article 32 seeking a declaration that the Electoral Bond Scheme and the following provisions be declared unconstitutional: Section 135 of the Finance Act 2017 and the corresponding amendment in Section 31 of the Reserve Bank of India Act; Section 137 of the Finance Act 2017 and the corresponding amendment in Section 29C of the Representation of People Act; Section 11 of the Finance Act 2017 and the corresponding amendment in Section 13A of the Income Tax Act; and Section 154 of the Finance Act 2017 and the corresponding amendment to Section 182 of the Companies Act., In its order dated 13 April 2019, the Supreme Court of India observed that the amendments which have been challenged give rise to weighty issues which have a bearing on the sanctity of the electoral process. The Court directed all political parties, in the interim, to submit details of contributions received through electoral bonds (with particulars of the credit received against each bond, date of credit, and particulars of the bank account to which the amount has been credited) to the Election Commission of India in a sealed cover. The prayer for interim relief was rejected by observing that the operations under the scheme are not placed behind iron curtains incapable of being pierced. The financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the scheme mandates political parties to file audited statements of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain. All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some match. Therefore, it is not as though the operations under the scheme are behind iron curtains incapable of being pierced., The petitioners have also challenged the introduction of the Finance Act as a Money Bill under Article 110 of the Constitution. The issue of the scope of Article 110 has been referred to a seven‑Judge Bench and is pending adjudication. The petitioners submitted that they would press the grounds of challenge to the Finance Act independent of the issue on Money Bills in view of the upcoming elections to Parliament., By an order dated 31 October 2023, the batch of petitions was directed to be listed before a Bench of at least five Judges in view of the provisions of Article 145(3) of the Constitution. It is in this background that the challenge to the Electoral Bond Scheme and the amendments is before the Constitution Bench., The present batch of petitions gives rise to the following issues: (a) Whether unlimited corporate funding to political parties, as envisaged by the amendment to Section 182(1) of the Companies Act, infringes the principle of free and fair elections and violates Article 14 of the Constitution; and (b) Whether the non‑disclosure of information on voluntary contributions to political parties under the Electoral Bond Scheme and the amendments to Section 29C of the Representation of People Act, Section 182(3) of the Companies Act and Section 13A(b) of the Income Tax Act are violative of the right to information of citizens under Article 19(1)(a) of the Constitution., Submissions of petitioners – Mr Prashant Bhushan, learned counsel, made the following submissions: There is no rational basis for the introduction of electoral bonds. The main objective of introducing the Electoral Bond Scheme, as reflected in the article written by the then Finance Minister, Mr Arun Jaitley, was that it would enhance transparency in electoral funding since electoral bond transactions can only be made through legitimate banking channels. However, cash donations are still permitted even after the introduction of the Electoral Bond Scheme. The Central Government ignored the objections which were raised by both the Reserve Bank of India and the Election Commission of India to the Electoral Bond Scheme. The statutory amendments and the Electoral Bond Scheme which mandates non‑disclosure of information of electoral funding are unconstitutional because they defeat the purpose of introducing provisions mandating disclosure of information on political funding in the Representation of People Act and the Companies Act which was to enhance transparency in electoral funding; they violate Article 19(1)(a) which guarantees to the voter the right to information concerning the affairs of the public and the government; they violate Article 21 because the non‑disclosure of information of political contributions promotes corruption and quid pro quo arrangements. The available data indicates that more than ninety‑four percent of the total electoral bonds are purchased in denominations of rupees one crore, indicating that bonds are purchased by corporates and not individuals. The limited disclosure clause in the Electoral Bond Scheme prevents investigating agencies such as the Central Bureau of Investigation and the Enforcement Directorate from identifying corruption. They also violate the rights of shareholders of companies who are donating money to political parties by preventing disclosure of information to them. The statutory amendments and the Electoral Bond Scheme subvert democracy and interfere with free and fair elections because the huge difference in the funds received by ruling parties in the States and Centre vitiates a level playing field between different parties and between parties and independent candidates., Mr Kapil Sibal, learned senior counsel, made the following submissions: The amendments and the Electoral Bond Scheme skew free and fair elections by permitting unlimited contributions to political parties by corporate entities and removing the requirement of disclosure of information about political funding. Freedom of a voter in the negative connotation refers to the freedom to cast their vote without interference and intimidation. Freedom in the positive connotation includes the freedom to vote on the basis of complete and relevant information, including information about financial contributions to political parties. The argument of the Union of India that courts should show judicial restraint is erroneous because the amendments in question relate to the electoral process and do not pertain to economic policy. The presumption of constitutionality should not apply to statutes which alter the ground rules of the electoral process. The principle underlying the presumption of constitutionality is that the legislature represents the will of the people and that it is validly constituted through free and fair elections. It would be paradoxical to accord a presumption of constitutionality to the very laws or rules that set the conditions under which the legislature comes into being. Corporate funding per se is violative of the Constitution because corporate entities are not citizens and thus are not entitled to rights under Article 19(1)(a). The funds contributed to the Electoral Bond Scheme can be used in any manner and their use is not restricted to electoral campaigns. The Electoral Bond Scheme severs the link between elections and representative democracy because those elected are inclined to fulfill the wishes of the contributors and not the voters. This could be through direct quid pro quo where an express promise is made to enact a policy in favour of the donor and indirect quid pro quo where there is an influence through access to policy makers. The Scheme promotes information asymmetry where the information about political donations is not disclosed to voters but the Central Government is privy to such information through the State Bank of India, which is the authorized bank under the scheme. The information asymmetry will ensure that a larger portion of the donations would be made to the ruling party at the Centre. According to the data, the political party at the Centre has received fifty‑seven percent of the total contributions made through electoral bonds. The Electoral Bond Scheme skews the principle of one person, one vote because it gives the corporates a greater opportunity to influence political parties and electoral outcomes. The amendment to Section 182(3) permits loss‑making companies to contribute to political parties, unlimited contributions to political parties enabling significant policy influence, and non‑disclosure of information on political funding to shareholders. The amendments permitting non‑disclosure of information on political funding are violative of the right to information under Article 19(1)(a). The right to information on funding of political parties is a natural consequence of the judgment of this Court in ADR and PUCL because the underlying principle in the judgments is that an informed voter is essential for a functioning democracy. Information about funding to political parties is necessary for an informed voter since the Symbols Order 1968 and the provisions of the Tenth Schedule allow political parties to influence legislative outcomes and policies. The infringement of the right to information does not satisfy the proportionality standard vis‑à‑vis the purpose of curbing black money. Even if the argument that the Electoral Bond Scheme fulfills the purpose is accepted, non‑disclosure of information on political funding is not the least restrictive means to achieve the purpose. The infringement of the right to information does not satisfy the proportionality standard vis‑à‑vis the purpose of guaranteeing informational privacy because protecting donor privacy is not a legitimate purpose. There is no legitimate expectation of informational privacy to political contributions. The argument that it lies at the heart of privacy conflates speech with money. Secrecy of voting cannot be equated to political donations because while the former is an expression of political equality, the latter is contrary to political equality because it depends on the economic capacity of the contributor. Political funding is made to influence public policy. They are public acts which are by their very nature subject to public scrutiny. Even if donor privacy is necessary, on a balance, the public interest in free and fair elections trumps the private interest in confidentiality. Further, this Court has to balance between the possibility of victimisation on the disclosure of information and the infringement of the right to know. The amendment to Section 31 of the Reserve Bank of India Act is unconstitutional because of excessive delegation since it does not set out the contours of the scheme., Mr Shadan Farasat, learned counsel, made the following submissions: The Scheme does not effectively curb black money. Clause 14 of the Electoral Bond Scheme prohibits de jure trading of the bonds. However, trading is de facto permissible. Nothing prevents person A from purchasing the bond and trading it with person B who pays through cash. The right to information on political funding, which is traceable to Article 19(1)(a), can only be restricted on the grounds stipulated in Article 19(2). The purposes of curbing black money and recognizing donor privacy are not traceable to the grounds in Article 19(2). Even if the purposes are traceable to Article 19(2), the Scheme is unreasonable and disproportionate to the purpose of increasing political funding through banking channels and reducing political funding through non‑banking channels because the purpose is not satisfied: the regime still permits cash funding up to rupees two thousand; the operation of the Scheme increases anonymous funding through electoral bonds at the cost of contributions through regular banking channels; there is no rational nexus between the means and the purpose; other less restrictive means of contributing through banking channels are available; and the fifth prong of the proportionality analysis as laid down in Gujarat Mazdoor Sabha v. State of Gujarat and Ramesh Chandra Sharma v. State of Uttar Pradesh, that the legislation should have sufficient safeguard to prevent abuse, has also not been satisfied. The statutory amendments and the Scheme are manifestly arbitrary because large‑scale corruption and quid pro quo arrangements would go unidentified due to the non‑disclosure of information about political funding; they enable capture of democracy by wealthy interests; and they infringe the principle of one person‑one vote because a selected few overpower the voice of the masses because of their economic wealth. The deletion of the limit on corporate contributions is manifestly arbitrary because it permits donations by loss‑making companies, removes the control of shareholders over the decisions of the Board, and permits unlimited contribution by corporates thereby abrogating democratic principles. The provision permitting non‑disclosure of funding by companies is violative of the shareholders’ rights under Article 25 which includes the right of the shareholder to know how the resources generated from their property are utilized. Once a shareholder comes to know that a company is financing a political party and their conscience does not permit it, as an exercise of the right to conscience, the shareholder should be entitled to sell those shares; and if the shareholder feels that the political contributions are not a sound business decision, they must be entitled to exit the business by selling the shares. The information that would enable the shareholder to make such a decision is not disclosed, thus infringing the right under Article 19(1)(g)., Mr Nizam Pasha, learned counsel, made the following submissions: The Electoral Bond Scheme and the amendments are arbitrary as they permit Indian registered companies to purchase electoral bonds without considering their ownership and control. This goes against foreign investment laws in India, treating companies owned or controlled by non‑resident Indian citizens as foreign‑owned or controlled companies, without rational justification. The Electoral Bond Scheme is arbitrary due to its discriminatory and non‑transparent nature. It contradicts existing laws requiring transparency and verification of the beneficial ownership and source of funds. The amendments to Section 29C of the Representation of People Act and Section 182 of the Companies Act serve no purpose other than perpetuating illegal ends, as they exempt companies’ purchase of electoral bonds from public disclosure. This fails to achieve the scheme’s stated objective of curbing cash donations., Mr Vijay Hansari, learned senior counsel, made the following submissions: The objects and reasons of the Election and Other Related Laws (Amendment) Act 2003, which amended the Companies Act 1956, Income Tax Act 1961, and the Representation of People Act, indicate that the amendments were made to incentivise contributions through banking channels. Thus, the amendments to Section 13A of the Income Tax Act and Section 29C of the Representation of People Act are contrary to the object of inserting Section 13A and Sections 80GGB and 80GGC of the Income Tax Act. Since 1959, when companies were permitted to contribute to political parties, all companies were required to mandatorily disclose the total contributions made and the name of the party to which they have contributed. Further, ceiling limits for total contribution by companies were prescribed. The Finance Act 2017 does away with these transparency requirements. International perspectives on political funding regulations, including those from the United States, the United Kingdom, Switzerland and Singapore, emphasize the importance of transparency, disclosure, and reporting in political contributions. These examples underscore the global consensus on transparency in the political funding process., Mr Sanjay R. Hegde, learned senior counsel, made the following submissions: Public listed companies are subject to scrutiny since they raise funds from the public. Information pertaining to the company is essential to be brought to the public domain. This will enable informed debates and discussions regarding the use of money by such companies. Such information must particularly be made available to shareholders to enable them to make an informed choice with regard to trading of securities. Thus, the amendment to the Companies Act which removes the requirement of disclosure of information about political contributions is violative of the right to information of shareholders which flows from Article 19(1)(a). Public listed companies should not be allowed to make contributions without the consent of the majority of the shareholders or the consent of three‑fourths of shareholders. Non‑disclosure of information about political funding denies shareholders the right to choice that flows from Article 21. Shareholders are incapacitated from making a choice about whether they wish to invest in shares of a company which has contributed to a political party whose ideology that shareholder does not agree with. The amendment to Section 182(3) perpetuates the pre‑existing inequality in power between shareholders and the Board/Promoters/management and puts the shareholders in an even weaker position violating the right to substantive equality under Article 36., Mr P. B. Suresh, learned counsel, made the following submissions: The Scheme and amendments violate Articles 14 and 15 by disproportionately impacting regional political parties and political parties which represent marginalised and backward sections of society. The representation of the backward classes is low in the corporate sector. Thus, the Scheme has a disparate impact on parties whose social base is derived from the Scheduled Castes, Scheduled Tribes and backward classes. The presumption of constitutionality does not apply in full rigour to electoral laws because the incumbent legislators have a vested interest in shaping the laws that would make it easier for them to be re‑elected. The removal of the cap on corporate donations has strengthened the position of major political parties and created more barriers for the entry of new political parties. Political parties have a right to know the funding sources of rival political parties to enable them to critique it before the public., Submissions of Union of India – The learned Attorney General for India made the following submissions: Political parties are an integral product of a free and open society and play an important role in the administration of the affairs of the community. Accordingly, they are entitled to receive all support, including financial contributions. The Electoral Bond Scheme allows any person to transfer funds to political parties of their choice through legitimate banking channels instead of other unregulated ways such as direct transfer through cash. The Scheme ensures confidentiality of the contributions made to political parties. The benefit of confidentiality to contributors ensures and promotes contribution of clean money to political parties. Citizens do not have a general right to know regarding the funding of political parties. Right to know is not a general right available to citizens. The Supreme Court of India has evolved the right to know for the specific purpose of enabling and furthering the voters’ choice of electing candidates free from blemish. The influence of contributions by companies to political parties ought not to be examined by this Court. It is an issue of democratic significance and should be best left to the legislature., The learned Solicitor General of India made the following submissions: The legal framework prior to the enactment of the Electoral Bond Scheme was mostly cash‑based which incentivised infusion of black money into political parties, and consequently, into the electoral process in India. The Electoral Bond Scheme is an improvement on the prior legal framework. Donors to a political party often apprehended retribution from other political parties. Such apprehension incentivised donors to contribute unaccounted money to political parties to avoid identification and victimisation by other political parties. The Electoral Bond Scheme maintains the confidentiality of donors and thereby incentivises them to contribute clean money to political parties. In case the donor is a public company, they will have to declare the amount contributed in their books of account without disclosing the name of the political party. Similarly, the political parties will also have to disclose the total amount received through electoral bonds in their audited accounts filed before the Election Commission of India. This framework ensures a balance between clean money coming into the system as against the right to information of citizens. The state has a positive obligation to safeguard the privacy of its citizens, which necessarily includes the citizens’ right to political affiliation. The right of a buyer to purchase electoral bonds without having to disclose their preference of political party secures the buyer’s right to privacy. The Electoral Bond Scheme has been enacted in pursuance of a legitimate state interest – to shift from cash‑driven, unregulated and unaccounted cash‑based political donations to a regulated, digital and legal political donation framework. The provisions of the Electoral Bond Scheme have a specific object and purpose of curbing black money and protecting donor privacy: Clause 3(3) imposes a pre‑condition that only a registered political party which has secured at least one per cent of the votes polled in the last general election would be eligible to receive bonds. This provision ensures that ghost political parties are barred from seeking and receiving political funding. Clause 4 requires a buyer of electoral bonds to meet the requisite Know Your Customer norms. This ensures that only KYC‑compliant persons are entitled to buy electoral bonds. The limited validity period of fifteen days ensures that the bond is not used as a parallel currency. Clause 7(4) mandates the authorized bank to treat the information furnished by a buyer as confidential which shall not be disclosed to any authority, except when directed by a competent Supreme Court of India or upon registration of a criminal case by any law enforcement agency. This provision protects the privacy and personal details of the buyer vis‑à‑vis the state. Clause 11 mandates that all payments for the purchase of electoral bonds shall be accepted through banking channels. This provision curbs the circulation of black money. The right of a citizen to know how political parties are being funded must be balanced against the right of a person to maintain privacy of their political affiliations. Donating money to one’s preferred party is a form of political self‑expression, which lies at the heart of privacy. Maintaining anonymity of donations to political parties is a part of the concept of secret ballot because it enables a person to make political choices without any fear of victimisation or retaliation. The right to information only operates against information in the possession or in the knowledge of the state. It cannot operate for seeking information not in the knowledge or possession of the state. The amendments to the Reserve Bank of India Act, the Representation of People Act, and the Income Tax Act are intended to curb donations made by way of cash and other means to political parties and secure the anonymity of donors. The amendment to Section 182 of the Companies Act removes the limitation of seven and a half percent of the net profits on the amount contributed by political parties. The removal of the contribution limit was intended to disincentivise creation of shell companies. The Supreme Court of India has recognized that the legislature has a wide latitude in matters concerning economic policy. Further, the mere possibility that the law might be abused cannot be a ground for holding the provision procedurally or substantially unreasonable. The fact that one party receives substantially more support through donations than other parties cannot in itself be a legal ground to challenge the validity of the Electoral Bond Scheme., The Union of India submitted that the Supreme Court of India must exercise judicial restraint while deciding the challenge to the Electoral Bond Scheme and the statutory amendments because they relate to economic policy. For this purpose, the Union of India relied on a series of decisions where the Court has held that courts must follow judicial restraint in matters concerning economic and financial policy., It is a settled position of law that courts must adopt a less stringent form of judicial review while adjudicating challenges to legislation and executive action which relate to economic policy as compared to laws relating to civil rights such as the freedom of speech or the freedom of religion. More recently, in Swiss Ribbons v. Union of India, the Supreme Court of India while deciding a challenge to the constitutional validity of provisions of the Insolvency and Bankruptcy Code 2016 observed that the legislature must be given free play to experiment with economic policy. This position was also followed in Pioneer Urban Land and Infrastructure Limited v. Union of India, where amendments to the Insolvency and Bankruptcy Code were challenged., The question is whether the amendments under challenge relate to economic policy. While deciding on a constitutional challenge, the Court does not rely on the ipse dixit of the government that legislation is economic legislation. Courts, before classifying the policy underlying a legislation as economic policy, must undertake an analysis of the true nature of the law. The amendment to Section 31 of the Reserve Bank of India Act can be classified as a financial provision to the extent that it seeks to introduce a new form of a bearer banking instrument. However, any resemblance to an economic policy ends there. The amendments in question can be clubbed into two heads: first, provisions mandating non‑disclosure of information on electoral financing; and second, provisions permitting unlimited corporate funding to political parties. Both these amendments relate to the electoral process., In fact, it is evident from the correspondence between the Ministry of Finance and the Reserve Bank of India (which have been summarized above) on the apprehensions of the bonds being used as an alternative currency that the bonds were introduced only to curb black money in the electoral process and protect informational privacy of financial contributors to political parties. The Union of India has itself classified the amendments as an electoral reform. Thus, the submission of the Union of India that the amendments deal with economic policy cannot be accepted., The second argument that this Court needs to address is to determine the scope of judicial review to decide this batch of petitions.
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The petitioners submitted that the presumption of constitutionality does not apply since the scheme deals with the electoral process. The premise of the argument is that the presumption of constitutionality is based on the principle that the elected body must be trusted to make decisions and that principle should not be applied when the rules changing the electoral process are themselves in challenge. It was submitted that in such cases if a prima facie case of constitutional violation is made out, the State bears a heavy burden of justifying the law. The presumption of constitutionality is based on two premises. First, it is based on democratic accountability, that is, legislators are elected representatives who are aware of the needs of the citizens and are best placed to frame policies to resolve them. Second, legislators are privy to information necessary for policy making which the courts as an adjudicating authority are not. However, the policy underlying the legislation must not violate the freedoms and rights entrenched in Part III of the Constitution and other constitutional provisions. Previous judgments of the Supreme Court of India have held that the presumption of constitutionality is rebutted when a prima facie case of violation of a fundamental right is established. The onus then shifts to the State to prove that the violation of the fundamental right is justified. In Dharam Dutt v. Union of India, a two‑Judge Bench of the Supreme Court of India elucidated the principle that despite a general presumption in favour of constitutionality, when a prima facie case of violation of a right guaranteed by clause (1) of Article 19 is made out, the onus shifts to the State to show that the legislation falls within the permissible limits of the relevant clauses of Article 19 and that the restriction is reasonable. The Court expects the State to place before it sufficient material justifying the restriction and its reasonableness. If the State succeeds in bringing the restriction within the scope of any permissible restriction, such as sovereignty and integrity of India, public order, decency or morality, the onus of showing that the restriction is unreasonable shifts back to the petitioner. Where the restriction on its face appears unreasonable, no further proof is required. Thus the onus of proof in such cases is an ongoing shifting process to be consciously observed by the Supreme Court of India when deciding the constitutional validity of legislation by reference to Article 19 of the Constitution., The law does not bar electoral financing by the public. Both corporates and individuals are permitted to contribute to political parties. The legal regime has not prescribed a cap on the financial contributions that can be received by a political party or a candidate contesting elections. However, Section 77 of the Representation of People Act, 1951 read with Rule 90 of the Conduct of Election Rules, 1961 prescribes a cap on the total expenditure that can be incurred by a candidate or their agent in connection with Parliamentary and Assembly elections between the date of nomination and the date of declaration of the result. The maximum limit for expenditure in a Parliamentary constituency is between rupees seventy‑five lakh and ninety‑five lakh depending on the size of the State and the Union Territory. The maximum limit of election expenses in an Assembly constituency varies between rupees twenty‑eight lakh and forty lakh depending on the size of the State. The law does not prescribe any limits for the expenditure by a political party. Section 77, together with Section 169, provides that the Central Government, in consultation with the Election Commission of India, has the power to prescribe the amount over which the total expenditure incurred by the candidate or their agent shall not be exceeded. The total expenditure cap is amended from time to time., There is an underlying dichotomy in the legal regime. The law does not regulate contributions to candidates; it only regulates contributions to political parties, while expenditure by the candidates and not the political party is regulated. The underlying understanding is that finance is crucial for the sustenance and progression of electoral politics. It is believed that money does not vote but people do. Studies have revealed the direct and indirect influence of money on electoral politics. The primary way through which money directly influences politics is its impact on electoral outcomes. One way in which money influences electoral outcomes is through vote buying. Another way is through incurring electoral expenditure for political campaigns. Campaigns have a measurable influence on voting behaviour because of television advertisements, campaign events and personal canvassing. An informed voter is assumed to be aware of the policy positions of the candidate or the party they represent and votes after a thorough analysis of the pros and cons of electing a candidate. An uninformed voter is assumed not to possess knowledge of the policy positions of the candidates. Campaigns affect both informed and uninformed voters. For an informed voter, campaign activities supplement existing knowledge about policies and ideology. For an uninformed voter, campaigns play a more persuasive role by providing additional information about candidates., Political parties use innovative techniques of campaigning beyond traditional advertisements, door‑to‑door canvassing and processions to increase outreach. For example, parties sponsor religious festivals and community fairs, organize sporting matches and literary competitions where cash awards are given. These outreach techniques leave a lasting impression on uninformed voters. Enhanced campaign expenditure proportionately increases campaign outreach, which influences voting behaviour. Money also creates entry barriers to politics by limiting the kind of candidates and parties that can enter the electoral fray. Studies have shown that money influences the selection of candidates because parties prefer candidates who can substantially self‑finance their campaigns without relying on the party for finance. Consequently, candidates from socio‑economically weaker sections face added barriers. Money also excludes new parties, particularly those representing marginalized communities. Parties lacking sufficient finance often have to form electoral coalitions with established parties, which shoulder a lion’s share of campaign expenditure, including costs related to coalition propaganda, print and digital advertising, vehicle and equipment hire, rallies, food transportation and daily expenditure for party cadres. Such compromises dilute the ideology of the newer party in exchange for political sustenance, thereby reducing the democratic space for participation for both candidates and newer and smaller parties., The judgments of the Supreme Court of India have recognized the influence of money on politics. In Kanwar Lal Gupta v. Amar Nath Chawla, the Court noted that money serves as an asset for advertising and other forms of political solicitation that increase a candidate’s exposure to the public. The Court observed that the availability of large funds gives a candidate or political party a significantly greater opportunity for propagation of its programme compared to rivals, resulting in discrimination based on money power and denying some voters an equal voice and some candidates an equal chance. In Vatal Nagaraj v. R. Dayanand Sagar, Justice V. R. Krishna Iyer noted that candidates often evade the legal ceiling on expenditure by using large sums channeled by political parties, describing large monetary inputs as a necessary evil of modern elections. In P. Nalla Thampy Terah v. Union of India, a Constitution Bench of the Supreme Court of India upheld the constitutional validity of Explanation 1 to Section 77 of the Representation of People Act, 1951, which allowed unlimited channelling of funds by political parties for the election of their candidates, while noting that the petitioners were justified in criticizing the statute for diluting the principle of free and fair elections. In Common Cause (A Registered Society) v. Union of India, the Court dwelt on the ostentatious use of money by political parties in elections, describing the General Elections as an enormous exercise involving expenditure of more than one thousand crore rupees, with no accountability for the source of the money, and held that such naked display of black money cannot be permitted in a democracy where the rule of law prevails., The challenge to the statutory amendments and the Electoral Bond Scheme cannot be adjudicated in isolation without reference to the actual impact of money on electoral politics. The Supreme Court of India has repeatedly held that the effect, not merely the object, of a law on fundamental rights and other constitutional provisions must be determined while adjudicating its constitutional validity. The effect of provisions dealing with electoral finance cannot be determined without recognizing the influence of money on politics. Therefore, the nexus between money and electoral democracy must be borne in mind while deciding the issues before this batch of petitions., Section 29C of the Representation of People Act, 1951 as amended by the Finance Act, 2017 stipulates that a political party need not disclose financial contributions received through electoral bonds. Similarly, Section 13A of the Information Technology Act, as amended, does not require a political party to maintain a record of contributions received through electoral bonds. Section 182 of the Companies Act, 2013 as amended by the Finance Act, 2017 deleted the earlier requirement of disclosure of particulars of the amount contributed by companies to political parties in their profit and loss accounts. A company that makes financial contributions is now required only to disclose the total amount contributed to political parties without specifying the particular party. Maintaining the anonymity of the contributor is a crucial characteristic of the Electoral Bond Scheme. An electoral bond is defined as a bearer banking instrument that does not carry the name of the buyer. The law mandates the authorized bank not to disclose the information furnished by the buyer except when demanded by a competent court or upon registration of a criminal case by law‑enforcement agencies., The amendments introduced by the Finance Act, 2017 and the Electoral Bond Scheme are challenged on the ground that the non‑disclosure of information about electoral contributions violates the right to information of the voter, which is traceable to Article 19(1)(a) of the Constitution. Article 19(1)(a) has been held to guarantee the right to information to citizens. In the first phase of jurisprudence, the Supreme Court of India traced the right to information to the values of good governance, transparency and accountability, recognizing that citizens must possess information about State action to hold the State accountable. The Court observed that evidence relevant and material to proceedings need not be disclosed if disclosure would violate public interest, as provided in Section 124 of the Indian Evidence Act, 1872. The Court framed the issue of disclosure as a conflict between public interest and private interest, and later as a conflict between two conceptions of public interest, emphasizing that disclosure serves both the parties to the proceedings and the public interest in the administration of justice., In State of Uttar Pradesh v. Raj Narain, the respondent sought to summon documents in an election petition and the State claimed privilege from disclosure. Justice K. K. Mathew, in his concurring opinion, observed that there is a public interest in the impartial administration of justice which can only be secured by disclosure of relevant and material documents, tracing the right to information to Article 19(1)(a). In SP Gupta v. Union of India, the Union of India claimed immunity against disclosure of correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India on the reappointment of additional judges. Justice P. N. Bhagwati observed that the Constitution guarantees the right to know, which is necessary to secure true facts about the administration of the country, and that democratic governance requires continuous citizen participation and accountability., The second phase of the evolution of jurisprudence on the right to information recognised that information is essential for citizens to form views on social, cultural and political issues and to participate in democratic discourse. The Court held that freedom of speech and expression includes the right to acquire information that enables people to debate on various issues, thereby fostering representative democracy and curbing misinformation. Thus, the right to information is not merely a means to hold the government accountable but also an end in itself, facilitating self‑development and participatory democracy., In Union of India v. Association for Democratic Reforms (ADR), the Supreme Court of India traced the right of voters to have information about the antecedents, including the criminal past, of candidates contesting elections to Article 19(1)(a). The Court directed the Election Commission of India to secure information relating to (a) details of criminal cases against a candidate, (b) assets of the candidate, spouse and dependents, (c) facts bearing on the candidate’s competence, capacity and suitability, and (d) any other information necessary for judging the candidate’s capacity. The Court held that voters have a right to be sufficiently informed to exercise their democratic will intelligently, and that such information is necessary for free and fair elections. Consequently, Parliament amended the Representation of People Act, 1951 by inserting Section 33‑B, which stipulates that a candidate need not disclose any information other than that required by law, notwithstanding any judgment., In PUCL v. Union of India, proceedings were initiated under Article 32 of the Constitution challenging Section 33‑B of the Representation of People Act, 1951. The challenge contended that the provision unduly restricts the disclosure of information required for voters to make an informed choice.
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Justice M B Shah, writing for the majority, noted that the decision of the three‑Judge Bench in Association for Democratic Reforms (supra) tracing the right to know the antecedents of candidates contesting elections had attained finality and Section 33‑B was unconstitutional because it had the effect of rendering the judgment of the Supreme Court of India inoperative. The learned judge, on an independent interpretation, also held that the right to information of a voter is a facet of Article 19(1)(a)., Paragraph 64(4): To maintain the purity of elections and in particular to bring transparency in the process of election, the Election Commission of India can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re‑election. In a democracy, the electoral process has a strategic role. The little man of this country would have a basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted., Section 33‑A of the Representation of the People Act required the candidate to furnish the following information: (a) He is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; and (b) He has been convicted of an offence other than any offence referred to in sub‑section (1) or sub‑section (2), or covered in sub‑section (3), of Section 8 and sentenced to imprisonment for one year or more., Justice Venkatarama Reddi observed in his concurring opinion that there are two postulates which govern the right to vote: first, the formulation of an opinion about candidates, and second, the expression of choice based on the opinion formulated by casting votes in favour of a preferred candidate. A voter must possess relevant and essential information that would enable them to evaluate a candidate and form an opinion for the purpose of casting votes. The learned judge observed that the Constitution recognises the right of a voter to know the antecedents of a candidate though the right to vote is a statutory right because the action of voting is a form of expression protected by Article 19(1)(a). Though the initial right cannot be placed on the pedestal of a fundamental right, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of a vote in favour of one or the other candidate amounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted., In the context of the decision of the Supreme Court of India in Association for Democratic Reforms (supra), the learned judge observed that the Court issued specific directions for the disclosure of certain information about candidates because of a legislative vacuum, and that the directions issued to the Election Commission of India will fill the vacuum until Parliament legislates on the subject. Thus, the five directions which were issued by the Supreme Court of India in Association for Democratic Reforms (supra) were not construed to be inflexible and immutable theorems. The learned judge observed that though voters have a fundamental right to know the antecedents of candidates, all the conceptions of this right formulated by the Supreme Court of India in Association for Democratic Reforms (supra) cannot be elevated to the realm of fundamental rights., The majority was of the view that voters have a fundamental right to all the information which was directed to be declared by the Supreme Court of India in Association for Democratic Reforms (supra). Justice Venkatarama Reddi disagreed. In the opinion of the learned judge, only certain information directed to be disclosed in Association for Democratic Reforms (supra) is crucial and essential to the right to information of the voter. In my view, the points of disclosure spelt out by the Supreme Court of India in Association for Democratic Reforms case should serve as broad indicators or parameters in enacting the legislation for the purpose of securing the right to information about the candidate. The paradigms set by the Court, though pro tempore in nature as clarified supra, are entitled to due weight. If the legislature, in utter disregard of the indicators enunciated by the Court, proceeds to make legislation providing only a semblance or pittance of information or omits disclosure on certain essential points, the law would then fail to pass the muster of Article 19(1)(a). Though a certain amount of deviation from the aspects of disclosure spelt out by the Court is not impermissible, a substantial departure cannot be countenanced. The legislative provision should be such as to promote the right to information to a reasonable extent, if not to the fullest extent, on details of concern to the voters and citizens at large. While enacting the legislation, the legislature has to ensure that the fundamental right to know about the candidate is reasonably secured and information which is crucial, by any objective standards, is not denied. The Court has to take a holistic view and adopt a balanced approach, keeping in view the twin principles that the citizens' right to information to know about the personal details of a candidate is not an unlimited right and that, at any rate, it has no fixed concept and the legislature has freedom to choose between two reasonable alternatives. But, I reiterate that the shape of the legislation need not be solely controlled by the directives issued to the Election Commission of India to meet an ad hoc situation. As I said earlier, the right to information cannot be placed in a straitjacket formulae and the perceptions regarding the extent and amplitude of this right are bound to vary., Justice Reddi held that Section 33‑B was unconstitutional because Parliament cannot impose a blanket ban on the disclosure of information other than the disclosure of information required by the provisions of the Representation of the People Act. The scope of the fundamental right to information may be expanded in the future to respond to future exigencies and necessities. The provision had the effect of emasculating the freedom of speech and expression of which the right to information is a facet; and the provision failed to give effect to an essential aspect of the fundamental right, namely the disclosure of assets and liabilities of the candidates., Justice Reddi then proceeded to juxtapose the directions for disclosure issued by the Supreme Court of India in Association for Democratic Reforms (supra) with the scope of the provisions of the Representation of the People Act mandating disclosure. The learned judge observed that the extent of disclosure mandated in the Representation of the People Act is fairly adequate with respect to past criminal records but not with regard to pending cases. With respect to assets and liabilities, the learned judge observed that the disclosure of assets and liabilities is essential to the right to information of the voter because it would enable voters to form an opinion about whether the candidate, upon being elected in the past, had amassed wealth in their name or their family. Additionally, information about dues which are payable by the candidate to public institutions would enable voters to know the candidate's dealing with public money in the past., Justice Reddi observed that the requirement to disclose assets of the candidate's family was justified because of the prevalence of benami transactions. Though mandating the disclosure of assets and liabilities would infringe the right to privacy of the candidate and their family, the learned judge observed that disclosure which is in furtherance of the right to information would trump the former because it serves the larger public interest. Justice Reddi then observed that disclosure of the educational qualifications of a candidate is not an essential component of the right to information because educational qualifications do not serve any purpose for the voter to decide which candidate to cast a vote for, since the characteristics of duty and concern of the people is not monopolised by the educated. A conclusion to the contrary, in the learned judge's opinion, would overlook the stark realities of the society., The following principles can be deduced from the decisions of the Supreme Court of India in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra): (a) The right to information of voters, which is traced to Article 19(1)(a), is built upon the jurisprudence of both the first and the second phases in the evolution of the doctrine. The common thread of reasoning which runs through both phases is that information which furthers democratic participation must be provided to citizens. Voters have a right to information which would enable them to cast their votes rationally and intelligently because voting is one of the foremost forms of democratic participation; (b) In Association for Democratic Reforms (supra), the Supreme Court of India observed that while the disclosure of information may violate the right to privacy of candidates and their families, such information must be disclosed because it furthers public interest. The opinion of Justice Venkatarama Reddi in People's Union for Civil Liberties (supra) also followed the same line of reasoning. Justice M B Shah, writing for himself and Justice D M Dharmadhikari, held that the right to privacy would not be infringed because information about whether a candidate is involved in a criminal case is a matter of public record. Similarly, the assets or income are normally required to be disclosed under the provisions of the Income Tax Act; (c) The voters have a right to the disclosure of information which is essential for choosing the candidate for whom a vote should be cast. In Association for Democratic Reforms (supra), the Supreme Court of India notes that such information would enable voters to determine if the candidate is corrupt and would further openness in democracy., While relying on the judgments of the Supreme Court of India in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra), the petitioners argue that non‑disclosure of information on the funding of political parties is violative of the right to information under Article 19(1)(a). This Court needs to consider the following two issues to answer the question: (a) Whether the requirements of disclosure of information about candidates can be extended to political parties; and (b) If the answer to (a) is affirmative, whether information on the funding of political parties is essential for exercising choice on voting. The focal point of the electoral process: candidate or political party., The decisions in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra) recognise the right to information of a voter about candidates, which enables them to cast their vote in an effective manner. The relief which was granted by the Supreme Court of India in People's Union for Civil Liberties (supra) and Association for Democratic Reforms (supra) was restricted to the disclosure of information about candidates contesting the election because of the limited nature of the reliefs sought. The ratio decidendi of the two judgments of the Supreme Court of India is that voters have a right to receive information which is essential for them to cast their votes. This Court has to first analyse if the political party is a relevant political unit in the electoral process to answer the question whether funding details of political parties are essential information for the voter to possess., The Constitution of India did not make a reference to political parties when it was adopted. A reference was made when the Tenth Schedule was included in the Constitution by the Constitution (Fifty‑Second) Amendment Act, 1985. However, even though the Constitution on its adoption did not make a reference to political parties, statutory provisions relating to elections accorded considerable importance to political parties, signifying that political parties have been the focal point of elections., The Election Commission of India notified the Election Symbols (Reservation and Allotment) Order, 1968, in exercise of the powers conferred by Article 344 of the Constitution read with Section 29A of the Representation of the People Act and Rules 59 and 109 of the Conduct of Election Rules, 1961. In terms of the provisions of the Symbols Order, the Election Commission of India shall allot a symbol to every candidate contesting the election. The Symbols Order classifies political parties into recognised political parties and unrecognised political parties. The difference in the procedure under the Symbols Order for allotting symbols to recognised political parties, registered but unrecognised political parties and independent candidates indicates both the relevance and significance of political parties in elections in India., A party is classified as a National or a State recognised party based on the total percentage of votes secured at the last general elections and/or the number of candidates who have been returned to the Legislative Assembly. Symbols are reserved for allocation to recognised political parties. All candidates who are being set up by a national or a State recognised party are to be allotted the symbol reserved for that party for the purpose of contesting elections., Symbols other than those reserved for recognised political parties shall be available for allotment to independent candidates and candidates set up by political parties which are not recognised political parties in terms of the Symbols Order. Candidates set up by a registered but unrecognised political party may also be allotted a common symbol if they fulfil certain conditions laid down in the Symbols Order., Thus, the Symbols Order creates a demarcation between candidates set up by political parties and candidates contesting individually. Political parties are allotted a symbol such that all candidates who are set up by that political party are allotted the symbol of their political party while contesting elections. Even within candidates who are set up by political parties, the Symbols Order creates a distinction between unrecognised but registered political parties and recognised political parties. Recognised political parties shall continue to be allotted the same symbol for all General elections until the time these political parties fulfil the conditions for recognition under the Symbols Order., For unrecognised but registered political parties, though a common symbol is allotted for all candidates being set up by the political parties, the symbol is not reserved for the party. The Election Commission of India could allot different symbols to that political party in each General election. The candidates of a registered but unrecognised political party may be represented by a common symbol but the people would not attach a specific symbol to the political party because the symbol by which it is represented may change with every election., The purpose of allotting symbols to political parties is to aid voters in identifying and remembering the political party. The law recognises the inextricable link between a political party and the candidate though the vote is cast for a candidate. The literacy rate in India was 18.33 percent when the first General Election was held in 1951. Most of the voters identified a political party only with its symbol and this still continues to the day. In a few cases, the voters would not possess any knowledge of the candidate being set up by the political party. They would vote solely based on the symbol which is allotted to the political party; knowledge of which they have obtained through campaigning activities or its sustained presence in the electoral fray., Symbols also gain significance when the names of political parties sound similar. For example, political parties by the names of Dravida Munnetra Kazhagam, All India Anna Dravida Munnetra Kazhagam, Dravida Kazhagam, Desiya Murpokku Dravida Kazhagam, Makkal Desiya Murpokku Dravida Kazhagam, Kongu Desa Makkal Katchi, Kongunadu Makkal Desia Katchi, and Kongunadu Makkal Katchi contest elections in Tamil Nadu. The names of all the political parties bear similarities due to the usage of the same words with certain additions or deletions. The allocation of symbols to political parties would help voters identify and distinguish between political parties which have similar sounding names. It is precisely because of the close association of the symbol with the political party by voters that both factions of the party vie for the symbol that is allotted to the party when there is a split in a recognised political party., India follows the open‑list first past the post form of election in which votes are cast for a candidate and the candidate who secures the highest number of votes is chosen to represent the people of that constituency. It could be argued that this system of elections gives prominence to candidates and not political parties unlike the system of closed list elections where the voters do not have any knowledge of the candidates that are set up by the political party., However, it cannot be concluded that the decision of voting is solely based on the individual candidate's capabilities and not the political party merely because the voter has knowledge of the candidate who has been set up by the political party. Such a conclusion cannot be definitively drawn particularly in view of the design of the electronic voting machine which has a list of the names of the candidates who are contesting the election from the constituency along with the symbol of the political party which is fielding the candidate. Voters cast their votes based on two considerations: the capability of the candidate as a representative and the ideology of the political party., Political parties publish electoral manifestos containing the ideology of the party, major policies of the political party, plans, programmes and other considerations of governance which would be implemented if they came to power. While political manifestos do not necessarily always translate to policies when the party is elected to power, they throw light upon the integral nature of political parties in the electoral system. By publishing an election manifesto, a political party communicates to the voters that they must accord preference to the political party. Party manifestos prod voters to look away from a candidate‑centric and towards a party‑centric perception of elections., Lastly, the prominence of political parties as electoral units is further heightened by the form of government in India. India follows a Westminster system of government which confers prominence to political parties without strictly separating between the legislature and the executive. The time‑honoured convention of the cabinet form of government is that the leader of the political party with absolute majority must be called to form the government. The Council of Ministers is appointed by the President on the aid and advice of the Prime Minister. Political parties are intrinsic to this form of government because of the very process of government formation. The discretion by the Governor when no single political party commands an absolute majority, which has been given judicial recognition in Rameshwar Prasad v. Union of India, also prioritises political parties making them central to the governance structure., The centrality of political parties in the electoral system is further accentuated by the inclusion of the Tenth Schedule. The Tenth Schedule deals with disqualification on the ground of defection from the political party which set up the elected individual as its candidate. Paragraph 2 provides the following grounds of defection: (a) voluntarily giving up membership of the political party; and (b) voting or abstaining from voting in the House contrary to direction issued by the political party without obtaining prior permission from the political party and when such voting has not been condoned by the political party., The underlying principle of the anti‑defection law, which has been recognised by a seven‑Judge Bench of the Supreme Court of India in Kihoto Hollohon v. Zachillhu, is that a candidate set up by a political party is elected on the basis of the programme of that political party. In the course of years, while deciding disputes related to the Tenth Schedule, judgments of the Supreme Court of India have further strengthened the centrality of political parties in the electoral system. In Ravi S Naik v. Union of India, the Court observed that voluntarily giving up membership of a political party has a wider connotation and includes not just resignation of the member from the party and an inference can also be drawn from the conduct of the member. In Subash Desai v. Principal Secretary, Governor of Maharashtra, a Constitution Bench of the Supreme Court of India while interpreting the provisions of the Tenth Schedule held that the political party and not the legislature party (which consists of the members of the House belonging to a particular political party) appoints the whip of a political party for the purposes of Paragraph 2(1)(b) of the Tenth Schedule., In sum, a political party is a relevant political unit in the democratic electoral process in India for the following three reasons: (a) Voters associate voting with political parties because of the centrality of symbols in the electoral process; (b) The form of government where the executive is chosen from the legislature based on the political party or coalition of political parties which has secured the majority; and (c) The prominence accorded to political parties by the Tenth Schedule of the Constitution., In Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra), the Supreme Court of India held that a voter has a right to information which is essential for them to exercise their freedom to vote. In the previous section, we have concluded that political parties are a relevant political unit. Thus, the observations of the Supreme Court of India in People's Union for Civil Liberties (supra) and Association for Democratic Reforms (supra) on the right to information about a candidate contesting elections is also applicable to political parties. The issue whether information about the funding received by political parties is essential for an informed voter must be answered in the context of the core tenets of electoral democracy. The Preamble to the Constitution resolves to constitute a social, economic, and politically just society where there is equality of status and opportunity. The discourse which has emanated within and outside the Courts is often restricted to the ideals of social and economic justice and rarely includes political inequality., Electoral democracy in India is premised on the principle of political equality which the Constitution guarantees in two ways. First, by guaranteeing the principle of one person one vote which assures equal representation in voting. The Constitution prescribes two conditions with respect to elections to seats in Parliament which guarantee the principle of one person one vote with respect to every voter and amongst every State: (a) each State shall be divided into territorial constituencies in such a manner that the ratio between the population of each constituency and the number of seats allotted to it shall be the same throughout the State; and (b) ...
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The total number of seats allotted to each State in Parliament should be such that the ratio between the number of seats and the population of the State is the same for all States. Second, the Constitution ensures that socio‑economic inequality does not perpetuate political inequality by mandating reservation of seats for Scheduled Castes and Scheduled Tribes in Parliament and State Assemblies. The Constitution guarantees political equality by focusing on the elector and the elected. These two constitutional precepts foster political equality in the following two ways. First, the Constitution mandates that the value of each vote is equal. This guarantee ensures formal political equality where every person's vote is accorded equal weightage. Second, the Constitution ensures that members of socially marginalized groups are not excluded from the political process. This guarantee ensures equality in representation and equality in influence over political decisions. However, political inequality continues to persist in spite of the constitutional guarantees. One of the factors which contributes to the inequality is the difference in the ability of persons to influence political decisions because of economic inequality., Money and politics are closely associated. The influence of money over electoral outcomes is not limited to elections; it also spills over to governmental decisions. In India the legal regime does not distinguish between campaign funding and electoral funding. Money donated to political parties is used for purposes beyond electoral campaigns, such as building party offices and paying party workers, and contributions can be made throughout the year for reasons other than election campaigning. This nexus between economic inequality and political inequality, together with the regulatory framework for party financing, makes information on political financing essential for an informed voter., Economic inequality leads to differing levels of political engagement because of the deep association between money and politics. Political contributions give a seat at the table to the contributor, enhancing access to legislators and influencing policy‑making. An economically affluent person can make larger financial contributions to political parties, creating a legitimate possibility of quid pro quo arrangements, such as policy changes or licences being granted to the contributor. Contributions are not limited to the campaign period; they can be made after a party or coalition forms government, increasing the likelihood of quid pro quo. Information about political funding would enable voters to assess any correlation between policy making and financial contributions., For donor contribution information to be relevant and essential, voters should not have to actively search for lists of contributors. Electronic and print media can present information on contributions received by political parties and the probable link between contributions and licences granted to companies in an accessible format. The response of the Government and political parties to such information would greatly inform the voter., To establish quid pro quo arrangements, the political party must have knowledge of the particulars of funding. The Scheme defines an electoral bond as a bearer banking instrument issued in the nature of a promissory note that does not carry the name of the buyer or payee. The Scheme also stipulates that information furnished by the buyer shall be treated as confidential and shall not be disclosed by any authority except when demanded by a competent court or a law enforcement agency upon registration of a criminal case., The Union of India submits that the political party receiving the contribution does not know the identity of the contributor because the bond bears no name and the bank cannot disclose such details. This submission is rejected. While the law prescribes anonymity as a central characteristic of electoral bonds, de jure anonymity does not translate to de facto anonymity. The Scheme is not fool‑proof; gaps enable parties to learn the particulars of contributions. Clause 12 of the Scheme allows the bond to be encashed only by the political party depositing it in a designated bank account. The contributor may hand over the bond to an office bearer, send it with the contributor’s name, or disclose details after deposit. Moreover, ninety‑four percent of contributions through electoral bonds are in the denomination of one crore, providing economically resourced contributors selective anonymity vis‑vis the public but not the political party., In view of the above discussion, the information about funding to a political party is essential for a voter to exercise the freedom to vote effectively. The Electoral Bond Scheme and the impugned provisions, to the extent that they infringe upon the right to information of the voter by anonymising contributions, are violative of Article 19(1)(a) of the Constitution of India., The next issue for analysis is whether the violation of the right to information is justified. The Supreme Court of India has laid down the proportionality standard to determine if a restriction of a fundamental right is justified. The standard comprises four stages: (a) the measure restricting a right must have a legitimate goal; (b) the measure must be a suitable means for furthering the goal; (c) the measure must be the least restrictive and equally effective means; and (d) the measure must not have a disproportionate impact on the right holder., The legitimate‑goal stage requires the Supreme Court of India to analyse whether the objective of the law is a legitimate purpose for the infringement of rights. The State must first demonstrate that the objective is legitimate and then establish that the law is indeed in furtherance of that legitimate aim., The then Finance Minister, Mr Arun Jaitley, encapsulated the objective of introducing the Electoral Bond Scheme as follows: (a) an attempt was previously made to incentivise donations to political parties through banking channels, granting tax exemption if accounts of contributions were maintained and returns filed, but the situation only marginally improved; political parties continued to receive funds from anonymous sources; and (b) donors were reluctant to donate through banking channels because disclosure of donor identity would entail adverse consequences., Mr Jaitley stated that the main purpose of the Scheme is to curb black money in electoral financing and that this purpose could be achieved only if information about political donations is kept confidential, i.e., donor privacy is a means to incentivise contributions through the banking channel. In contrast, Mr Tushar Mehta argued that protecting donor privacy is an end in itself. The analysis must now determine whether the infringement of the right to information of voters is justified in relation to (a) curbing black money and (b) protecting donor privacy., The petitioners argue that the infringement of the right to information, which is traceable to Article 19(1)(a), can be justified only if the purpose of the restriction is traceable to the grounds stipulated in Article 19(2). They contend that the purpose of curbing black money cannot be traced to any of those grounds and therefore is not a legitimate purpose for restricting the right to information., Article 19(2) stipulates that the right to freedom of speech and expression can be restricted only on the grounds of (a) sovereignty and integrity of India; (b) security of the State; (c) friendly relations with foreign states; (d) public order; (e) decency or morality; (f) contempt of court; (g) defamation; and (h) incitement to an offence. The purpose of curbing black money is traceable to public interest, which is not one of the grounds listed in Article 19(2). Of the rights recognised under Article 19, only Article 19(1)(g) – the freedom to practice any profession or to carry on any occupation, trade or business – can be restricted on the ground of public interest., In Sakal Papers v. Union of India, the constitutional validity of the Newspaper (Price and Page) Act, 1965 and the Daily Newspaper (Price and Page) Order, 1960 was challenged on the ground that it violated the freedom of the press under Article 19(1)(a). The Union of India argued that the restriction was justified because the purpose of the law was to prevent unfair competition, a matter falling within the freedom to carry on a profession, which can be restricted on the ground of public interest under Article 19(6). The Supreme Court of India observed that the impugned legislation directly curtails the freedom of speech guaranteed under Article 19(1)(a) and that such a restriction cannot be justified on any ground other than those stipulated in Article 19(2). Similar reasoning was adopted in Express Newspapers v. Union of India and Kaushal Kishor v. State of Uttar Pradesh, where the Court affirmed that restrictions on Article 19(1)(a) must fall squarely within the provisions of Article 19(2)., However, in the specific context of the right to information, the Supreme Court of India has observed that the right can be restricted on grounds not traceable to Article 19(2). In PUCL v. Union of India, Justice Reddi, in his concurring opinion, noted that the right under Article 19(1)(a) can be restricted on grounds that are not strictly within the confines of Article 19(2) when necessary for national or societal interest. Justice Reddi referred to Justice Jeevan Reddy’s observations in The Secretary, Ministry of Information v. Cricket Association of Bengal, where it was held that freedom of speech and expression cannot be exercised so as to endanger the interest of the nation or society, even if the expression of national or public interest is not expressly mentioned in Article 19(2)., In Cricket Association of Bengal, the petitioner argued that the right to broadcast could be restricted on grounds other than those listed in Article 19(2). Justice P B Sawant, writing for himself and Justice S Mohan, reiterated that Article 19(1)(a) can only be restricted on the grounds mentioned in Article 19(2) and rejected the argument that other grounds could be read into the provision. The Court clarified that the case dealt with the use of a public good (airwaves) for dissemination of information, and that the restriction was justified on the basis of public interest as a facet of the grounds enumerated in Article 19(2). The observations in that case cannot be interpreted to mean that additional implied grounds have been read into Article 19(2)., From the above discussion, it is clear that the right to information under Article 19(1)(a) can be restricted only on the grounds stipulated in Article 19(2). While it could be argued that curbing black money falls under the ground of public order, the Supreme Court of India has interpreted \public order\ to mean public safety and tranquility, not economic offences such as black money. Consequently, the purpose of curbing black money is not traceable to any of the grounds in Article 19(2)., Assuming, for the sake of argument, that curbing black money is a legitimate purpose, the second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. The Court must determine whether the chosen means would increase the likelihood of curbing black money. It is not necessary that the means be the only means capable of achieving the purpose; it is sufficient that they constitute one of the methods that can realise the objective, even if only partially., The respondents submit that before the introduction of the Electoral Bond Scheme, a major portion of contributions to political parties came from unknown sources. In the financial year 2016‑17, when the Scheme was introduced, eighty‑one percent of contributions (Rs 580.52 crore) were received as voluntary contributions, which were unregulated and allowed circulation of black money. After the Scheme’s introduction, forty‑seven percent of contributions were received through electoral bonds, which are regulated. The Union of India argues that anonymity incentivises contributors to use the banking channel, and that non‑disclosure of political expenditure has a rational nexus with the goal of curbing black money., The least‑restrictive‑means stage requires the Supreme Court of India to determine whether anonymity of the contributor is the least restrictive way to achieve the objective. The analysis considers (a) whether other possible means exist; (b) whether those alternatives would achieve the objective in a real and substantial manner; (c) the differential impact on fundamental rights; and (d) an overall comparison of the measure and alternatives. After the Finance Act 2017, donations exceeding Rs 2,000 must be made by account‑payee cheque, bank draft, electronic clearing system, or electoral bond. Cash contributions below Rs 2,000 are permitted, but cash donations are not automatically black money. The legal regime already provides alternatives—cheques, bank drafts, electronic transfers—that can curb black money. The Union of India contends that these alternatives are less effective because many contributors prefer cash due to fear of repercussions., Another alternative provided by the legal regime is the establishment of Electoral Trusts under the Information Technology Act. Section 2(22AA) defines an Electoral Trust as a trust approved by the Board in accordance with a scheme made by the Central Government. Section 13B states that voluntary contributions received by an Electoral Trust are excluded from its total income if it distributes ninety‑five percent of the aggregate donations received during the previous year. Rule 17CA of the IT Rules, 1962, specifies that an Electoral Trust may receive contributions only from Indian citizens, Indian companies, firms, Hindu undivided families, or associations of persons residing in India, and that each contribution must be recorded with the contributor’s name, address, PAN or passport number, amount, mode of contribution, and bank details. Contributions to an Electoral Trust must be made through cheque, bank draft, or electronic transfer; cash is not accepted. The Trust must spend five percent of total contributions in the first year (subject to a limit of Rs 500,000) and three percent in the second year, with the remaining ninety‑five percent distributed to political parties registered under Section 29A of the Representation of the People Act. The political party receiving the trust’s donation must issue a receipt indicating its name, PAN, and the amount received. The Trust must maintain a list of contributors and recipients and furnish a certified copy of these lists along with an audit report to the Commissioner of Income Tax., In summary, an Electoral Trust is formed solely for collecting political contributions from donors and can contribute to multiple parties. While the Trust discloses the total amount contributed to each party, it does not disclose which individual donor contributed to which party, thereby preserving donor anonymity while still curbing black money in electoral financing. Contributors avoid fear of retaliation because the information linking donors to specific parties is not disclosed., On 6 June 2014, the Election Commission of India circulated Guidelines for submission of contribution reports of Electoral Trusts, mandating that all Electoral Trusts submit an annual report containing details of contributions received and disbursed to political parties in the interest of transparency. Pursuant to the Guidelines, Electoral Trusts submit annual reports to the Election Commission of India each year.
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For example, according to the Annual Report of the Prudent Electoral Trust for the financial year 2021-22, the Trust received contributions of a total of Rupees 4,64,83,00,116 from seventy contributors including individuals and companies. The contributions were unequally distributed to the Aam Aadmi Party, All India Congress Committee, Bharatiya Janata Party, Goa Congress Committee, Goa Forward Party, Indian National Congress, Punjab Lok Congress, Samajwadi Party, Shiromani Akali Dal, Telangana Rashtra Samiti, and YSR Congress. From the report, it cannot be discerned if contributor A contributed to a particular political party. It can only be concluded that contributor A could have contributed to the Party. Thus, even if the argument of the Union of India that the other alternative means such as the other modes of electronic transfer do not realize the objective of curbing black money substantially because contributors would resort to cash donations due to the fear of consequences is accepted, Electoral Trusts are an effective alternative. There will be a lesser degree of political consequences for contributions made to the Electoral Trust because the information about which of the contributors contributed to which of the parties will not be disclosed. It is only where the Electoral Trust contributes to one political party, would there be a possibility of political consequences and witch‑hunting (assuming that there is a link between anonymity and contributions). However, in that case, it is a choice expressly made by the contributors. Additionally, the law mandates disclosure only of contributions made above twenty thousand rupees in a financial year. So, for contributions less than twenty‑five thousand rupees, cheques and other modes of electronic transfer are an effective alternative., When these three methods of political contribution (electronic transfer other than electoral bonds, contribution to Electoral Trust, and Electoral Bonds) are placed on a continuum, transfer through electronic means (other than electoral bonds) would be placed on one end and Electoral Bonds would be placed on the other end. A voter would receive complete information about contributions made above twenty thousand rupees to a political party in the case of electronic transfer made directly to a political party other than through electoral bonds., With respect to contributions through electoral bonds, the voter would not receive any information about financial contributions in terms of Section 29C of the Representation of the People Act as amended by the Finance Act. This Supreme Court of India in the interim order dated 31 October 2023 in the specific context of contributions made by companies through electoral bonds prima facie observed the voter would be able to secure information about the funding by matching the information of the aggregate sum contributed by the company (as required to be disclosed under Section 182(3) of the Companies Act as amended by the Finance Act) with the information disclosed by the political party. However, on a detailed analysis of the Scheme and the amendments we are of the opinion that such an exercise would not reveal the particulars of the donations because the company under the provisions of Section 182 and the political party are only required to disclose the consolidated amount contributed and received through Electoral Bonds respectively. The particulars about the political party to which the contributions were made, which is crucial to the right to information of political funding, cannot be identified through the matching exercise., With respect to contributions to an Electoral Trust, a voter receives partial information. The voter would know the total amount contributed by the donor and that the donor contributed to one of the political parties (in case the Electoral Trust has made contributions to multiple parties). But the donor would not be aware of the exact details of the contribution., Assuming that anonymity incentivizes contributions through banking channels (which would lead to curbing black money in the electoral process), electoral bonds would be the most effective means in curbing black money, followed by Electoral Trust, and then other means of electronic transfer. This conclusion is premised on the belief that the Electoral Bond curbs black money. However, the Scheme is not foolproof. The Electoral Bond Scheme does not provide any regulatory check to prevent the trading of bonds though Clause 14 of the Electoral Bond Scheme states that the bonds shall not be eligible for trading., On an overall balance of the impact of the alternative means on the right to information and its ability to fulfill the purpose, for contributions below twenty thousand rupees, contributions through other means of electronic transfer is the least restrictive means. For contributions above twenty thousand rupees, contributions through Electoral Trust is the least restrictive means. Having concluded that the Electoral Bond Scheme is not the least restrictive means to achieve the purpose of curbing black money in the electoral process, there is no necessity of applying the balancing prong of the proportionality standard., Based on the above discussion, we conclude that the Electoral Bond Scheme does not fulfill the least restrictive means test. The Electoral Bond Scheme is not the only means for curbing black money in Electoral Finance. There are other alternatives which substantially fulfill the purpose and impact the right to information minimally when compared to the impact of electoral bonds on the right to information., Donor Privacy. The Union of India submitted that information about financial contributions to political parties is not disclosed to protect the contributors' informational privacy to political affiliation. There are two limbs to the argument of the Union of India with respect to the purpose of donor privacy. First, that the State interest in introducing the Electoral Bond Scheme which guarantees confidentiality (or anonymity) to financial contributions is that it furthers donor privacy; and second, this State interest facilitates a guaranteed fundamental right. Thus, the submission of the State is that the right to information can be restricted even if donor privacy is not traceable to the grounds in Article 19(2) because privacy is a fundamental right in itself. This Supreme Court of India needs to decide the following issues to determine if the right to information of voters can be restricted on the ground of donor privacy: (a) Whether the fundamental right to informational privacy recognized by this Court in Justice K.S. Puttaswamy (J) v. Union of India includes information about a citizen's political affiliation; and (b) If (a) above is answered in the affirmative, whether financial contribution to a political party is a facet of political affiliation., Information privacy of financial contributions to political parties. In Justice K.S. Puttaswamy (J) (supra), a nine‑Judge Bench of this Court held that the Constitution guarantees the right to privacy. This Court traced the right to privacy to the constitutional ideals of dignity, liberty, and the thread of non‑arbitrariness that runs through the provisions of Part III. The scope of the right to privacy discussed in Justice K.S. Puttaswamy (J) (supra) is summarized below: (a) The right to privacy includes repose, that is, the freedom from unwanted stimuli, sanctuary, the protection against intrusive observation into intimate decisions and autonomy with respect to personal choices; (b) Privacy over intimate decisions includes decisions related to the mind and body. Privacy extends to both the decision and the process of arriving at the decision. A lack of privacy over thought (which leads to decision‑making) would suppress voices and lead to homogeneity which is contrary to the values that the Constitution espouses; (c) Privacy over decisions and choices would enable the exercise of fundamental freedoms such as the freedom of thought, expression, and association freely without coercion; (d) Privacy is attached to a person and not a space. The scope of privacy cannot be restricted only to the private space; and (e) Privacy includes informational privacy. Information which may seem inconsequential in silos can be used to influence decision‑making behavior when aggregated., The content of privacy is not limited to private actions and decisions such as the choice of a life partner, procreation and sexuality. Neither is privacy merely defined from the point of direct State intrusion. Privacy is defined as essential protection for the exercise and development of other freedoms protected by the Constitution, and from direct or indirect influence by both State and non‑State actors. Viewed in this manner, privacy takes within its fold decisions which also have a public component., The expression of political beliefs is guaranteed under Article 19(1)(a). Forming political beliefs and opinion is the first stage of political expression. The freedom of political expression cannot be exercised freely in the absence of privacy of political affiliation. Information about a person's political beliefs can be used by the State at a political level, to suppress dissent, and at a personal level, to discriminate by denying employment or subjecting them to trolls. The lack of privacy of political affiliation would also disproportionately affect those whose political views do not match the views of the mainstream., In the specific context of exercising electoral franchise, the lack of privacy of political affiliation would be catastrophic. It is crucial to electoral democracy that the exercise of the freedom to vote is not subject to undue influence. It is precisely for this reason that the law recognizes certain corrupt practices by candidates. These corrupt practices do not merely include financial corrupt practices such as bribery. They also include undue influence of the voters by an attempt to interfere with the free exercise of electoral right, publication of false information about the personal character of any candidate, and providing vehicles for the free conveyance of electors. The law penalizes practices which have the effect of disenfranchising the voter through illegitimate means., Information about a person's political affiliation can be used to disenfranchise voters through voter surveillance. Voter databases which are developed through surveillance identify voting patterns of the electors and attempt to interfere with their opinions based on the information. For example, the data of online purchase histories such as the books purchased (which would indicate the ideological leaning of the individual), clothing brands used (which would indicate the social class to which the individual belongs) or the news consumed or the newspapers subscribed (which would indicate the political leanings or ideologies) can be used to draw on the relative political affiliation of people. This information about the political affiliation of individuals can then be used to influence their votes. Voter surveillance gains particular significance when fewer people have attachments to political parties., At a systemic level, information secured through voter surveillance could be used to invalidate the foundation of the electoral system. Information about political affiliation could be used to engage in gerrymandering, the practice by which constituencies are delimited based on the electoral preference of the voters., Informational privacy to political affiliation is necessary to protect the freedom of political affiliation and exercise of electoral franchise. Thus, it follows from the judgment of this Court in Justice K.S. Puttaswamy (J) (supra) and the observations above that the Constitution guarantees the right to informational privacy of political affiliation., Having concluded that the Constitution guarantees a right to informational privacy of political affiliation, it needs to be decided if the right can be extended to the contributions to political parties. The Electoral Bond Scheme has two manifestations of privacy: first, informational privacy by prescribing confidentiality vis‑vis the political party; and second, informational privacy by prescribing non‑disclosure of the information of political contributions to the public. The Union of India submitted that contributions made to political parties must be protected both from the political party itself and the public because donor privacy is an extension of the principle of secret ballot and is a facet of free and fair elections. The petitioners argue that equating political contributions with expression of political preference through voting is flawed because it conflates money with speech. The petitioners also argue that informational privacy does not extend to political contributions because they are by their very nature public acts which influence public policy, and thus, must be subject to public scrutiny., The issue before this Court is not whether public funding of political parties is permissible. Neither is the issue whether a restriction can be placed on the contribution which can be made by a citizen to a political party. If it was, then the question of whether financial contribution to a political party is in furtherance of the right to freedom of political speech and expression under Article 19(1)(a) or the right to freedom to form associations under Article 19(1)(c) would arise. However, that not being the case, this Court is not required to decide whether financial contribution to a political party is protected by Articles 19(1)(a) and 19(1)(c)., This Court in Justice K.S. Puttaswamy (J) (supra) did not trace the right to privacy to a particular provision of the Constitution such as Article 21. Rather, this Court observed that privacy is crucial for the fulfilment of the constitutional values of self‑determination, autonomy and liberty in addition to its essentiality for realizing the fundamental freedoms such as the freedom of speech and expression. This Court further held that the non‑intrusion of the mind (the ability to preserve beliefs, thoughts and ideologies) is as important as the non‑intrusion of the body. This Court (supra) did not hold that privacy is extendable to the action of speech or the action of expression, both of which are required to possess a communicative element to receive the protection under Article 19(1)(a). Rather, the proposition in Justice K.S. Puttaswamy (J) is that privacy (including informational privacy) is extendable to thoughts, beliefs, and opinions formed for the exercise of speech and action. Thus, informational privacy would extend to financial contributions to political parties even if contributions are not traceable to Article 19(1)(a) provided that the information on political contributions indicates the political affiliation of the contributor., Financial contributions to political parties are usually made for two reasons. First, they may constitute an expression of support to the political party and second, the contribution may be based on a quid pro quo. The law as it currently stands permits contributions to political parties by both corporations and individuals. The huge political contributions made by corporations and companies should not be allowed to conceal the reason for financial contributions made by another section of the population: a student, a daily wage worker, an artist, or a teacher. When the law permits political contributions and such contributions could be made as an expression of political support which would indicate the political affiliation of a person, it is the duty of the Constitution to protect them. Not all political contributions are made with the intent of attempting to alter public policy. Contributions are also made to political parties which are not substantially represented in the legislatures. Contributions to such political parties are made purely with the intent of expressing support. At this juncture, the close association of money and politics which has been explained above needs to be recounted. Money is not only essential for electoral outcomes and for influencing policies. It is also necessary for true democratic participation. It is necessary for enhancing the number of political parties and candidates contesting the elections which would in turn impact the demographics of representatives in the Assembly. It is true that contributions made as quid pro quo transactions are not an expression of political support. However, to not grant the umbrella of informational privacy to political contributions only because a portion of the contributions is made for other reasons would be impermissible. The Constitution does not turn a blind eye merely because of the possibilities of misuse., Privacy vis‑vis political party. The second issue is whether the right to privacy of political contributions can be extended to include privacy vis‑vis the political party to which contributions are made since according to the Union of India under the Electoral Bond Scheme, the political party to which the contribution is made would not know the particulars of the contributor. Hence, it is submitted that the scheme is akin to the secret ballot., We are unable to see how the disclosure of information about contributors to the political party to which the contribution is made would infringe political expression. The disclosure of the particulars of the contributions may affect the freedom of individuals to the limited extent that the political party with the information could coerce those who have not contributed to them. However, we have already held above that the scheme only grants de jure and not de facto confidentiality vis‑vis the political party. Under the current Scheme, it is still open to the political party to coerce persons to contribute. Thus, the argument of the Union of India that the Electoral Bond Scheme protects the confidentiality of the contributor akin to the system of secret ballot is erroneous., Judicial approach towards balancing fundamental rights: establishing the double proportionality standard. At the core of governance is the conflict between different constitutional values or different conceptions of the same constitutional value. Countries with a written constitution attempt to resolve these conflicts by creating a hierarchy of rights within the constitutional order where a few fundamental rights are subject to others. For example, Article 25 of the Indian Constitution which guarantees the freedom of conscience, and the profession, practice and propagation of religion is subject to public order, morality, health and other provisions of Part III. The first exercise that the Court must undertake while balancing two fundamental rights is to determine if the Constitution creates a hierarchy between the two rights in conflict. If the Constitution does not create a hierarchy between the conflicting rights, the Courts must use judicial tools to balance the conflict between the two rights., The judicial approach towards balancing fundamental rights has evolved over the course of years. Courts have used the collective interest or the public interest standard, the single proportionality standard, and the double proportionality standard to balance the competing interests of fundamental rights., Before the proportionality standard was employed to test the validity of the justification for the infringement of fundamental rights, Courts balanced conflicting fundamental rights by according prominence to one fundamental right over the other based on public interest. This approach was undertaken through two modalities. In the first modality, the Court while identifying the fundamental rights in conflict circumscribed one of the fundamental rights in question such that there was no real conflict between the rights. The Court while circumscribing the right undertook an exercise of weighing the relative constitutional values of the rights based on public interest. In Re Noise Pollution, writ petitions were filed seeking to curb noise pollution. A two‑Judge Bench of this Court observed that those who make noise often justify their actions based on freedom of speech and expression guaranteed under Article 19(1)(a). However, this Court observed that the right to freedom of speech and expression does not include the freedom to engage in aural aggression. In this case, there was no necessity for this Court to balance two fundamental rights because the right in question (freedom of speech and expression) was circumscribed to not include the actions challenged (noise pollution). In Subramanian Swamy v. Union of India, Sections 499 and 500 of the Indian Penal Code 1860 which criminalized defamation were challenged. A two‑Judge Bench of this Court framed the issue as a conflict between the right to speech and expression under Article 19(1)(a) and the right to reputation traceable to Article 21. In this case, the two‑Judge Bench held that the right to speech and expression does not include the right to defame a person. Justice Dipak Misra (as the learned Chief Justice then was) observed that a contrary interpretation would completely abrogate the right to reputation., In the second modality of the public interest approach, the Courts undertook a comparison of the values which the rights (and the conceptions of the rights) espouse and gave more weightage to the right which was in furtherance of a higher degree of public or collective interest. In Asha Ranjan v. State of Bihar, this Court held that when there is a conflict between two individuals with respect to their right under Article 21, the facts and circumstances must be weighed on the scale of constitutional norms and sensibility and larger public interest. In PUCL (supra), one of the issues before this Court was whether the disclosure of the assets of the candidates contesting the elections in furtherance of the right to information of the voters violates the right to privacy of candidates. Justice Reddi authoring the concurring opinion observed that the right to information of the assets of candidates contesting elections trumps the right to privacy because the former serves a larger public interest. In Mazdoor Kisan Shakti Sangathan v. Union of India, proceedings under Article 32 were initiated challenging orders issued under Section 144 of the Code of Criminal Procedure prohibiting protests in certain areas in Delhi. The issue before this Court was whether the total ban of protests at the Jantar Mantar Road would violate the right to protest which is traceable to Articles 19(1)(a) and 19(1)(b). One of the inter‑related issues was whether the right to hold peaceful demonstrations violates the right of consequence which impairs circulation of thought and ideas. The Court held that demonstrations as it has been happening are causing serious discomfort to the residents, and that the right to protest could be balanced with the right to peaceful residence if authorities had taken adequate safeguards such as earmarking specific areas for protest, placing restrictions on the use of loudspeakers and on parking of vehicles around residential places., The judgment of this Court in Mazdoor Kisan Shakti (supra), represents the gradual shift from the pre‑proportionality phase to the proportionality stage which signifies a shift in the degree of justification and the employment of a structured analysis for balancing fundamental rights. In Mazdoor Kisan Shakti (supra), this Court applied one of the prongs of the proportionality standard (the least restrictive means prong) while balancing the right to protest and the right to peaceful residence. The Court identified other means which would have infringed the right to a peaceful residence to a lesser extent., In 2012, a five‑Judge Bench of this Court in Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India, used a standard which resembled the structured proportionality standard used in Justice K.S. Puttaswamy (5J) v. Union of India to balance the conflict between two fundamental rights. This judgment marked the first departure from the series of cases in which this Court balanced two fundamental rights based on doctrinal predominance. In Sahara (supra), the petitioner submitted a proposal for the repayment of optionally fully convertible bonds to the investors. The details of the proposals were published by a news channel. Interlocutory applications were filed in the Court praying for the issuance of guidelines for reporting matters which are sub‑judice. This Court resolved the conflict between the freedom of press protected under Article 19(1)(a) and the right to free trial under Article 21 by evolving a neutralizing device. This Court held that it has the power to evolve neutralizing devices such as the postponement of trial, retrial, change of venue, and in appropriate cases, grant acquittal in case of excessive media prejudicial publicity to neutralize the conflicting rights. This Court followed the Canadian approach in evolving a two‑prong standard to balance fundamental rights through neutralizing devices which partly resembled the structured proportionality standard. The two‑prong test was as follows: (a) There is no other reasonable alternative measure available (necessity test); and (b) The salutary effects of the measure must outweigh the deleterious effects on the fundamental rights (proportionality standard)., Finally, this Court in Justice K.S. Puttaswamy (5J) (supra) applied the structured proportionality standard to balance two fundamental rights. In this case, a Constitution Bench of this Court while testing the validity of the Aadhaar Act 2016 had to resolve the conflict between the right to informational privacy and the right to food. Justice Sikri writing for the majority held that the Aadhaar Act fulfills all the four prongs of the proportionality standard. In the final prong of the proportionality stage, that is the balancing stage, this Court held that one of the considerations was to balance the right to privacy and the right to food. On balancing the fundamental rights, this Court held that the provisions furthering the right to food satisfy a larger public interest whereas the invasion of privacy rights was minimal., However, the single proportionality standard which is used to test whether the fundamental right in question can be restricted for the State interest (that is, the legitimate purpose) and if it can, whether the measure used to restrict the right is proportional to the objective is insufficient for balancing the conflict between two fundamental rights. The proportionality standard is an effective standard to test whether the infringement of the fundamental right is justified. It would prove to be ineffective when the State interest in question is also a reflection of a fundamental right., The proportionality standard is by nature curated to give prominence to the fundamental right and minimize the restriction on it. If this Court were to employ the single proportionality standard to the considerations in this case, at the suitability prong, this Court would determine if non‑disclosure is a suitable means for furthering the right to privacy.
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At the necessity stage, the Supreme Court of India would determine if non-disclosure is the least restrictive means to give effect to the right to privacy. At the balancing stage, the Supreme Court of India would determine if non-disclosure has a disproportionate effect on the right holder. In this analysis, the necessity and the suitability prongs will inevitably be satisfied because the purpose is substantial: it is a fundamental right. The balancing stage will only account for the disproportionate impact of the measure on the right to information (the right) and not the right to privacy (the purpose) since the Supreme Court of India is required to balance the impact on the right with the fulfillment of the purpose through the selected means. Thus, the Supreme Court of India while applying the proportionality standard to resolve the conflict between two fundamental rights preferentially frames the standard to give prominence to the fundamental right which is alleged to be violated by the petitioners (in this case, the right to information). This could well be critiqued for its limitations., In Campbell v. MGM Limited, Baroness Hale adopted the double proportionality standard to adequately balance two conflicting fundamental rights. In this case, the claimant, a public figure, instituted proceedings against a newspaper for publishing details of her efforts to overcome drug addiction. Baroness Hale applied the following standard to balance the right to privacy of the claimant and the right to a free press: This involved looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each., In Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal, Justice D.Y. Chandrachud, while authoring the concurring opinion, adopted the double proportionality standard as formulated in Campbell. Referring to the double proportionality standard, the concurring opinion observes that the Supreme Court of India while balancing between two fundamental rights must identify the precise interests weighing in favour of both disclosure and privacy and not merely undertake a doctrinal analysis to determine if one of the fundamental rights takes precedence over the other. Take the example of where an information applicant sought the disclosure of how many leaves were taken by a public employee and the reasons for such leave. The need to ensure accountability of public employees is of clear public interest in favour of disclosure. The reasons for the leave may also include medical information with respect to the public employee, creating a clear privacy interest in favour of non-disclosure. It is insufficient to state that the privacy interest in medical records is extremely high and therefore the outcome should be blanket non-disclosure. The principle of proportionality may necessitate that the number of and reasons for the leaves be disclosed and the medical reasons for the leave be omitted. This would ensure that the interest in accountability is only abridged to the extent necessary to protect the legitimate aim of the privacy of the public employee., Baroness Hale in Campbell employed a three‑step approach to balance fundamental rights. The first step is to analyse the comparative importance of the actual rights claimed. The second step is to lay down the justifications for the infringement of the rights. The third is to apply the proportionality standard to both the rights. The approach adopted by Baroness Hale must be slightly tempered to suit our jurisprudence on proportionality. Indian courts adopt a four‑prong structured proportionality standard to test the infringement of fundamental rights. In the last stage of the analysis, the Supreme Court of India undertakes a balancing exercise to analyse if the cost of the interference with the right is proportional to the extent of fulfilment of the purpose. It is in this step that the Supreme Court of India undertakes an analysis of the comparative importance of the considerations involved in the case, the justifications for the infringement of the rights, and if the effect of infringement of one right is proportional to achieve the goal. Thus, the first two steps laid down by Baroness Hale are subsumed within the balancing prong of the proportionality analysis., Based on the above discussion, the standard which must be followed by courts to balance the conflict between two fundamental rights is as follows: a. Does the Constitution create a hierarchy between the rights in conflict? If yes, then the right which has been granted a higher status will prevail over the other right involved. If not, the following standard must be employed from the perspective of both the rights where rights A and B are in conflict: b. Whether the measure is a suitable means for furthering right A; c. Whether the measure is least restrictive and equally effective to realise right A and right B; and d. Whether the measure has a disproportionate impact on right A., Validity of the Electoral Bond Scheme, Section 11 of the Finance Act and Section 137 of the Finance Act. To recall, Section 13A of the Income Tax Act before the amendment mandated that the political party must maintain a record of contributions in excess of rupees twenty thousand. Section 11 of the Finance Act 2017 amended Section 13A creating an exception for contributions made through Electoral Bonds. Upon the amendment, political parties are not required to maintain a record of any contribution received through electoral bonds. Section 29C of the Representation of the People Act mandated the political party to prepare a report with respect to contributions received in excess of twenty thousand rupees from a person or company in a financial year. Section 137 of the Finance Act amended Section 29C of the Representation of the People Act by which a political party is now not required to include contributions received by electoral bonds in its report. As explained earlier, the feature of anonymity of the contributor vis‑vis the public is intrinsic to the Electoral Bond Scheme. Amendments had to be made to Section 13A of the Income Tax Act and Section 29C of the Representation of the People Act to implement the Electoral Bond Scheme because the scheme mandates anonymity of the contributor. In this section, we will answer the question of whether the scheme adequately balances the right to informational privacy of the contributor and the right to information of the voter., In Justice K.S. Puttaswamy (J) (supra), the Supreme Court of India did not trace the right to privacy only to Article 21. The Court considered privacy as an essential component for the effective fulfillment of all entrenched rights. Article 25 of the Constitution is the only provision in Part III which subjects the right to other fundamental rights. Article 25 guarantees the freedom of conscience which means the freedom to judge the moral qualities of one's conduct. Financial contributions to a political party (as a form of expression of political support and belief) can be traced to the exercise of the freedom of conscience under Article 25. It can be argued that the right to information of the voter prevails over the right to anonymity of political contributions which may be traceable to the freedom of conscience recognized under Article 25 since it is subject to all other fundamental rights, including Article 19(1)(a). However, the right to privacy of financial contributions to political parties can also be traced to Article 19(1) because the informational privacy of a person's political affiliation is necessary to enjoy the right to political speech under Article 19(1)(a), the right to political protests under Article 19(1)(b), the right to form a political association under Article 19(1)(c), and the right to life and liberty under Article 21. The Constitution does not create a hierarchy amongst these rights. Thus, there is no constitutional hierarchy between the right to information and the right to informational privacy of political affiliation., The Supreme Court of India must now apply the double proportionality standard, that is, the proportionality standard to both the rights (as purposes) to determine if the means used are suitable, necessary and proportionate to the fundamental rights. The Union of India submitted that Clause 7(4) of the Electoral Bond Scheme balances the right to information of the voter and the right to informational privacy of the contributor. Clause 7(4) stipulates that the information furnished by the buyer shall be treated as confidential by the authorized bank. The bank has to disclose the information when it is demanded by a competent court or upon the registration of a criminal case by a law enforcement agency. It needs to be analyzed if the measure employed (Clause 7(4)) balances the rights or tilts the balance towards one of the fundamental rights., The first prong of the analysis is whether the means has a rational connection with both the purposes, that is, informational privacy of the political contributions and disclosure of information to the voter. It is not necessary that the means chosen should be the only means capable of realising the purpose of the state action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means constitute one of the many methods by which the purpose can be realised, even if it only partially gives effect to the purpose., The Supreme Court of India while applying the suitability prong to the purpose of privacy of political contribution must consider whether the non-disclosure of information to the voter and its disclosure only when demanded by a competent court and upon the registration of a criminal case has a rational nexus with the purpose of achieving privacy of political contribution. Undoubtedly, the measure by prescribing non-disclosure of information about political funding shares a nexus with the purpose. The non-disclosure of information grants anonymity to the contributor, thereby protecting informational privacy. It is certainly one of the ways capable of realising the purpose of informational privacy of political affiliation., The suitability prong must next be applied to the purpose of disclosure of information about political contributions to voters. There is no nexus between the balancing measure adopted with the purpose of disclosure of information to the voter. According to Clause 7(4) of the Electoral Bond Scheme and the amendments, the information about contributions made through the Electoral Bond Scheme is exempted from disclosure requirements. This information is never disclosed to the voter. The purpose of securing information about political funding can never be fulfilled by absolute non-disclosure. The measure adopted does not satisfy the suitability prong vis‑vis the purpose of information of political funding. However, let us proceed to apply the subsequent prongs of the double proportionality analysis assuming that the means adopted has a rational nexus with the purpose of securing information about political funding to voters., The next stage of the analysis is the necessity prong. At this stage, the Supreme Court of India determines if the measure identified is the least restrictive and equally effective measure. To recall, the Court must determine if there are other possible means which could have been adopted to fulfil the purpose, and whether such alternative means (a) realise the purpose in a real and substantial manner; (b) impact fundamental rights differently; and (c) are better suited on an overall comparison of the degree of realising the purpose and the impact on fundamental rights., The provisions of the Representation of the People Act provide an alternative measure. Section 29C states that contributions in excess of rupees twenty thousand received from a person or company for that financial year must be disclosed by the political party through a report. The report must be filed in the format prescribed in Form 24A of the Conduct of Election Rules 1961. A crucial component of this provision when juxtaposed with Section 13A of the Income Tax Act must be noted. Section 13A of the Income Tax Act requires the political party to maintain a record of the contributions made in excess of rupees twenty thousand. Section 29C of the Representation of the People Act requires the political party to disclose information about contributions in excess of rupees twenty thousand made by a person or company in a financial year. Section 13A mandates record keeping of every contribution. On the other hand, Section 29C mandates disclosure of information of contributions beyond rupees twenty thousand per person or per company in one financial year., Section 29C(1) is one of the means to achieve the purpose of protecting the informational privacy of political affiliation of individuals. Parliament in its wisdom has prescribed rupees twenty thousand as the threshold where the considerations of disclosure of information of political contribution outweigh the considerations of informational privacy. It could be debated whether rupees twenty thousand is on the lower or higher range of the spectrum. However, that is not a question for this Court to answer in this batch of petitions. The petitioners have not challenged the threshold of rupees twenty thousand prescribed for the disclosure of information. They have only raised a challenge to the disclosure exception granted to contributions by Electoral Bonds. Thus, this Court need not determine if the threshold tilts the balance in favour of one of the interests. We are only required to determine if the disclosure of information on financial contributions in a year beyond rupees twenty thousand is an alternative means to achieve the purposes of securing the information on financial contributions and informational privacy regarding political affiliation., It must be recalled that we have held above that the right to information of the voter includes the right to information of financial contributions to a political party because of the influence of money in electoral politics and governmental decisions. The underlying rationale of Section 29C(1) is that contributions below the threshold do not have the ability to influence decisions, and the right to information of financial contributions does not extend to contributions which do not have the ability to influence decisions. Similarly, the right to privacy of political affiliations does not extend to contributions which may be made to influence policies. It only extends to contributions made as a genuine form of political support that the disclosure of such information would indicate their political affiliation and curb various forms of political expression and association., It is quite possible that contributions which are made beyond the threshold could also be a form of political support and not necessarily a quid pro quo arrangement, and contributions below the threshold could influence electoral outcomes. However, the restriction on the right to information and informational privacy of such contributions is minimal when compared to a blanket non-disclosure of information on contributions to political parties. Thus, this alternative realizes the objective of securing disclosure for an informed voter and informational privacy to political affiliation in a real and substantial manner. The measure in the Electoral Bond Scheme completely tilts the balance in favour of the purpose of informational privacy and abrogates informational interests. On an overall comparison of the measure and the alternative, the alternative is better suited because it realizes the purposes to a considerable extent and imposes a lesser restriction on the fundamental rights. Having concluded that Clause 7(4) of the Scheme is not the least restrictive means to balance the fundamental rights, there is no necessity of applying the balancing prong of the proportionality standard., The Union of India has been unable to establish that the measure employed in Clause 7(4) of the Electoral Bond Scheme is the least restrictive means to balance the rights of informational privacy to political contributions and the right to information of political contributions. Thus, the amendment to Section 13A(b) of the Income Tax Act introduced by the Finance Act 2017, and the amendment to Section 29C(1) of the Representation of the People Act are unconstitutional. The question is whether this Court should only strike down the non-disclosure provision in the Electoral Bond Scheme, that is Clause 7(4). However, as explained above, the anonymity of the contributor is intrinsic to the Electoral Bond Scheme. The Electoral Bond is not distinguishable from other modes of contributions through the banking channels such as cheque transfer, transfer through the Electronic Clearing System or direct debit if the anonymity component of the Scheme is struck down. Thus, the Electoral Bond Scheme 2018 will also consequentially have to be struck down as unconstitutional., Validity of Section 154 of the Finance Act amending Section 182(3) to the Companies Act. Before the 2017 amendment, Section 182(3) of the Companies Act mandated companies to disclose the details of the amount contributed to a political party along with the name of the political party to which the amount was contributed in its profit and loss account. After the amendment, Section 182(3) only requires the disclosure of the total amount contributed to political parties in a financial year. For example, under Section 182(3) as it existed before the amendment, if a company contributed rupees twenty thousand to a political party, the company was required to disclose in its profit and loss account the details of the specific contributions made to that political party. However, after the 2017 amendment, the company is only required to disclose that it contributed rupees twenty thousand to a political party without disclosing the details of the contribution, that is, the political party to which the contribution was made. The profit and loss account of a company is included in the financial statement which companies are mandated to prepare. A copy of the financial statement adopted at the annual general meeting of the company must be filed with the Registrar of Companies., The Companies Act 1956 was amended in 1960 to include Section 293A by which contributions by companies to political parties and for political purposes were regulated. Companies were permitted to contribute within the cap prescribed. All such contributions were required to be disclosed by the company in its profit and loss account with details. Companies which contravened the disclosure requirement were subject to fine. It is crucial to note that contributions to political parties by companies were regulated long before the Income Tax Act was amended in 1978 to exempt the income of political parties through voluntary contributions for tax purposes (ostensibly to curb black money). It is clear as daylight that the purpose of mandating the disclosure of contributions made by companies was not merely to curb black money in electoral financing but crucially to make the financial transactions between companies and political parties transparent. Contributions for political purposes were widely defined in the 1985 amendment (which was later incorporated in Section 182 of the Companies Act 2013) to include expenditure (either directly or indirectly) for advertisement on behalf of political parties and payment to a person who is carrying activity which can be regarded as likely to affect public support to a political party. This indicates that the legislative intent of the provision mandating disclosure was to bring transparency to political contributions by companies. Companies have always been subject to a higher disclosure requirement because of their huge financial presence and the higher possibility of quid pro quo transactions between companies and political parties. The disclosure requirements in Section 182(3) were included to ensure that corporate interests do not have an undue influence in electoral democracy, and if they do, the electorate must be made aware of it., Section 182(3) as amended by the Finance Act 2017 mandates the disclosure of total contributions made by political parties. This requirement would ensure that the money which is contributed to political parties is accounted for. However, the deletion of the mandate of disclosing the particulars of contributions violates the right to information of the voter since they would not possess information about the political party to which the contribution was made, which, as we have held above, is necessary to identify corruption and quid pro quo transactions in governance. Such information is also necessary for exercising an informed vote., Section 182(3) of the Companies Act and Section 29C of the Representation of the People Act as amended by the Finance Act must be read together. Section 29C exempts political parties from disclosing information of contributions received through Electoral Bonds. However, Section 182(3) not only applies to contributions made through electoral bonds but through all modes of transfer. In terms of the provisions of the Representation of the People Act, if a company made contributions to political parties through cheque or ECS, the political party had to disclose the details in its report. Thus, the information about contributions by the company would be in the public domain. The only purpose of amending Section 182(3) was to bring the provision in tune with the amendment under the Representation of the People Act exempting disclosure requirements for contributions through electoral bonds. The amendment to Section 182(3) of the Companies Act becomes otiose in terms of our holding in the preceding section that the Electoral Bond Scheme and relevant amendments to the Representation of the People Act and the Income Tax Act mandating non-disclosure of particulars on political contributions through electoral bonds is unconstitutional., In terms of Section 136 of the Companies Act, every shareholder in a company has a right to a copy of the financial statement which also contains the profit and loss account. The petitioners submitted that the non-disclosure of the details of the political contributions made by companies in the financial statement would infringe upon the right of the shareholders to decide to sell the shares of a company if a shareholder does not support the political ideology of the party to which contributions were made. This, it was contended, violates Articles 19(1)(a), 19(1)(g), 21 and 25. We do not see the necessity of viewing the non-disclosure requirement in Section 182(3) of the Companies Act from the lens of a shareholder in this case when we have identified the impact of non-disclosure of information on political funding from the larger compass of a citizen and a voter. In view of the above discussion, Section 182(3) as amended by the Finance Act 2017 is unconstitutional., Challenge to unlimited corporate funding. The Companies Act 1956, as originally enacted, did not contain any provision relating to political contributions by companies. Nevertheless, many companies sought to make contributions to political parties by amending their memorandum. In Jayantilal Ranchhoddas Koticha v. Tata Iron and Steel Co. Ltd., the decision of the company to amend its memorandum enabling it to make contributions to political parties was challenged before the High Court of Judicature at Bombay. The High Court upheld the decision of the company to amend its memorandum on the ground that there was no law prohibiting companies from contributing to the funds of a party. Chief Justice M.C. Chagla cautioned against the influential role of big business and money bags in throttling democracy. The learned judge emphasized that it is the duty of courts to prevent any influence being exercised upon the voter which is an improper influence or which may be looked at from any point of view as a corrupt influence. Chief Justice Chagla highlighted the grave danger inherent in permitting companies to donate to political parties and hoped Parliament would consider under what circumstances and under what limitations companies should be permitted to make these contributions., Subsequently, Parliament enacted the Companies (Amendment) Act 1960 to incorporate Section 293A in the 1956 Act. The new provision allowed a company to contribute to: (a) any political party; or (b) for any political purpose to any individual or body. However, the amount of contribution was restricted to either twenty‑five thousand rupees in a financial year or five percent of the average net profits during the preceding three financial years, whichever was greater. The provision also mandated every company to disclose in its profit and loss account any amount contributed by it to any political party or for any political purpose to any individual or body during the financial year to which that account relates by giving particulars of the total amount contributed and the name of the party, individual, or body to which such amount has been contributed., In 1963, the Report of the Santhanam Committee on Prevention of Corruption highlighted the prevalence of corruption at high political levels due to unregulated collection of funds and electioneering by political parties. The Committee suggested a total ban on all donations by incorporated bodies to political parties. Subsequently, Section 293A of the 1956 Act was amended through the Companies (Amendment) Act 1969 to prohibit companies from contributing funds to any political party or to any individual or body for any political purpose., In 1985, Parliament again amended Section 293A, reversing its previous ban on political contributions by companies. It allowed a company, other than a government company and any other company with less than three years of existence, to contribute any amount or amounts to any political party or to any person for any political purpose. It further provided that the aggregate of amounts which may be contributed by a company in any financial year shall not exceed five percent of its average net profits during the three immediately preceding financial years. This provision was retained under Section 182 of the Companies Act 2013. The only change was that the aggregate amount donated by a company was increased to seven and a half percent of its average net profits during the three immediately preceding financial years. Section 154 of the Finance Act 2017 amended Section 182 of the 2013 Act to delete this limit contained in the first proviso of the provision., At the outset, it is important to be mindful of the fact that the petitioners are not challenging the vires of Section 182 of the 2013 Act. Neither are the petitioners challenging the legality of contributions made by companies to political parties. The challenge is restricted to Section 154 of the Finance Act 2017 which amended Section 182 of the 2013 Act., The application of the principle of non‑arbitrariness. The petitioners argue that Section 154 of the Finance Act 2017 violates Article 14 of the Constitution. The primary ground of challenge is that the amendment to Section 182 of the 2013 Act is manifestly arbitrary as it allows companies, including loss‑making companies, to contribute unlimited amounts to political parties. It has also been argued that the law now facilitates the creation of shell companies solely for the purposes of contributing funds to political parties. On the other hand, the respondent has questioned the applicability of the doctrine of manifest arbitrariness for invalidating legislation., Arbitrariness as a facet of Article 14. At the outset, the relevant question that this Court has to answer is whether a legislative enactment can be challenged on the sole ground of manifest arbitrariness. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 14 is an injunction to both the legislative as well as the executive organs of the State to secure to all persons within the territory of India equality before law and equal protection of the laws. Traditionally, Article 14 was understood to only guarantee non‑discrimination. In this context, courts held that Article 14 does not forbid all classifications but only that which is discriminatory. In State of West Bengal v. Anwar Ali Sarkar, Justice S.R. Das laid down the following two conditions which a legislation must satisfy to get over the inhibition of Article 14: first, the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and second, the differentia must have a rational relation to the object sought to be achieved by the legislation. In the ensuing years, this Court followed this traditional approach to test the constitutionality of legislation on the touchstone of Article 14.
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In E.P. Royappa v. State of Tamil Nadu, the Supreme Court of India expanded the ambit of Article 14 by laying down non‑arbitrariness as a limiting principle in the context of executive actions. Justice P.N. Bhagwati, speaking for the Bench, observed that equality is a dynamic concept with many aspects and dimensions which cannot be confined within traditional and doctrinaire limits. The opinion declared that equality is antithetic to arbitrariness, further finding that equality belongs to the rule of law in a republic, while arbitrariness belongs to the whim and caprice of an absolute monarch., In Ajay Hasia v. Khalid Mujib Seheravardi, a Constitution Bench of the Supreme Court of India considered it well settled that any action that is arbitrary necessarily involves negation of equality. Justice Bhagwati observed that the doctrine of non‑arbitrariness can also be extended to legislative action, stating that wherever there is arbitrariness in State action—whether by the legislature, the executive, or an authority under Article 12—Article 14 immediately springs into action and strikes down such State action., Immediately after the judgment in Ajay Hasia, Justice E.S. Venkataramaiah, as the learned Chief Justice then was, in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, laid down the test of manifest arbitrariness with respect to subordinate legislation. It was held that subordinate legislation does not enjoy the same degree of immunity as a statute passed by a competent legislature and may be questioned on the ground that it is unreasonable, not in the sense of merely unreasonable, but in the sense that it is manifestly arbitrary. In Sharma Transport v. Government of Andhra Pradesh, the Supreme Court of India reiterated Indian Express Newspapers by observing that the test of arbitrariness as applied to an executive action cannot be applied to delegated legislation unless it is shown that the delegated legislation is not reasonable and is manifestly arbitrary. The Court defined arbitrariness as acting in an unreasonable manner, capriciously or at pleasure, without an adequate determining principle, non‑rational, and not based on reason or judgment., While the Supreme Court of India accepted that subordinate legislation can be challenged on the ground of manifest arbitrariness, there was divergence regarding its application to plenary legislation. In State of Tamil Nadu v. Ananthi Ammal, a three‑Judge Bench held that a statute can be declared invalid under Article 14 if it is found to be arbitrary or unreasonable. Similarly, in Dr. K.R. Lakshmanan v. State of Tamil Nadu, a three‑Judge Bench invalidated legislation on the ground that it was arbitrary and violated Article 14. However, in State of Andhra Pradesh v. McDowell & Co., another three‑Judge Bench held that plenary legislation cannot be struck down on the ground that it is arbitrary or unreasonable, limiting invalidation to lack of legislative competence or violation of fundamental rights guaranteed in Part III of the Constitution., The divergence became more apparent when a three‑Judge Bench in Malpe Vishwanath Acharya v. State of Maharashtra invalidated certain provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, declaring them unreasonable, arbitrary, and violative of Article 14, though the Court did not strike them down because the extended period of the statute was about to end, requiring governmental reconsideration. Similarly, in Mardia Chemicals Ltd. v. Union of India, a three‑Judge Bench invalidated Section 17(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, for being unreasonable and arbitrary., In Natural Resources Allocation, In Re Special Reference No. 1 of 2012, a Constitution Bench of the Supreme Court of India referred to McDowell and observed that a law may not be struck down as arbitrary without a constitutional infirmity. It held that a mere finding of arbitrariness is insufficient to invalidate legislation; the Court must enquire whether the legislation contravenes any other constitutional provision or principle., In Shayara Bano v. Union of India, a Constitution Bench of the Supreme Court of India set aside the practice of Triple Talaq. Section 2 of the Muslim Personal Law (Shariat) Act, 1937, which provided that the personal law of Muslims would apply to marriage, dissolution of marriage and talaq, was impugned. Justice R.F. Nariman, speaking for the majority, held that Triple Talaq is manifestly arbitrary because it allows a Muslim man to capriciously and whimsically break a marital tie without any attempt at reconciliation. He applied the principle of manifest arbitrariness to test the constitutional validity of the legislation under Article 14., Justice Nariman traced the evolution of non‑arbitrariness jurisprudence in India and observed that McDowell failed to consider two binding precedents, namely Ajay Hasia and K.R. Lakshmanan, and also did not notice Maneka Gandhi v. Union of India, where the Supreme Court held that substantive due process is part of Article 21 and must be read along with Articles 14 and 19. He held that arbitrariness of legislation is a facet of unreasonableness in Articles 19(2) to (6) and can be used as a standard to strike down legislation under Article 14, declaring McDowell per incuriam and bad in law., Shayara Bano clarified In Re Special Reference No. 1 of 2012 by holding that a finding of manifest arbitrariness is itself a constitutional infirmity and therefore a ground for invalidating legislation for violation of Article 14. The Court held that there is no rational distinction between subordinate legislation and plenary legislation for the purposes of Article 14, and that the test of manifest arbitrariness laid down in Indian Express Newspapers for subordinate legislation also applies to plenary legislation. The Court concluded that manifest arbitrariness must be something done by the legislature capriciously, irrationally and/or without an adequate determining principle, and that legislation which is excessive and disproportionate would also be manifestly arbitrary., The standard of manifest arbitrariness was further cemented by the Constitution Bench in Navtej Singh Johar v. Union of India. In that case, Section 377 of the Indian Penal Code, 1860, was challenged on the ground that it is manifestly arbitrary. Chief Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, held that Section 377 is manifestly arbitrary for failing to distinguish between consensual and non‑consensual sexual acts between consenting adults. Justice Nariman, in a concurring opinion, observed that Section 377 is manifestly arbitrary for penalising consensual gay sex and for not distinguishing between consensual and non‑consensual sex. Justice D.Y. Chandrachud noted that Section 377, to the extent that it penalises the physical manifestation of love by the LGBTQ+ community, is manifestly arbitrary. Justice Indu Malhotra also observed that the provision is manifestly arbitrary because its basis of criminalisation is the sexual orientation of a person, which is not a rational principle., In Joseph Shine v. Union of India, a Constitution Bench expressly concurred with the doctrine of manifest arbitrariness as evolved in Shayara Bano. Justice D.Y. Chandrachud observed that the doctrine serves as a check against state action or legislation that contains elements of caprice, irrationality or lacks an adequate determining principle. The case challenged the validity of Section 497 of the Indian Penal Code, which penalised a man who had sexual intercourse with a woman he knew or had reason to believe to be the wife of another man, without the consent and connivance of that man. Justice Nariman observed that the provision had paternalistic undertones because it did not penalise a married man for having sexual intercourse with a married woman if he obtained the husband's consent, treating the woman like chattel. He held that the provision was archaic, had outlived its purpose, and was manifestly arbitrary, lacking rationality and violating contemporary constitutional morality. The learned Judge further noted that the ostensible object of preserving the sanctity of marriage was not achieved, as the sanctity could be destroyed by a married man’s intercourse with an unmarried woman or widow, and the offence was not committed if the husband’s consent was obtained. Justice Chandrachud observed that a provision is manifestly arbitrary if its determining principle is not in consonance with constitutional values, and Chief Justice Misra held that Section 497 lacked logical consistency because it did not treat the wife of the adulterer as an aggrieved person and effectively granted a licence to the husband of the woman., It is now a settled position of law that a statute can be challenged on the ground that it is manifestly arbitrary. The standard laid down by Justice Nariman in Shayara Bano has been cited with approval by the Constitution Benches in Navtej Singh Johar and Joseph Shine. Courts testing the validity of a law on the ground of manifest arbitrariness must determine whether the statute is capricious, irrational and without an adequate determining principle, or whether it is excessive and disproportionate. A provision lacks an adequate determining principle if its purpose is not in consonance with constitutional values. In applying this standard, courts must distinguish between the ostensible purpose claimed by the State and the real purpose identified by the courts based on the material available. A provision is manifestly arbitrary even if it does not make a classification., The Supreme Court of India has discussed the first application of the doctrine by distinguishing between the ostensible purpose and the real purpose of a provision. The application of manifest arbitrariness by Chief Justice Misra and Justice Nariman in Navtej Singh Johar to strike down a provision for not classifying between consensual and non‑consensual sex must be understood against two jurisprudential developments: the shift from reading Part III provisions as isolated silos to recognising a thread of reasonableness that runs through all provisions, and the reading of Article 14 to include both formal equality and substantive equality. Formal equality means the law must treat everyone equally in the formal sense, while substantive equality guarantees factual equality, allowing the legislature to recognise degrees of harm and tailor classifications accordingly. It is unreasonable, unjust, and arbitrary if the legislature does not identify degrees of harm for the purpose of law., It is not the constitutional role of the Supreme Court of India to second‑guess the intention of the legislature in enacting a particular statute. The legislature represents the democratic will of the people, and courts must presume that the legislature is aware of the needs of the people. However, the Court must avoid equating plenary legislation with subordinate legislation. In Re Delhi Laws Act 1912, Justice Fazl Ali summed up the scope of plenary and delegated legislation, stating that the legislature must normally discharge its primary legislative function itself, may utilise outside agencies for ancillary matters, cannot abdicate its legislative functions, and that the doctrine of separation of powers as applied in America does not bind Indian courts. The two main checks on legislative delegation in India are good sense and the principle that delegation must not cross the line into abdication., In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax and others, a Constitution Bench held that subordinate legislation is ancillary to the statute and must be consistent with the parent law, acting in good faith, reasonably, within the delegated power, and on relevant consideration of material facts. The doctrine of manifest arbitrariness, as developed in Indian Express Newspapers for subordinate legislation, applies where the subordinate legislation is so arbitrary that it cannot be said to conform with the statute or it offends Article 14 of the Constitution., The above discussion shows that manifest arbitrariness of subordinate legislation must be tested primarily against its conformity with the parent statute. Therefore, when subordinate legislation is challenged on the ground of manifest arbitrariness, the Supreme Court of India will examine whether the delegate failed to consider vital facts required by the statute or the Constitution. In contrast, applying manifest arbitrariness to plenary legislation passed by a competent legislature requires a different standard because plenary legislation enjoys greater immunity. While the Court concurs with Shayara Bano that legislative action can be tested for manifest arbitrariness, it clarifies that a distinction must be maintained between plenary and subordinate legislation when they are challenged on this ground., The validity of Section 154 of the Finance Act, 2017, which omitted the first proviso to Section 182 of the Companies Act, 199, is now before the Supreme Court of India. The amendment allows a company, other than a government company and a company existing for less than three financial years, to contribute unlimited amounts to any political party, and permits both profit‑making and loss‑making companies to contribute funds to political parties. The issue is whether the removal of contribution restrictions is manifestly arbitrary and violates Article 14 of the Constitution., As discussed earlier, the Supreme Court of India has consistently pointed out the pernicious effect of money on the integrity of the electoral process. The Law Commission of India, in its 170th Report, observed that most business houses already know where their interests lie and make contributions accordingly to the political party likely to advance those interests. The question before the Court is not how political parties spend their financial resources, but how they acquire those resources in the first instance., In Kesavananda Bharati v. State of Kerala, the majority of the Supreme Court held that republican and democratic forms of government form the basic elements of the constitutional structure. Subsequently, in Indira Nehru Gandhi v. Raj Narain, Justice H.R. Khanna reiterated that the democratic set‑up of government is a part of the basic features of the Constitution. Elections matter in a democracy because they are the most profound expression of the will of the people, and free and fair elections are an essential concomitant of democratic governance., The Supreme Court has also consistently held that free and fair elections are vital to democracy. In Kuldip Nayar v. Union of India, a Constitution Bench held that a democratic form of government depends on a free and fair election system. In People's Union for Civil Liberties v. Union of India, the Court observed that free and fair elections denote equal opportunity to all people and must not be rigged, manipulated, or subject to unfair means and malpractices., The integrity of the election process is pivotal for sustaining the democratic form of government. The Constitution places the conduct of free and fair elections on a high pedestal. Article 324 entrusts the Election Commission with the entire electoral process, from issuing the notification by the President to the final declaration of results. However, the Election Commission is not the sole body responsible for securing electoral integrity; the legislature, executive, and judiciary also have positive constitutional duties to safeguard the electoral process., During the arguments, the learned Solicitor General submitted that the limit of seven and a half percent of the average net profits in the preceding three financial years was perceived as a restriction on companies wishing to donate beyond the statutory cap. He further submitted that companies seeking to donate above the cap would create shell companies and route contributions through them, and that the removal of the cap was intended to discourage the creation of shell companies., The limit on contributions was originally incorporated in Section 293A of the 1956 Act through the Companies (Amendment) Bill, 1985. The original restriction was five per cent of a company's average net profits during the three immediately preceding financial years. The Lok Sabha debates revealed that the restriction aimed to discourage loss‑making companies from making political contributions, with the Minister of Chemicals and Fertilizers and Industry and Company Affairs stating that companies without profits should not be encouraged to contribute, and that a monetary ceiling had been done away with in favour of a profit‑based percentage., Thus, the object behind limiting contributions was to discourage loss‑making companies from contributing to political parties. In 1985, Parliament prescribed that only companies existing for more than three years could contribute, also to prevent loss‑making and shell companies from making financial contributions. When the amendment to Section 182 of the 2013 Act was proposed in 2017, the Election Commission opposed it, warning that it would open the possibility of creating shell companies solely for political donations. The Commission noted that removing the seven and a half percent cap would enable shell companies to be set up for the sole purpose of making donations to political parties without any other disbursable profits., After the amendment, companies, similar to individuals, can make unlimited contributions, and both profit‑making and loss‑making companies can contribute to political parties. In essence, the amendment removes the classification between companies and individuals, and between loss‑making and profit‑making companies, for the purpose of political contributions. The principle of manifest arbitrariness discussed above must therefore be recalled in assessing the constitutional validity of this amendment.
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The doctrine of manifest arbitrariness can be used to strike down a provision where the legislature fails to make a classification by recognizing the degrees of harm and the purpose is not in consonance with constitutional values., One of the reasons for which companies may contribute to political parties could be to secure income tax benefit. However, companies have been contributing to political parties much before the Indian legal regime in 2003 exempted contributions to political parties. Contributions are made for reasons other than saving on the Income Tax. The chief reason for corporate funding of political parties is to influence the political process which may in turn improve the company's business performance., A company, whatever may be its form or character, is principally incorporated to carry out the objects contained in the memorandum. However, the amendment now allows a company, through its Board of Directors, to contribute unlimited amounts to political parties without any accountability and scrutiny. Unlimited contribution by companies to political parties is antithetical to free and fair elections because it allows certain persons or companies to wield their clout and resources to influence policy making. The purpose of Section 182 is to curb corruption in electoral financing. For instance, the purpose of banning a Government company from contributing is to prevent such companies from entering into the political fray by making contributions to political parties. The amendment to Section 182 by permitting unlimited corporate contributions, including by shell companies, authorizes unrestrained influence of companies on the electoral process. This is violative of the principle of free and fair elections and political equality captured in the value of one person one vote., The amendment to Section 182 of the Companies Act must be read along with other provisions on financial contributions to political parties under the Representation of the People Act and the Income Tax Act. Neither the Representation of the People Act nor the Income Tax Act place a cap on the contributions which can be made by an individual. The amendment to the Companies Act, when viewed along with other provisions on electoral funding, seeks to equalize an individual and a company for the purposes of electoral funding., The ability of a company to influence the electoral process through political contributions is much higher when compared to that of an individual. A company has a much greater influence on the political process, both in terms of the quantum of money contributed to political parties and the purpose of making such contributions. Contributions made by individuals have a degree of support or affiliation to a political association. However, contributions made by companies are purely business transactions, made with the intent of securing benefits in return., In Citizens United v. Federal Election Commission, the issue before the Supreme Court of the United States was whether a corporation can use the general treasury funds to pay for electioneering communication. The majority held that limitations on corporate funding ban political speech through contributions based on the corporate identity of the contributor. Justice Steven, writing for the minority on the issue of corporate funding, observed that companies and natural persons cannot be treated alike for the purposes of political funding: In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by non‑residents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process., In view of the above discussion, we are of the opinion that companies and individuals cannot be equated for the purpose of political contributions., Before the amendment to Section 182, companies could only contribute a certain percentage of the net aggregate profits. The provision classified between loss‑making companies and profit‑making companies for the purpose of political contributions and for good reason. The underlying principle of this distinction was that it is more plausible that loss‑making companies will contribute to political parties with a quid pro quo and not for the purpose of income tax benefits. The provision, as amended by the Finance Act 2017, does not recognize that the harm of contributions by loss‑making companies in the form of quid pro quo is much higher. Thus, the amendment to Section 182 is also manifestly arbitrary for not making a distinction between profit‑making and loss‑making companies for the purposes of political contributions., Thus, the amendment to Section 182 is manifestly arbitrary for (a) treating political contributions by companies and individuals alike; (b) permitting the unregulated influence of companies in the governance and political process violating the principle of free and fair elections; and (c) treating contributions made by profit‑making and loss‑making companies to political parties alike. The observations made above must not be construed to mean that the Legislature cannot place a cap on the contributions made by individuals. The exposition is that the law must not treat companies and individual contributors alike because of the variance in the degree of harm on free and fair elections., In view of the discussion above, the following are our conclusions: a. The Electoral Bond Scheme, the proviso to Section 29C(1) of the Representation of the People Act 1951 as amended by Section 137 of the Finance Act 2017, Section 182(3) of the Companies Act as amended by Section 154 of the Finance Act 2017, and Section 13A(b) as amended by Section 11 of the Finance Act 2017 are violative of Article 19(1)(a) and unconstitutional; and b. The deletion of the proviso to Section 182(1) of the Companies Act permitting unlimited corporate contributions to political parties is arbitrary and violative of Article 14., We direct the disclosure of information on contributions received by political parties under the Electoral Bond Scheme to give logical and complete effect to our ruling. On 12 April 2019, the Supreme Court of India issued an interim order directing that the information of donations received and donations which will be received must be submitted by political parties to the Election Commission of India in a sealed cover. The Supreme Court of India directed that political parties submit detailed particulars of the donors as against each bond, the amount of each bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date on which each such credit was made., During the course of the hearing, Mr Amit Sharma, Counsel for the Election Commission of India, stated that the Election Commission of India had only collected information on contributions made in 2019 because a reading of Paragraph 14 of the interim order indicates that the direction was only limited to contributions made in that year. Paragraphs 13 and 14 of the interim order are extracted below: 13. In the above perspective, according to us, the just and proper interim direction would be to require all the political parties who have received donations through Electoral Bonds to submit to the Election Commission of India in sealed cover detailed particulars of the donors as against each bond; the amount of each such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit. 14. The above details will be furnished forthwith in respect of Electoral Bonds received by a political party till date. The details of such other bonds that may be received by such a political party up to the date fixed for issuing such bonds as per the Note of the Ministry of Finance dated 28 February 2019, i.e. 15 May 2019 will be submitted on or before 30 May 2019. The sealed covers will remain in the custody of the Election Commission of India and will abide by such orders as may be passed by the Court., Paragraph 14 of the interim order does not limit the operation of Paragraph 13. Paragraph 13 contains a direction in unequivocal terms to political parties to submit particulars of contributions received through Electoral Bonds to the Election Commission of India. Paragraph 14 only prescribes a timeline for the submission of particulars on contributions when the window for Electoral Bond contributions was open in 2019. In view of the interim direction of the Supreme Court of India, the Election Commission of India must have collected particulars of contributions made to political parties through Electoral Bonds., In view of our discussion above, the following directions are issued: a. The issuing bank shall herewith stop the issuance of Electoral Bonds; b. State Bank of India shall submit details of the Electoral Bonds purchased since the interim order of the Supreme Court of India dated 12 April 2019 till date to the Election Commission of India. The details shall include the date of purchase of each Electoral Bond, the name of the purchaser of the bond and the denomination of the Electoral Bond purchased; c. State Bank of India shall submit the details of political parties which have received contributions through Electoral Bonds since the interim order of the Supreme Court of India dated 12 April 2019 till date to the Election Commission of India. State Bank of India must disclose details of each Electoral Bond encashed by political parties which shall include the date of encashment and the denomination of the Electoral Bond; d. State Bank of India shall submit the above information to the Election Commission of India within three weeks from the date of this judgment, that is, by 6 March 2024; e. The Election Commission of India shall publish the information shared by the State Bank of India on its official website within one week of the receipt of the information, that is, by 13 March 2024; and f. Electoral Bonds which are within the validity period of fifteen days but that have not been encashed by the political party yet shall be returned by the political party or the purchaser depending on who is in possession of the bond to the issuing bank. The issuing bank, upon the return of the valid bond, shall refund the amount to the purchaser’s account., Writ petitions are disposed of in terms of the above judgment. Pending applications, if any, stand disposed of., Dr Dhananjaya Y Chandrachud, J; B Pardiwala, J; Manoj Misra, J. New Delhi; 15 February 2024., Section 29C, Representation of the People Act 1951 (as amended by Section 137 of the Finance Act 2017) – Declaration of donation received by political parties. (1) The treasurer of a political party or any other person authorized by the political party in this behalf shall, in each financial year, prepare a report in respect of the following: (a) the contribution in excess of twenty thousand rupees received by such political party from any person in that financial year; (b) the contribution in excess of twenty thousand rupees received by such political party from companies other than Government companies in that financial year, provided that nothing contained in this subsection shall apply to the contributions received by way of an electoral bond. Explanation: for the purposes of this subsection, electoral bond means a bond referred to in the Explanation to subsection (3) of section 31 of the Reserve Bank of India Act, 1934. (2) The report under subsection (1) shall be in such form as may be prescribed. (3) The report for a financial year under subsection (1) shall be submitted by the treasurer of a political party or any other person authorized by the political party in this behalf before the due date for furnishing a return of income of that financial year under section 139 of the Income Tax Act, 1961, to the Election Commission of India. (4) Where the treasurer of any political party or any other person authorized by the political party in this behalf fails to submit a report under subsection (3), then, notwithstanding anything contained in the Income Tax Act, 1961, such political party shall not be entitled to any tax relief under that Act., Section 182, Companies Act 2013 (as amended by Section 154 of the Finance Act 2017) – Prohibitions and restrictions regarding political contributions. (1) Notwithstanding anything contained in any other provision of this Act, a company, other than a Government company and a company which has been in existence for less than three financial years, may contribute any amount directly or indirectly to any political party, provided that no such contribution shall be made by a company unless a resolution authorising the making of such contribution is passed at a meeting of the Board of Directors and such resolution shall, subject to the other provisions of this section, be deemed to be justification in law for the making and the acceptance of the contribution authorised by it. (3) Every company shall disclose in its profit and loss account the total amount contributed by it under this section during the financial year to which the account relates. (3A) Notwithstanding anything contained in subsection (1), the contribution under this section shall not be made except by an account‑payee cheque drawn on a bank or an account‑payee bank draft or use of electronic clearing system through a bank account, provided that a company may make contribution through any instrument issued pursuant to any scheme notified under any law for the time being in force for contribution to political parties., Section 13A, Income Tax Act 1995 (as amended by Section 11 of the Finance Act 2017) – Special provision relating to incomes of political parties. Any income of a political party which is chargeable under the head “Income from house property” or “Income from other sources” or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party, provided that (a) such political party keeps and maintains books of account and other documents as would enable the Assessing Officer to properly deduce its income therefrom; (b) in respect of each such voluntary contribution in excess of ten thousand rupees, such political party keeps and maintains a record of such contribution and the name and address of the person who has made such contribution; and (c) the accounts of such political party are audited by an accountant as defined in the explanation below subsection (2) of section 288. Explanation: for the purposes of this section, “political party” means an association or body of individual citizens of India registered with the Election Commission of India as a political party under paragraph 3 of the Election Symbols (Reservation and Allotment) Order, 1968, and includes a political party deemed to be registered with that Commission., Section 31, Reserve Bank of India Act 1934 (as amended by Section 11 of the Finance Act 2017) – Issue of demand bills and notes. (1) No person in India other than the Bank or, as expressly authorized by this Act, the Central Government shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for the payment of money payable to bearer on demand, or borrow, owe or take up any sum of money on the bills, hundis or notes payable to bearer on demand of any such person, provided that cheques or drafts, including hundis, payable to bearer on demand or otherwise may be drawn on a person’s account with a banker, shroff or agent. (2) Notwithstanding anything contained in the Negotiable Instruments Act, 1881, no person in India other than the Bank or, as expressly authorized by this Act, the Central Government shall make or issue any promissory note expressed to be payable to the bearer of the instrument. (3) Notwithstanding anything contained in this section, the Central Government may authorise any scheduled bank to issue electoral bond. Explanation: for the purposes of this subsection, electoral bond means a bond issued by any scheduled bank under the scheme as may be notified by the Central Government., Conduct of Elections Rules, 1961 (Statutory Rules and Order) – Form to be filed with the Election Commission of India before the due date for furnishing a return of the political party’s income under section 139 of the Income Tax Act, 1961, together with a certificate to claim exemption. The form requires details such as name of political party, status (recognised/unrecognised), address of headquarters, date of registration with the Election Commission, PAN and income‑tax ward/circle, and details of contributions received in excess of twenty thousand rupees during the financial year, including donor name, address, PAN, amount, mode of contribution, and, where the contributor is a company, compliance with section 293A of the Companies Act, 1956., I have had the benefit of perusing the judgment authored by Dr D.Y. Chandrachud, the Honorable Chief Justice. I respectfully agree with the findings and conclusions recorded therein. However, since my reasoning is different to arrive at the same conclusion, including application of the doctrine of proportionality, I am penning down my separate opinion., Corporate funding of political parties has been a contentious issue with the legislature’s approach varying from time to time. The amendments to the Companies Act, 1956 reveal the spectrum of views of the legislature. It began with regulations and restrictions in 1960 to a complete ban on contributions to political parties in 1969. The ban was partially lifted in 1985 with restrictions and stipulations. The aggregate amount contributed to a political party in a financial year could not exceed five percent of the average net profit during the three immediately preceding financial years. A new condition stipulated that the board of directors, in their meeting, would pass a resolution giving legitimacy and authorisation to contributions to a political party., The Companies Act of 2013 replaced the Companies Act of 1956. Section 182(1) of the Companies Act 2013 permitted contributions by companies of any amount to any political party, if the company had been in existence for more than three financial years and was not a government company. The requirement of authorisation by board resolution is retained. The cap of five percent is enhanced to seven and a half percent of the average net profits during the three immediately preceding financial years. It is also mandated that the company must disclose the amount contributed to political parties in the profit and loss account, including particulars of the name of the political party and the amount contributed. In case of violation of the terms, penalties stand prescribed., The Finance Act 2017 made several amendments to the Companies Act 2013, Income Tax Act 1961, Reserve Bank of India Act 1934, the Representation of the People Act 1951, and the Foreign Contribution Regulation Act 2010. These changes were brought in to allow contributions and donations through Electoral Bonds. The specific changes are highlighted in the table reproduced below.
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Notwithstanding anything contained in sub‑section (1), the contribution under this section shall not be made except by an account payee cheque drawn on a bank or an account payee bank draft or use of electronic clearing system through a bank account: Provided that a company may make contribution through any instrument, issued pursuant to any scheme notified under any law for the time being in force, for contribution to the political parties., Section 13A of the Income Tax Act, 1961 (prior to amendment by the Finance Act, 2017; post amendment by Section 11 of the Finance Act, 2017) provides a special provision relating to incomes of political parties. Any income of a political party which is chargeable under the head Income from house property or Income from other sources or capital gains or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party, provided that (a) such political party keeps and maintains books of account and other documents as would enable the Assessing Officer to properly deduce its income therefrom; (b) in respect of each such voluntary contribution in excess of twenty thousand rupees, such political party keeps and maintains a record of such contribution and the name and address of the person who has made such contribution; and (c) the accounts of such political party are audited by an accountant as defined in the Explanation below sub‑section (2) of Section 288. Further, if the Treasurer of such political party or any other person authorised by that political party in this behalf fails to submit a report under sub‑section (3) of Section 29C of the Representation of the People Act, 1951 (43 of 1951) for a financial year, no exemption under this section shall be available for that political party for such financial year., Section 13A of the Income Tax Act, 1961 (as amended by the Finance Act, 2017) provides that any income of a political party which is chargeable under the head Income from house property or Income from other sources or capital gains or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party, provided that (a) such political party keeps and maintains books of account and other documents as would enable the Assessing Officer to properly deduce its income therefrom; (b) in respect of each such voluntary contribution other than contribution by way of electoral bond in excess of twenty thousand rupees, such political party keeps and maintains a record of such contribution and the name and address of the person who has made such contribution; (c) the accounts of such political party are audited by an accountant as defined in the Explanation below sub‑section (2) of Section 288; and (d) no donation exceeding two thousand rupees is received by such political party otherwise than by an account payee cheque drawn on a bank or an account payee bank draft or use of electronic clearing system through a bank account or through electoral bond. Explanation: For the purposes of this section, “political party” means a political party registered under Section 29A of the Representation of the People Act, 1951 (43 of 1951). Explanation: For the purposes of this proviso, “electoral bond” means a bond referred to in the Explanation to sub‑section (3) of Section 31 of the Reserve Bank of India Act, 1934 (2 of 1934). Further, if the Treasurer of such political party or any other person authorised by that political party in this behalf fails to submit a report under sub‑section (3) of Section 29C of the Representation of the People Act, 1951 (43 of 1951) for a financial year, no exemption under this section shall be available for that political party for such financial year. Also, such political party must furnish a return of income for the previous year in accordance with the provisions of sub‑section (4B) of Section 139 on or before the due date under that section., Section 31 of the Reserve Bank of India Act, 1934 (prior to amendment by the Finance Act, 2017; post amendment by Section 135 of the Finance Act, 2017) deals with the issue of demand bills and notes. (1) No person in India other than the Reserve Bank of India, or as expressly authorized by this Act the Central Government, shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for the payment of money payable to bearer on demand, or borrow, owe or take up any sum or sums of money on the bills, hundis or notes payable to bearer on demand of any such person, provided that cheques or drafts, including hundis, payable to bearer on demand or otherwise may be drawn on a person's account with a banker, shroff or agent. (2) Notwithstanding anything contained in the Negotiable Instruments Act, 1881 (26 of 1881), no person in India other than the Reserve Bank of India or, as expressly authorized by this Act, the Central Government shall make or issue any promissory note expressed to be payable to the bearer of the instrument. (3) Notwithstanding anything contained in this section, the Central Government may authorise any scheduled bank to issue electoral bond. Explanation: For the purposes of this sub‑section, “electoral bond” means a bond issued by any scheduled bank under the scheme as may be notified by the Central Government., Section 29C of the Representation of the People Act, 1951 (prior to amendment by the Finance Act, 2017; post amendment by Section 137 of the Finance Act, 2017) requires the treasurer of the political party or any other person authorised by the political party in this behalf, in each financial year, to prepare a report of (a) the contribution in excess of twenty thousand rupees received by such political party from any person in that financial year; and (b) the contribution in excess of twenty thousand rupees received by such political party from companies other than Government companies in that financial year. The report shall be in such form as may be prescribed. The report for a financial year shall be submitted by the treasurer or authorised person before the due date for furnishing a return of its income of that financial year under Section 139 of the Income Tax Act, 1961 to the Election Commission of India. Where the treasurer or authorised person fails to submit a report, then, notwithstanding anything contained in the Income Tax Act, 1961, such political party shall not be entitled to any tax relief under that Act. Nothing contained in this sub‑section shall apply to contributions received by way of an electoral bond., Section 2 of the Foreign Contribution Regulation Act, 2010 (prior to amendment by the Finance Act, 2017; post amendment by Section 236 of the Finance Act, 2017) defines foreign source to include (i) the Government of any foreign country or territory and any agency of such Government; (ii) any international agency, not being the United Nations or any of its specialised agencies, the World Bank, International Monetary Fund or such other agency as the Central Government may, by notification, specify; (iii) a foreign company; (iv) a corporation, not being a foreign company, incorporated in a foreign country or territory; (v) a multinational corporation referred to in sub‑clause (iv) of clause (g); and (vi) a company within the meaning of the Companies Act, 1956, of which more than one‑half of the nominal value of its share capital is held, either singly or in the aggregate, by one or more of the following: (A) the Government of a foreign country or territory; (B) the citizens of a foreign country or territory; (C) corporations incorporated in a foreign country or territory; (D) trusts, societies or other associations of individuals (whether incorporated or not) formed or registered in a foreign country or territory. Provided that where the nominal value of share capital is within the limits specified for foreign investment under the Foreign Exchange Management Act, 1999, or the rules or regulations made thereunder, then, notwithstanding the nominal value of share capital of a company being more than one‑half of such value at the time of making the contribution, such company shall not be a foreign source., The amended Companies Act, 2013 removes the cap on corporate funding. The requirement that the contribution will require a resolution passed at the meeting of the Board is retained. In the profit and loss account, a company is now only required to disclose the total amount contributed to political parties in a financial year. The requirement to disclose the specific amounts contributed and the names of the political parties is omitted. Section 182(3A), as introduced, stipulates that the company could contribute to a political party only by way of a cheque, Electronic Clearing System, or demand draft. The proviso to Section 182(3A) permits a company to contribute through any instrument issued pursuant to any scheme notified under the law, for the time being in force, for contribution to political parties. The first proviso to Section 182(1) of the Companies Act, 2013 has been omitted vide the Finance Act, 2017. Section 182(3) of the Companies Act, 2013 is referenced. For short, ECS. Section 182(3A) of the Companies Act, 2013 was introduced vide Section 154 of the Finance Act, 2017., Section 13A of the Income Tax Act, 1961 exempts income of political parties, including financial contributions and investments, from income tax. The object of providing a tax exemption is to increase the funds of political parties from legitimate sources. Conditions imposed require political parties to maintain books of accounts and other documents to enable the assessing officer to properly deduce their income. Political parties are required to maintain records of the name and addresses of persons who make voluntary contributions in excess of Rs 20,000. Accounts of the political parties are required to be audited., In 2003, Sections 80GGB and 80GGC were inserted in the Income Tax Act, 1961, permitting contributions to political parties. These contributions are tax deductible, though they are not expenditure for purposes of business, to incentivise contributions through banking channels. By the Finance Act, 2017, Section 13A of the Income Tax Act, 1961 was amended. Section 13A now stipulates that a political party is not required to maintain a record of the contributions received by ..., Further, donations over Rs 2,000 are only permitted through cheques, bank drafts, Electronic Clearing System or Bonds. Section 29C of the Representation of the People Act, 1951 was introduced in 2003. The section requires each political party to file a report for all contributions over Rs 20,000 to the Election Commission of India. The report is required to be filed before the due date of filing income tax returns of the financial year under the Income Tax Act, 1961. Failure to submit a report disqualifies a political party from any tax relief, as provided under the Income Tax Act, 1961. Section 29C of the Finance Act, 2017, as amended, stipulates that political parties are not required to disclose the details of contributions received by Bonds., Section 31(3) of the Reserve Bank of India Act, 1934 was added by the Finance Act, 2017 to effectuate the issuance of the Bonds which, as envisaged, are not to mention the name of the political party to whom they are payable, and hence are in the nature of bearer demand bill or note. On 02 January 2018, the Department of Economic Affairs, Ministry of Finance, notified the Electoral Bonds Scheme in terms of the Finance Act, 2017., The salient features of this Scheme are: Bonds are in the nature of a promissory note and bearer instrument. They do not carry the name of the buyer or payee. Bonds can be purchased by any person who is a citizen of India or who is a body corporate incorporated or established in India. An individual can purchase Bonds either singly or jointly with other individuals. Bonds are issued in denominations of Rs 1,000, Rs 10,000, Rs 1,00,000, Rs 10,00,000 and Rs 1,00,00,000. They are valid for a period of 15 days from the date of issue. The amount of Bonds not encashed within the validity period of 15 days would be deposited by the authorised bank to the Prime Minister Relief Fund. The Bond is non‑refundable., The Finance Act, 2017 has also amended and added Section 31(3) to the Reserve Bank of India Act, 1934 as the Bonds in question are bearer bonds like Indian currency. However, we do not think this amendment is required to be separately adjudicated as it merely effectuates the Bonds scheme., Paragraph 2(d) of the Scheme defines a person to include an individual, Hindu undivided family, company, firm, an association of persons or body of individuals, whether incorporated or not. It also includes every artificial judicial person and any agency, office or branch owned by such person. A person who wishes to purchase a Bond is required to apply in the specified format. Non‑compliant applications are to be rejected. To purchase Bonds, a buyer is required to apply to the authorised bank. Reserve Bank of India's Know Your Customer requirements apply and the authorised bank could ask for additional Know Your Customer documents, if necessary. The payments for the issuance of Bonds are required to be made in Indian rupees through demand draft, cheque, Electronic Clearing System or direct debit to the buyer's account. The identity and information furnished by the buyer for the issuance of Bonds is to be treated as confidential by the authorised issuing bank. The details, including identity, can be disclosed only when demanded by a competent court or on registration of any criminal case by any law enforcement agency., Only eligible political parties, meaning a party that is registered under Section 29A of the Representation of the People Act, 1951, and has secured not less than one percent of the votes polled in the last general election to the House of People or the Legislative Assembly, can receive a Bond. The eligible political party can encash the Bond through its bank account in the authorised bank. The Bonds are made available for purchase for a period of 10 days every quarter, in the months of January, April, July and October, as may be specified by the Central Government. They are also made available for an additional period of 30 days, as specified by the Central Government in a year where general elections to the House of People are held. The Bonds are not eligible for trading, and commission, brokerage or other charges are not chargeable/payable for issuance of a Bond. The value of the Bond is considered as income by way of voluntary contributions to eligible political parties for the purposes of tax exemption under Section 13A of the Income Tax Act, 1961., In the afore‑mentioned writ petitions filed under Article 32 of the Constitution of India, the petitioners are seeking a declaration that the Scheme and the relevant amendments made by the Finance Act, 2017, are unconstitutional., The question of the constitutional validity of the Scheme and the amendments introduced by the Finance Act, 2017 is being examined by us. The question of introducing these amendments through a money bill under Article 110 of the Constitution is not being examined by us. The scope of Article 110 of the Constitution has been referred to a seven‑judge Bench and is sub‑judice. Further, a batch of petitions challenging the amendments to the Foreign Contribution Regulation Act, 2010 by the Finance Acts of 2016 and 2018 are pending. The challenge to the said amendments is not being decided by us., I fully agree with the Honourable Chief Justice that the Scheme cannot be tested on the parameters applicable to economic policy. Matters of economic policy normally pertain to trade, business and commerce, whereas contributions to political parties relate to the democratic polity, citizens' right to know and accountability in our democracy. The primary objective of the Scheme, and relevant amendments introduced by the Finance Act, 2017, is electoral reform and not economic reform. Thus, the dictum and the principles enunciated by this Court in Swiss Ribbons (P.) Ltd. and Another v. Union of India and Others, and Pioneer Urban Land and Infrastructure and Another v. Union of India and Others, relating to judicial review on economic policy matters have no application to the present case. To give the legislation the latitude of economic policy, we would be diluting the principle of free and fair elections. Clearly, the importance of the issue and the nexus between money and electoral democracy requires us to undertake an in‑depth review, albeit under the settled powers of judicial review., Even otherwise, it is wrong to state as a principle that judicial review cannot be exercised over every matter pertaining to economic policy. The law is that the legislature has to be given latitude in matters of economic policy as they involve complex financial issues. The degree of deference to be shown by the court while exercising the power of judicial review cannot be put in a straitjacket., On the question of burden of proof, I respectfully agree with the observations made by the Honourable Chief Justice that once the petitioners are able to prima facie establish a breach of a fundamental right, then the onus is on the State to show that the right‑limiting measure pursues a proper purpose, has rational nexus with that purpose, the means adopted were necessary for achieving that purpose, and lastly proper balance has been incorporated., The doctrine of presumption of constitutionality has its limitations when we apply the test of proportionality. In a way the structured proportionality places an obligation on the State at a higher level, as it is a polycentric examination, both empirical and normative. While the courts do not pass a value judgment on contested questions of policy, and give weight and deference to the government decision by acknowledging the legislature's expertise to determine complex factual issues, the proportionality test is not based on preconceived notion or presumption. The standard of proof is a civil standard or a balance of probabilities; where scientific or social science evidence is available, it is examined; and where such evidence is inconclusive or does not exist and cannot be developed, reason and logic may suffice., The right to vote is a constitutional and statutory right grounded in Article 19(1)(a) of the Constitution, as the casting of a vote amounts to expression of an opinion by the voter. The citizens' right to know stems from this very right, as meaningfully exercising choice by voting requires information. Representatives elected as a result of the votes cast in their favour enact new, and amend existing laws, and when in power, take policy decisions. Access to information which can materially shape the citizens' choice is necessary for them to have a say in how their lives are affected. Thus, the right to know is paramount for free and fair elections and democracy., The decisions in Association for Democratic Reforms (supra) and People's Union of Civil Liberties (PUCL) (supra) should not be read as restricting the right to know the antecedents of a candidate contesting the elections. The political parties select candidates who contest elections on the symbol allotted to the respective political parties. Upon nomination, the candidates enjoy the patronage of the political parties, and are financed by them. The voters elect a candidate with the objective that the candidate's political party will come to power and fulfil the promises., The Honourable Chief Justice has referred to the Tenth Schedule of the Constitution. The Schedule incorporates a provision for the disqualification of candidates on the ground of defection, which reflects the importance of political parties in our democracy. Section 77 of the Representation of the People Act, 1951, requires monetary limits to be prescribed for expenditures incurred by candidates. As political parties are at the helm of the electoral process, including its finances, the argument that the right of the voter does not extend to knowing the funding of political parties and is restricted to antecedents of candidates would lead to an incongruity. I respectfully agree with the Honourable Chief Justice that denying voters the right to know the details of funding of political parties would lead to a dichotomous situation. The funding of political parties cannot be treated differently from that of the candidates who contest elections., Democratic legitimacy is drawn not only from representative democracy but also through the maintenance of an efficient participatory democracy. In the absence of fair and effective participation of all stakeholders, the notion of representation in a democracy would be rendered hollow. In a democratic set‑up, public participation is meant to fulfil three functions: the epistemic function of ensuring reasonably sound decisions; the ethical function of advancing mutual respect among citizens; and the democratic function of promoting an inclusive process of collective choice. James Fishkin lists five criteria which define the quality of a deliberative process. These are: Information (the extent to which participants are given access to accurate and reliable information); ...
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The State has contested the writ petitions primarily on three grounds. First, donors of a political party often apprehend retribution from other political parties or actors and thus their identities should remain anonymous. The electoral bonds uphold the right to privacy of donors by providing confidentiality. Further, donating money to a preferred political party is a matter of self‑expression by the donor. Therefore, revealing the identity invades the informational privacy of donors protected by the Constitution. The identity of the donor can be revealed only in exceptional cases, for instance on directions of a competent court, or registration of a criminal case by any law enforcement agency. Second, the Scheme, by incentivising banking channels and providing confidentiality, checks the use of black or unaccounted money in political contributions. Third, the Scheme is an improvement to the prior legal framework. It has inbuilt safeguards such as compliance of donors with Know Your Customer norms, bearer bonds having a limited validity of fifteen days and recipients belonging to a recognised political party that has secured more than one percent votes in the last general elections., The Hon'ble Chief Justice has rejected the Union of India's submissions by applying the doctrine of proportionality. This principle is applied by courts when they exercise their power of judicial review in cases involving a restriction on fundamental rights. It is applied to strike an appropriate balance between the fundamental right and the pursued purpose and objective of the restriction., The test of proportionality comprises four steps. The first step is to examine whether the act or measure restricting the fundamental right has a legitimate aim. The second step is to examine whether the restriction has a rational connection with the aim. The third step is to examine whether there should have been a less restrictive alternate measure that is equally effective. The fourth step is to strike an appropriate balance between the fundamental right and the pursued public purpose., In Modern Dental College & Research Centre and Others v. State of Madhya Pradesh and Others, the Supreme Court of India applied proportionality in its four‑part doctrinal form as a standard for reviewing right limitations in India., This test was modified in K.S. Puttaswamy (Retired) and Anr. (Aadhaar) v. Union of India, where the Supreme Court of India adopted a more tempered approach. The Court, inter alia, imposed a stricter test for the third and fourth prongs, namely necessity and balancing stages of the test of proportionality, as reproduced below. In order to preserve a meaningful but not unduly strict role for the necessity stage, Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test is not whether each respective measure realises the governmental objective to the same extent, but whether it realises it in a real and substantial manner. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether, in light of the findings of the previous steps, there exists an alternative which is preferable; this judgment goes beyond the strict means‑ends assessment and requires a form of balancing to be carried out at the necessity stage., The test was also referred to in Anuradha Bhasin v. Union of India, with the observation that the principle of proportionality is inherently embedded in the Constitution under the doctrine of reasonable restriction. This means that limitations imposed on a right should not be arbitrary or excessive beyond what is required in the interest of the public. The Court accepted the suggestion in favour of a moderate interpretation of the necessity test. Necessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. The process requires the Court to reason through the various stages of moderate interpretation of necessity in the following manner: (MN1) All feasible alternatives need to be identified, with courts being explicit as to criteria of feasibility; (MN2) The relationship between the government measure, the alternatives identified in MN1 and the objective sought to be achieved must be determined, retaining only those alternatives that realise the objective in a real and substantial manner; (MN3) The differing impact of the measure and the alternatives upon fundamental rights must be determined, recognising an approximate impact; and (MN4) Given the findings in MN2 and MN3, an overall comparison and balancing exercise must be undertaken between the measure and the alternatives to decide whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights., Dr. Justice D.Y. Chandrachud, as his Lordship then was, in K.S. Puttaswamy (Aadhaar) observed that the objective of the second prong of the rational connection test is essential to the test of proportionality. Justice Sanjay Kishan Kaul, in his concurring opinion in K.S. Puttaswamy (Privacy) held that actions not only should be sanctioned by law, but the proposed actions must be necessary in a democratic society for a legitimate aim. The extent of interference must be proportionate to the need for such interference and there must be procedural guarantees against abuse of such interference., The test of proportionality is now widely recognised and employed by courts in various jurisdictions such as Germany, Canada, South Africa, Australia and the United Kingdom. However, there is not uniformity in how the test is applied or the method of using the last two prongs in these jurisdictions., The first two prongs of proportionality resemble a means‑ends review of the traditional reasonableness analysis, and they are applied relatively consistently across jurisdictions. Courts first determine if the ends of the restriction serve a legitimate purpose, and then assess whether the proposed restriction is a suitable means for furthering the same ends, meaning it has a rational connection with the purpose., In the third prong, courts examine whether the restriction is necessary to achieve the desired end. When assessing the necessity of the measure, the courts consider whether a less intrusive alternative is available to achieve the same ends, aiming for minimal impairment. The Supreme Court of India, relying on suggestions given by some jurists, emphasized the need to employ a moderate interpretation of the necessity prong., We will now delve into the fourth prong, the balancing stage, in some detail. This stage has been a matter of debate amongst jurists and courts. Some jurists believe that balancing is ambiguous and value‑based. This stems from the premise of rule‑based legal adjudication, where courts determine entitlements rather than balancing interests. However, proportionality is a standard‑based review rather than a rule‑based one. Given the diversity of factual scenarios, the balancing stage enables judges to consider various factors by analysing them against the standards proposed by the four prongs of proportionality. This ensures that all aspects of a case are carefully weighed in decision‑making. The perspective finds support in the work of jurists who believe that constitutional rights and restrictions are both principles, and thus they should be optimised and balanced to their fullest extent., While balancing is integral to the standard of proportionality, such an exercise should be rooted in empirical data and evidence. In most countries that adopt the proportionality test, the State places on record empirical data as evidence supporting the enactment and justification for the encroachment of rights. This is essential because the proportionality enquiry necessitates objective evaluation of conflicting values rather than relying on perceptions and biases. Empirical deference is given to the legislature owing to its institutional competence and expertise to determine complex factual legislation and policies. However, factors like lack of parliamentary deliberation and a failure to make relevant enquiries weigh in on the Court's decision. In the absence of data and figures, there is a lack of standards by which proportionality stricto sensu can be determined., In Germany, the courts enjoy a high judicial discretion. The parliament and the judiciary in Germany have the same goal, that is, to realise the values of the German Constitution. Canadian courts, in practice, give wider discretion to the legislature when a restriction is backed by sufficient data and evidence. The constitutional court in South Africa, as per some jurists, collectively applies the four prongs of proportionality instead of a structured application. While proportionality is the predominant doctrine in Australia, an alternate calibrated scrutiny test is applied by a few judges. It is based on the premise that a contextual, instead of a broad standard of review, is required to be adopted for constitutional adjudication., Findings of empirical legal studies provide a more solid foundation for normative reasoning and enhance understanding of the relationship between means and ends. In our view, proportionality analyses would be more accurate when empirical inquiries on causal relations between a legislative measure under review and the ends of such a measure are considered. It also leads to better and more democratic governance. While one cannot jump from is to ought, to reach an ought conclusion, one has to rely on accurate knowledge of is, for is and ought to be united. We emphasise the need of addressing the quantitative and empirical deficit for a contextual and holistic balancing analysis, while being mindful of the pitfalls of selective data sharing. After all, if a measure becomes a target, it ceases to be a good measure., To avoid this judgment from becoming complex, a chart giving different viewpoints on the doctrine of proportionality as a test for judicial review exercised by the courts is enclosed as Annexure A to this judgment., When we turn to the reply or the defence of the Union of India in the present case, the matter of concern is the first submission made regarding the purpose and rationale of the Scheme and amendments to the Finance Act of 2017. The transcript of the hearing dated 01 November 2023 records the Union of India's submission: 'The bottom line is this. What was really found? That what is the reason why a person who contributes to a political party chooses the mode of unclean money as a payment mode? Your Lordships would immediately agree with me if we go by the practicalities of life. Suppose one state is going for an election. There are two parties, there are multiple parties, but by and large there are two parties which go neck to neck. Suppose I am a contractor. I am not a company or anything. I am a contractor and I am supposed to give my political contribution to Party A or Party B as the case may be. But the fear was if I give by way of accounted money or by clean money, by way of cheque, it would be easily identifiable. If I give to Party A and Party B forms the Government, I would be facing victimisation and retribution and vice versa. If I give money to Party B and Party A continues to be in Government, then I would be facing retribution or victimisation. Therefore, the safest course was to pay by cash, so that none of the parties know what I paid to which party, and both parties are happy that I have paid something. So, the payment by cash ensured confidentiality. Parties would say that one party would be given one hundred crores, another party would be given forty crores, depending upon my assessment of their winnability. But both would not know who is paid what. Sometimes what used to happen is in my business I get only clean money or a substantial part of the clean money, but practicalities require that I contribute to the political parties, and practicality again requires that I contribute with a degree of confidentiality so that I am not victimised in the future. Therefore clean money was converted into unclean money. White money is being converted into black money so that it can be paid, according to them anonymously, and according to me with confidentiality. And this is disastrous for the economy when white money is converted into black money.', It was stated during the introduction of the Finance Act of 2017 that the main purpose of the Scheme was to curb the flow of black money in electoral finance. It was asserted that this could be achieved only if information about political donations and the donor were kept confidential. It was believed that this would incentivise donations to political parties through banking channels., I am of the opinion that retribution, victimisation or retaliation cannot by any stretch be treated as a legitimate aim. This will not satisfy the legitimate purpose prong of the proportionality test. Neither is the Scheme nor the amendments to the Finance Act, 2017, rationally connected to the fulfilment of that purpose, namely to counter retribution, victimisation or retaliation in political donations. In our opinion, it will also not satisfy the necessity stage of the proportionality even if we ignore the balancing stage., Retribution, victimisation or retaliation against any donor exercising their choice to donate to a political party is an abuse of law and power. The wrong itself cannot be a justification or a purpose. The argument therefore suffers on the grounds of inconsistency and coherence as it seeks to perpetuate and accept the wrong rather than deal with the malady and correct it. The inconsistency is also apparent as the change in law, by giving a cloak of secrecy, leads to severe restriction and curtailment of the collective right to information and the right to know, which is a check against retribution, victimisation and retaliation. Transparency and not secrecy is the cure and antidote., Similarly, the second argument that the donor may like to keep his identity anonymous is a mere ipse dixit assumption. The plea of infringement of the right to privacy has no application if the donor makes the contribution, that too through a banking channel, to a political party. It is the transaction between the donor and the third person. The fact that a donation has been made to a political party has to be specified and is not left hidden and concealed. What is not revealed is the quantum of the contribution and the political party to which the contribution is made. When a donor purchases a bond, he has to provide full particulars and fulfil the Know Your Customer norms of the bank. His identity is then asymmetrically known to the person and the officers of the bank from where the bond is purchased. Similarly, the officers in the branch of the authorised bank where the political party has an account and encashes the bond are known to the officers in the said bank., The argument raised by the Union of India that details can be revealed when an order is passed by a court or when it is required for investigation pursuant to registration of a criminal case overlooks the fact that the underlying reason for concealing the identities of contributors is fear of retaliation, victimisation and reprisal. That fear would still exist as the identity of the purchaser of the bond can always be revealed upon registration of a criminal case or by an order or direction of the court. Thus, the fear of reprisal and vindictiveness does not evaporate. The so‑called protection exists only on paper but in practical terms is not a good safeguard even if we accept that the purpose is legitimate. It fails the rational nexus prong., The fear of the identities of donors being revealed exists in another manner. Under the Scheme, political parties in power may have asymmetric access to information with the authorised bank. They also retain the ability to use their power and authority of investigation to compel the revelation of bond‑related information. Thus, the entire objective of the Scheme is contradictory and inconsistent., It is the case of the Union of India that parties in power at the Centre and State are the recipients of the highest amounts of donations through bonds. If that is the case, the argument of retribution, victimisation and retaliation is tempered and loses much of its force., The rational connection test fails since the purpose of curtailing black or unaccounted‑for money in the electoral process has no connection or relationship with the concealment of the identity of the donor. Payment through banking channels is easy and an existing antidote. On the other hand, obfuscation of the details may lead to unaccounted and laundered money being legitimised., The Reserve Bank of India had objected to the Scheme since the bonds could change hands after they have been issued. There is no check for the same as the purchaser who has completed the Know Your Customer process, whose identity is thereafter completely concealed, may not be the actual contributor or donor. In fact, the Scheme may enable the actual contributor or donor to leave no traceability or money trail., Money laundering can be undertaken in diverse ways. Political contributions for a quid pro quo may amount to money laundering, as defined under the Prevention of Money Laundering Act, 2002. The Financial Action Task Force has observed that the signatory states are required to check money laundering on account of contributions made to political parties. Article seven paragraph three of the United Nations Convention against Corruption, 2003 mandates the state parties to enhance transparency in political funding of the candidates and parties. The convention is signed and ratified by India. By ensuring anonymity, the policy ensures that money laundered on account of quid pro quo or illegal connection escapes the eyes of the public., The economic policies of the government have an impact on business and commerce. Political pressure groups promote different agendas, including perspectives on economic policies. As long as the pressure groups put forward their perspective with evidence and data, there should not be any objection even if they interact with elected representatives. The position would be different if monetary contributions to political parties were made as a quid pro quo to secure a favourable economic policy. This would be an offence under the Prevention of Corruption Act, 1988 and also under the Prevention of Money Laundering Act. Such offences when committed by political parties in power can never see the light of day if secrecy and anonymity of the donor is maintained., In view of the aforesaid observations, the argument raised by the petitioners that there is no rational connection between the measure and the purpose, which is also illegitimate, has merit and should be accepted., On the question of alternative measures, that is the necessity prong of the proportionality test, it is accepted that post the amendments brought about by the Finance Act, 2017, political parties cannot receive donations in cash for amounts above two thousand rupees. However, political parties do not have to record the details and particulars of donations received for amounts less than twenty thousand rupees. Therefore, the reduction of the upper limit of cash donations from twenty thousand rupees to two thousand rupees serves no purpose. It is open to the political parties to bifurcate the law and camouflage larger donations in smaller stacks. There is no way or method to verify the donor if the amount shown in the books of the political party is less than two thousand rupees., It is an accepted position that the Electoral Trust Scheme was introduced in 2013 to ensure the secrecy of contributors. As per the Trust Scheme, contributions could be made by a person or body corporate to the trust. The trust would thereafter transfer the amount to the political party. The trust is therefore treated as the contributor to the political party.
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The Election Commission of India issued guidelines dated 06.06.2014 whereby the trusts were required to specify and give full particulars to the Election Commission of India of the depositors with the trust and the amounts subsequently transferred as a contribution to the political party. The guidelines were issued by the Election Commission of India to ensure transparency and openness in the electoral process. The trust can have multiple donors and similarly contributions are made by the trust to multiple political parties. The disclosure requirements provided in the Election Commission of India's guidelines dated 06.06.2014 only impose disclosure requirements at the inflow and outflow points of the trust's donations, that is, the trust is required to provide particulars of its depositors and the amounts donated to political parties, including the names of the political parties., Thus, the Trust Scheme protects the anonymity of the donors vis-à-vis their contributions to the political party. When we apply the necessity test propounded in Anuradha Bhasin (supra), the Trust Scheme is examined for whether it achieves the objective of the Union of India in a real and substantial manner and is also a less restrictive alternate measure in view of the disclosure requirements, viz. the right to know of voters. The Trust Scheme is in force and is a result of the legislative process. In a comparison of limited alternatives, it is a measure that best realises the objective of the Union of India without significantly impacting the fundamental right of the voter to know. The Election Commission of India, if required, can suitably modify the guidelines dated 06.06.2014., Similarly, early campaign finance laws in the United Kingdom permitted trusts to donate to political parties. This practice was later disallowed as it was contrary to openness and accountability. See Suchindran Bhaskar Narayan and Lalit Panda, Money and Elections: Necessary Reforms in Electoral Finance, Vidhi 2018 at p. 19, and Lord Neill of Bladen, QC, Fifth Report of the Committee on Standards in Public Life: The Funding of Political Parties in the United Kingdom, 1998, pp. 61‑62., As elaborated in paragraph 27 of the judgment, Anuradha Bhasin (supra) proposes a four‑sub‑pronged inquiry at the necessity stage of proportionality, that is, (MN1) to (MN4). To arrive at the conclusion of the necessity inquiry, the Supreme Court of India has proposed at (MN4) that an overall comparison and balancing exercise must be undertaken between the measure and the alternatives. A judgment must be made whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights (the comparative component)., I would now come to the fourth prong. I would begin by first referring to the judgment cited by Honorable the Chief Justice in the case of Campbell v. MGM Limited (supra). This judgment adopts a double proportionality standard to adequately balance two conflicting fundamental rights., In Campbell (supra), Baroness Hale suggested a three‑step approach to balance conflicting fundamental rights when two rights are in play. The first step is to analyse the comparative importance of the fundamental rights being claimed in the particular case. In the second step, the court should consider the justification for interfering with or restricting each of the said rights. The third step requires the application of a proportionality standard to both these rights., In a subsequent decision, the House of Lords (Lord Steyn) in In re S (supra) distilled four principles to resolve the question of conflict of rights: First, neither article has precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Third, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test., The fourth principle, that is, the ultimate balancing test, was elaborated upon by Sir Mark Potter in In Re W (supra) in the following terms: each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each., Fundamental rights are not absolute; legislations or policies restricting the rights may be enacted in accordance with the scheme of the Constitution. However, it is now well settled that the provisions of fundamental rights in Part III of the Constitution are not independent silos and have to be read together as complementary rights. Therefore, the thread of reasonableness applies to all such restrictions. Article 14, as observed by the Honorable Chief Justice, includes the facet of formal equality and substantive equality. Thus, the principle of equal protection of law requires the legislature and the executive to achieve factual equality. This principle can be extended to any restriction on fundamental rights which must be reasonable to the identified degree of harm. If the restriction is unreasonable, unjust or arbitrary, then the law should be struck down., When we apply the fourth prong, that is the balancing prong of proportionality, I have no hesitation that the Scheme falls foul and overwhelmingly negates the voters' right in an electoral process. Neither the right of privacy nor the purpose of incentivising donations to political parties through banking channels justifies the infringement of the right of voters. The voters' right to know and access to information is far too important in a democratic set‑up to be curtailed on the pretext of privacy and the desire to check the flow of unaccounted money to political parties. While secret ballots are integral to free and fair elections, transparency—not secrecy—in funding of political parties is a prerequisite for free and fair elections. The confidentiality of the voting booth does not extend to anonymity in contributions to political parties., In K.S. Puttasamy (9‑J) (Privacy) (supra), all opinions accept that the right to privacy has to be tested and is not absolute. The right to privacy must yield in given circumstances when dissemination of information is legitimate and required in state or public interest. Therefore, the right to privacy is to be applied by balancing the said right with social or public interest. The reasonableness of the restriction should not outweigh the particular aspect of privacy claimed. Justice Sanjay Kishan Kaul, in his opinion in K.S. Puttasamy (9‑J) (Privacy) (supra), has said that restriction on the right to privacy may be justifiable and is subject to the principle of proportionality when considering the right to privacy in relation to its function in society., As observed above, the right to privacy operates in the personal realm, but as the person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks contextually. In this context, the High Court of South Africa in My Vote Counts NPC v. President of the Republic of South Africa and Ors (2017) observes that, given the public nature of political parties and the fact that the private funds they receive have a distinctly public purpose, their rights to privacy can justifiably be attenuated. The same principles must, as a necessary corollary, apply to their donors., The great underlying principle of the Constitution is that rights of individuals in a democratic set‑up are sufficiently secured by ensuring each a share in political power. This right gets affected when a few make large political donations to secure selective access to those in power. Pressure groups that exert such persuasion within the boundaries of law are noted, but when money is exchanged as quid pro quo the line between persuasion and corruption becomes blurred., It is in this context that the High Court of Australia in Jeffery Raymond McCloy and Others v. State of New South Wales and Another (supra) observes that corruption can be of different kinds. When a wealthy donor makes a contribution to a political party in return for a benefit, it is described as quid pro quo corruption. More subtle corruption arises when those in power decide issues not on merits or the desires of their constituencies, but according to the wishes of large contributors. This kind of corruption is described as clientelism. It can arise from dependence on the financial support of a wealthy patron to a degree that it compromises the expectation, fundamental to representative democracy, that public power will be exercised in public interest. This affects the vitality and integrity of the political branches of government. While quid pro quo and clientelistic corruption erode the quality and integrity of government decision‑making, the power of money may also pose a threat to the electoral process itself. This phenomenon is referred to as war‑chest corruption., In Jefferey Raymond (supra), the High Court of Australia referred to the decision of the Supreme Court of Canada in Harper v. Canada (Attorney General) (supra), which upheld the legislative restriction on electoral advertising. The Supreme Court of Canada held that the State can provide a voice to those who otherwise might not be heard and can also restrict voices that dominate political discourse so that others can be heard as well., The Supreme Court of the United States in Buckley v. R. Valeo (1976) commented on the concern of quid pro quo arrangements and their dangers to a fair and effective government. Improper influence erodes confidence in the system of representative government. Conversely, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent. This helps the voter evaluate candidates, identify interests to which candidates are likely to be responsive, and check actual corruption by exposing large contributions and expenditures to public scrutiny. Relying upon Grosjean v. American Press Co., it holds that informed public opinion is the most potent restraint upon misgovernment. Record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations., In NixON, Attorney General of Missouri et al v. Shrink Missouri Government PAC et al (2021), the Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermine the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This affects the integrity of the electoral process not only through corruption or quid pro quo arrangements but also by making the beneficiary too compliant with the wishes of large contributors., Recently, a five‑judge Constitution Bench of the Supreme Court of India in Anoop Baranwal v. Union of India (2023) highlighted the importance of purity of the electoral process. The Court observed that without attaining power, political parties cannot achieve their goals; power becomes a means to an end. The goal can only be to govern so that the lofty aims enshrined in the directive principles are achieved while observing fundamental rights and the mandate of all laws. The pollution of the electoral process that precedes the gaining of power cannot be justified by the ends. The strength and credibility of a democracy depend upon the means employed to gain power being as fair as the conduct of government after the assumption of power., The Law Commission of India, in its 255th Report (March 2015), noted the concern that financial superiority can translate into electoral advantage. It observed that lobbying and capture give undue importance to big donors and certain interest groups at the expense of the ordinary citizen, violating the right of equal participation of each citizen in the polity. While noting the candidate‑party dichotomy in the regulations under Section 77 of the Representation of the People Act, 1951, the Law Commission recommends requiring candidates to maintain an account of contributions received from their political party (not in cash) or any other permissible donor., At this stage, we refer to the data available on the website of the Election Commission of India and the data submitted by the petitioners for a limited purpose to support our reasoning while applying balancing. We have not stricto sensu applied proportionality as the data is not sufficient for us. I also clarify that we have not opened the sealed envelope given by the Election Commission of India pursuant to the directions of this Court dated 02.11.2023., An analysis of the annual audit reports of political parties from 2017‑18 to 2022‑23 showcases party‑wise donations received through the Electoral Bonds. The table indicates that the majority of contributions through Bonds have gone to political parties which are ruling parties in the Centre and the States, and there has been a substantial increase in contribution/donation through Bonds., The petitioner Association for Democratic Reforms submitted a table which showcases party‑wise donation by corporate houses to national parties from 2016‑17 to 2021‑22. The data shows that the party‑wise donation by corporate houses has been more or less stagnant over these years. We do not have official comments from the Union of India or the Election Commission of India. The figures support our conclusion, but I would not, without certainty, base my analysis solely on these figures., We have data of denomination/sale of Electoral Bonds, as submitted by the petitioners, during the 27 phases from March 2018 to July 2023: 1 Crore – 12,999 bonds (54.13%) amounting to Rs 12,999 crore; 10 Lakhs – 7,618 bonds (31.72%) amounting to Rs 761.80 crore; 1 Lakh – 3,088 bonds (12.86%) amounting to Rs 30.88 crore; 10 Thousand – 208 bonds (0.86%) amounting to Rs 20.80 lakh; 1 Thousand – 99 bonds. Total bonds sold: 24,012 amounting to Rs 13,791.8979 crore. Analysis shows that more than 50 % of the bonds in number, and 94 % of the bonds in value terms were for Rs 1 crore. This indicates the quantum of corporate funding through the anonymous bonds., The share of income from unknown sources for national parties rose from 66 % during 2014‑15 to 2016‑17 to 72 % during 2018‑19 to 2021‑22. Between 2019‑20 and 2021‑22, bond income constituted 81 % of the total unknown income of national parties. The total unknown income, i.e., donations made under Rs 20,000, sale of coupons etc., increased from Rs 2,550 crore during 2014‑15 to 2016‑17 to Rs 8,489 crore during 2018‑19 to 2021‑22. Total income of national political parties without other known sources increased from Rs 3,864 crore to Rs 11,829 crore over the same periods. Bond income between 2018‑19 and 2021‑22 constitutes 58 % of the total income of national political parties., Based on the analysis of the data currently available, together with the observation that voters' right to know supersedes anonymity in political party funding, I conclude that the Scheme fails to meet the balancing prong of the proportionality test. I have not applied proportionality stricto sensu due to the limited availability of data and evidence., I respectfully agree with the reasoning and the finding recorded by Honorable the Chief Justice, holding that the amendment to Section 182 of the Companies Act, deleting the first proviso thereunder, should be struck down. While doing so, I apply the principle of proportionality, which subsumes the test of manifest arbitrariness. The claim of privacy by a corporate or a public limited company would be on very limited grounds, possibly to protect the privacy of individuals responsible for conducting the business. It would be difficult for a public or private limited company to claim a violation of privacy as its affairs have to be open to shareholders and the public., In consonance with the above reasoning and on application of the doctrine of proportionality, the proviso to Section 29C(1) of the Representation of the People Act, 1951, Section 182(3) of the Companies Act, 2013 (as amended by the Finance Act 2017), Section 13A(b) of the Income Tax Act, 1961 (as amended by the Finance Act 2017), and Section 31(3) of the Reserve Bank of India Act, 1934 (as amended by the Finance Act 2017) are held to be unconstitutional., The petitioners have not argued that corporate donations should be prohibited. However, some petitioners submitted that coercive threats are used to extract money from businesses as contributions virtually as protection money, that major opposition parties may be given smaller amounts to keep them happy, and that there should be a cap on the quantum of donations with funds stipulated for political purposes. Suggestions were also made that corporate funds should be accumulated and the corpus equitably distributed amongst national and regional parties. I have not examined these aspects in depth, but the issues raised require examination and study., By an interim order dated 26.03.2021, the Supreme Court of India, in the context of contributions made by companies through bonds, observed that the voter would be able to secure information about the funding by matching the aggregate sum contributed by the company, as required to be disclosed under Section 182(3) of the Companies Act (as amended by the Finance Act 2017), with the information disclosed by the political party. Justice D.Y. Chandrachud, Honorable the Chief Justice, rightly observes that this exercise would not reveal the particulars of donations, including the name of the donor., By the order dated 02.11.2023, this Court asked the Election Commission of India to comply with the interim order of this Court dated 12.04.2019. The order directed that all political parties that have received donations through Electoral Bonds submit to the Election Commission of India in sealed cover detailed particulars of the donors for each bond, the amount of each bond, and the full particulars of the credit received against each bond, namely, the bank account details and the date of each credit. The intent of the order dated 12.04.2019 is that the Election Commission of India will continue to maintain full particulars of the donors against each bond., In view of the findings recorded above, I direct the Election Commission of India to disclose the full particular details of the donor and the amount donated to the particular political party through bonds. This direction is restricted to any donations made on or after the interim order dated 12.04.2019. The donors/purchasers are unknown and not parties; the principle of lis pendens applies, and it is obvious that the donors/purchasers are aware of the present litigation, so they cannot claim surprise., I therefore respectfully agree and conclude that: (i) the Scheme is unconstitutional and is struck down; (ii) the proviso to Section 29C(1) of the Representation of the People Act, Section 182(3) of the Companies Act, 2013, and Section 13A(b) of the Income Tax Act, 1961, as amended by the Finance Act, 2017, are unconstitutional and are struck down; (iii) deletion of the proviso to Section 182(1) of the Companies Act, 2013, thereby permitting unlimited contributions to political parties, is unconstitutional and is struck down; (iv) sub‑section (3) to Section 31 of the Reserve Bank of India Act, 1934 and the Explanation thereto introduced by the Finance Act, 2017 are unconstitutional and are struck down; (v) the Election Commission of India will ascertain the details from the political parties and the State Bank of India, which has issued the bonds, and the bankers of the political parties and thereafter disclose the names of the donor/purchaser of the bonds and the amounts donated to the political party, to be completed as per the timelines fixed by the Honorable the Chief Justice; (vi) henceforth, as the Scheme has been declared unconstitutional, the issuance of fresh bonds is prohibited; (vii) if bonds issued within the validity period are with the donor/purchaser, the donor/purchaser may return them to the authorised bank for refund; if the bonds are with the donee/political party, the party will return the bonds to the issuing bank, which will then refund the amount to the donor/purchaser. On failure, the amount will be credited to the Prime Minister's Relief Fund. The writ petitions are allowed and disposed of in the above terms., Annexure‑A – Standards of Review – Proportionality & Alternatives. Proportionality is a standard‑based model. It allows factual and contextual flexibility to judges who encounter diverse factual scenarios to analyse and decide the outcome of factual clashes against the standards. Proportionality, particularly its balancing prong, has been criticized by jurists who contend that legal adjudication should be rule‑based rather than principle‑based. They argue that this provides legal certainty by virtue of rules being definitive in nature. In response, jurists in favour of balancing contend that neither rules nor principles are definitive but rather prima facie. Therefore, both rights and legislations or policies are required to be balanced and realised to the optimum possible extent.
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This jurisprudential clash is visible in the various forms and structures of adoptions of proportionality. Generally, two models can be differentiated from works of jurists. Model I: Firstly, the traditional two stages of the means‑end comparison is applied. After having ascertained the legitimate purpose of the law, the judge asks whether the imposed restriction is a suitable means of furthering this purpose (rational connection). Additionally in this model, the judge ascertains whether the restriction was necessary to achieve the desired end. The reasoning focuses on whether a less intrusive means existed to achieve the same ends (minimal impairment/necessity). Francisco J. Urbina, A Critique of Proportionality, American Journal of Jurisprudence, Volume 57, 2012. Also see Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013), pages 41‑42. Robert Alexy, A Theory of Constitutional Rights, translated by Julian Rivers, first published 2002, Oxford University Press 2010, pages 47‑48., Model II: This model adds a fourth step to the first model, namely the balancing stage, which weighs the seriousness of the infringement against the importance and urgency of the factors that justify it. In the table provided below, we have summarised the different models of proportionality and its alternatives, as propounded by jurists and adopted by courts internationally. We have also summarized other traditional standards of review such as the means‑ends test and Wednesbury unreasonableness for contextual clarity. In the last column we have captured the relevant criticisms, as propounded by jurists, to each such model., Four‑stage Proportionality: In this model, all four prongs of the proportionality test are employed, including the final balancing stage. According to Robert Alexy, values and interests (rights of citizens and objects of legislation or policy) are both principles and principles are optimisation requirements. Balancing was adopted by the German Constitutional Court in the 1950s as a new methodology for intensive judicial review of rights‑restricting legislation. The main premise of the criticisms of balancing is the wide discretion available to judges. Three contemporary criticisms are: it leads to a comparison of incommensurable values; it fails to create predictability in the legal system; and it is potentially dangerous for human rights and equally intrusive from a separation‑of‑powers perspective. Robert Alexy, A Theory of Constitutional Rights (Julian Rivers, trans. Oxford University Press 2002). Francisco J. Urbina, Is It Really That Easy? A Critique of Proportionality and Balancing as Reasoning, Canadian Journal of Law and Jurisprudence, 2014; Bernhard Schlink, Abwägung im Verfassungsrecht, Duncker & Humblot, 1976., The constitution posits an original idea of values, and the government and courts both have a duty to realise these values. Critics argue that balancing can be potentially dangerous for human rights and is equally intrusive from the perspective of separation of powers. Article 1 and 20, Basic Law for the Federal Republic of Germany. Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to Realisation of Collective and Individual Self Determination, Reasoning Rights Comparative Judicial Engagement, edited by Liaora Lazarus., Alexy proposes the weight formula, which quantifies competing values (rights of individuals) and interests (objectives of legislation or policy) by reducing them to numbers. It is a method of thinking about conflicting values and interests. W1.2 represents the concrete weight of principle P1 relative to the colliding principle P2. I1 stands for intensity of interference with P1; I2 stands for importance of satisfying the colliding principle P2. W1 and W2 stand for abstract weights of colliding principles (P1 and P2). When abstract weights are equal, as in the case of collision of constitutional rights, they cancel each other out. R1 and R2 stand for reliability of empirical and normative assumptions regarding the intensity of the interpretation. The weight formula is reduced to numbers on an exponential scale of two. The scale assigns the following values to intensity of interference (I) and abstract weights (W): light (l) = 1, moderate (m) = 2, serious (s) = 4. For reliability (R), the values assigned are reliable (r) = 1, plausible (p) = 0.5, and not evidently false (e) = 0.25., Three‑stage Proportionality: This model proposes limiting the proportionality enquiry to its first three prongs, omitting the balancing stage. Von Bernstorff argues against ad hoc balancing based on two principal reasons: ad hoc balancing fails to erect stable and predictable standards of human rights protection, allowing even the most intensive infringements of civil liberties to be conveniently balanced out of existence when the stakes are high enough; and the lack of predictability leads to a situation where every act of parliament is threatened. Canada prefers to resolve cases in the first three prongs. Only in limited instances does the Canadian Supreme Court decide that a measure survives the first three prongs but nevertheless fails at the final balancing stage. In the absence of the balancing stage, courts must be mindful of certain analytical weaknesses of the necessity stage that can be addressed at the balancing stage. The core of the necessity test is whether an alternate measure is as effective in achieving the purpose as the measure under challenge, while being less restrictive. However, considerations of balancing may become disguised in the necessity prong, making ad hoc balancing potentially overly intrusive from a separation of powers perspective. Von Bernstorff defends the use of judicially established bright‑line rules for specific cases where intensive interferences are at stake. Bright‑line rules bring clarity to a law or regulation that could be interpreted in multiple ways and constitute the core substance of a particular right, making human rights categorical instead of open‑ended., Some jurists and courts have suggested a strict interpretation of necessity, where an alternate measure is accepted as less restrictive only when it proves to be as effective as the measure under challenge. David Bilchitz has also proposed that alternatives must both realise the purpose equally and involve lesser invasion or restriction on the right in question. Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to Realisation of Collective and Individual Self Determination, Reasoning Rights Comparative Judicial Engagement, edited by Liaora Lazarus; Bernhard Schlink, Abwägung im Verfassungsrecht, Duncker & Humblot, 1976, pages 192‑219. Canada (Attorney General) v. JTI‑Macdonald Corp., [2007] 2 S.C.R. 610, paragraph 46; Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, paragraphs 72‑78. David Bilchitz, Necessity and Proportionality: Towards a Balance Approach?, Hart Publishing, Oxford and Portland, Oregon 2016., A stricter evaluation of evidence becomes crucial at the necessity stage for an objective standard of review, in contrast to ad hoc balancing. In Canada, for instance, the onus of proof is on the person seeking to justify the limit, which is generally the government. The standard of proof is the civil standard or balance of probabilities. Where scientific or social‑science evidence is available, it will be required; however, where such evidence is inconclusive or does not exist, the approach of David Bilchitz was followed in the Aadhaar (privacy) case. This test was referenced in Anuradha Bhasin, which applied a moderate interpretation of the necessity test. To conclude the findings of the necessity stage, the Supreme Court of India in Anuradha Bhasin suggests that an overall comparison be undertaken between the measure and its feasible alternatives. R. v. Oakes, [1986] 1 S.C.R. 103. The test cannot be developed; reason and logic may suffice., The means‑ends test is similar to a reasonableness inquiry, albeit with some variation. In Australia, courts enquire whether a law is reasonably appropriate and adapted to achieving a legitimate end in a manner compatible with the constitutionally prescribed system of representative and responsible government. This test was followed in Australia before the development of proportionality and is not frequently used in contemporary times. The test is simplistic and gives limited judicial flexibility, and it does not account for diverse factual scenarios., Calibrated Scrutiny (evolved means‑ends test): The essential elements of the approach are as follows. First, a judge determines the nature and intensity of the burden on the right imposed by the challenged law. Second, the judge calibrates the appropriate level of scrutiny to the risk posed to the maintenance of the constitutionally prescribed system of representative and responsible government. Third, the judge isolates and assesses the importance of the constitutionally permissible purpose of the prohibition. Finally, the judge applies the appropriate level of scrutiny to determine whether the challenged law is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government. Critics have emphasized that this approach may reduce flexibility required for factually diverse legal challenges. These judges suggest that structured proportionality is best understood as a tool of analysis rather than a constitutional doctrine, and that a contextually guided judicial approach may be preferable. The test is similar to some prongs of the proportionality test but is more rule‑oriented rather than standard or principle oriented., Strict Scrutiny Test: This is considered one of the heightened forms of judicial review that can be used to evaluate the constitutionality of laws, regulations, or other governmental policies under legal challenge. Strict scrutiny is employed in cases involving violation of the most fundamental liberties guaranteed to citizens in the United States, for example infringements on free speech. The test places the burden on the government to show a compelling interest in the law and that the law is either very narrowly tailored or is the least speech‑restrictive means available to the government. The courts in the United States use a tiered approach of review with strict scrutiny, intermediate scrutiny and rational basis, in decreasing degree of intensity. Only a limited number of laws survive under strict scrutiny. The usual presumption of constitutionality is removed, and the law must also pass the thresholds of both necessity and means., Unreasonableness / Wednesbury Principles: A standard of unreasonableness is used for the judicial review of a public authority's decision. A reasoning or decision is unreasonable (or irrational) when no person acting reasonably could have arrived at it. This test has two limbs: (i) The court is entitled to investigate whether the authority has considered and decided on matters which it ought not to have considered, as in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation; (ii) If the authority has considered matters it ought not to have, the court may still find the conclusion so unreasonable that no reasonable authority could have reached it. The test is simplistic and is traditionally only used for policies, administrative decisions, and delegated legislation., Please note that: (i) The above table briefly summarises the different standards of constitutional review and does not elaborate on the tests in detail; (ii) the theories propounded by the jurists are not followed in toto across jurisdictions; and (iii) the table does not provide an exhaustive account of the full range of standards of review employed internationally and is restricted to the tests identified therein.
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Chief Justice's Court Petitioner: In Re Respondent: Zila Adhivakta Sangh Allahabad. Counsel for Petitioner: Ajay Singh, Anshu Singh, Arun Kumar, Devesh Kumar Shukla, Dharmesh Kumar Shukla, Dinesh Kumar Misra, Hare Krishna Mishra, Mir Sayed, Nitin Gupta, Pradeep Kumar Tiwari, Pranshu Kumar. Counsel for Respondent: A.K. Bajpai, Ajai Shankar Pathak, Anupam Kumar, Ashutosh Dwivedi, Ayub Khan, C S C, C.P. Upadhyay, Chandra Kumar Singh, D.K. Tiwaker, Daya Shankar Mishra, Diwakar Rai Sharma, H.N. Singh, Hemendra Pratap Singh, Jyotish Awasthi In Person, Mohd. Asif, Mohit Bihari Mathur, Mumtaz Ahmad Siddiqui, P.K. Jain, Pranesh Dutt Tripathi, R.D. Sahi, R.K. Singh, Rakesh Pandey, Ratnakar Upadhyay, Ritesh Srivastava, S.C. Mishra, Sanjay Mishra, Sanjay Singh, Sanjiv Kumar Pandey, Santosh Kumar Pandey, Santosh Kumar Tripathi, Shishupal Sharma, Siddharth Nandan, Sudhir Dixit, Suresh Chandra Pandey, Swetashwa Agrawal, Tahir Husain, V. C. Srivastava, Vineet Kumar Singh. Honourable Presiding Judge Diwaker, Chief Justice Honourable Justice Sunita Agarwal, Honourable Justice Surya Prakash Kesarwani, Honourable Justice Manoj Kumar Gupta, Honourable Justice Anjani Kumar Mishra, Honourable Justice Dr. Kaushal Jayendra Thaker, Honourable Justice Mahesh Chandra Tripathi, Kanpur Bar Association and the Lawyers' Association, Kanpur Nagar are on continuous strike., Initially they were only boycotting the Court of District and Sessions Judge, Kanpur Nagar, but later on they are boycotting the entire Courts of Kanpur Judgeship since 25th March 2023, hampering the entire judicial work., On the administrative side, the Chief Justice and the Administrative Judges of Kanpur Nagar held meetings separately as well as jointly with the President and the General Secretary of the Kanpur Bar Association, Kanpur Nagar and tried to resolve the issue. The President and the General Secretary of the Kanpur Bar Association gave assurance to call off the strike and resume their work, but they have deviated from their assurance and are now threatening to spread the strike in the whole district of Kanpur Nagar in different modes., Learned Advocate General, present in the District and Sessions Court, Kanpur Nagar, submits that the strike cannot be supported in any manner and the lawyers are supposed to work in the District and Sessions Court, Kanpur Nagar. He has given assurance to the District and Sessions Court, Kanpur Nagar that all sorts of assistance would be provided to the lawyers and the Judges for dispensation of justice. In support of his submission, he has referred to the judgment of the Supreme Court in Ex. Capt. Harish Uppal vs. Union of India and another, AIR 2003 SC 739 and submits that the lawyers are supposed to perform their duties in the District and Sessions Court, Kanpur Nagar and, if any strict action is required to be taken, that will also be supported by the State. He has further placed reliance upon the judgments of the Supreme Court in Supreme Court Bar Association v. Union of India (1998) 4 SCC 409; Krishnakant Tamrakar v. State of Madhya Pradesh, 2018 (17) SCC 27 and Hussain v. Union of India, (2017) 5 SCC 702., He further submits that the strike by lawyers is not only illegal and unethical, but it also causes great hindrance in dispensation of justice. It also amounts to committing professional misconduct, a breach of contract, a breach of trust and a breach of professional duty. Moreover, strike by advocates leads to wastage of valuable time of the court and hard‑earned money of the taxpayers. These strikes also lower the image of the institution., In Ex. Capt. Harish Uppal vs. Union of India and another (supra), it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. Lawyers holding Vakalat of a client and abstaining from the District and Sessions Court, Kanpur Nagar due to a strike call would be personally responsible for costs, in addition to liability to damages towards the client for loss suffered. In Supreme Court Bar Association v. Union of India (supra), it has been held that professional misconduct may also amount to contempt of courts. In Krishnakant Tamrakar v. State of Madhya Pradesh (supra), the Supreme Court rightly pointed out that every strike causes irreversible damage to the judicial system, particularly to the litigants. In the present case, despite sincere efforts being made by the District and Sessions Court, Kanpur Nagar, the lawyers are adamant not to perform their work in the District and Sessions Court, Kanpur Nagar and their actions are creating a hurdle in dispensation of justice, which amounts to contempt of courts., In the given facts and circumstances of the case, we feel it appropriate to issue notices to Sri Naresh Chandra Tripathi, President, Kanpur Bar Association; Sri Anurag Srivastava, General Secretary, Kanpur Bar Association; Sri Ravindra Sharma, President, the Lawyers' Association, Kanpur Nagar; and Sri Sharad Kumar Shukla, General Secretary, the Lawyers' Association, Kanpur Nagar. Notices be served upon the aforesaid office bearers through the Commissioner of Police, Kanpur Nagar, directing them to remain present personally before the District and Sessions Court, Kanpur Nagar on 07.04.2023 at 10:00 a.m., As an interim measure, it is directed that the lawyers shall resume their work forthwith to purge the contempt and, in case any hindrance is created by any lawyer or office bearer, the same would be viewed seriously. As assured by the learned Advocate General, we expect the local administration to help in all sorts of manner., This order shall be communicated to the office bearers of both the Bar Associations, Kanpur Nagar and to the District Administration, Kanpur Nagar by the Registry. The learned Advocate General is also obliged to serve a copy of this order to the District Administration. Registrar General of the District and Sessions Court, Kanpur Nagar is directed to ensure publication of this order amongst not only the lawyers community at Kanpur Nagar, but through media also., The District Magistrate and the Commissioner of Police, Kanpur Nagar are also directed to affix this order on the notice board of both the Bar Associations and other conspicuous places inside the District and Sessions Court, Kanpur Nagar premises. After completing all the formalities, the officers are to report to the Registry of the District and Sessions Court, Kanpur Nagar before 1:00 p.m. today., In the given facts and circumstances of the case, the Chairman, Bar Council of Uttar Pradesh is also requested to assist the District and Sessions Court, Kanpur Nagar and to remain present tomorrow at 10:00 a.m. before the District and Sessions Court, Kanpur Nagar., Put up this matter on 07.04.2023 at 10:00 a.m.
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Re: Appointment of Mister Justice N. V. Anjaria, Judge, High Court of Gujarat as Chief Justice of the High Court of Karnataka. A vacancy in the office of the Chief Justice of the High Court of Karnataka would arise consequent upon the retirement of Mister Justice P. S. Dinesh Kumar on 24 February 2024. Therefore, appointment to that office is required to be made. Paragraph 3 of the Memorandum of Procedure relating to appointment of Chief Justice of a High Court provides under: A fair representation shall be given to various High Courts for selection of Chief Justices. For purposes of such selection, inter-se seniority of puisne Judges will be reckoned on the basis of their seniority in their own High Court. The consideration for appointment of Chief Justices shall be based on the criterion of seniority subject to merit and integrity., The Collegium proposes to appoint Mister Justice N. V. Anjaria as the Chief Justice of the High Court of Karnataka with effect from the date on which the incumbent Chief Justice demits office on retirement. Mister Justice Anjaria was appointed as a Judge of the High Court of Gujarat on 21 November 2011 and has been functioning there since then. Before his elevation as a Judge of the High Court, he practised in the High Court of Gujarat in civil, constitutional, company law, labour and service matters and specialized in civil and constitutional cases. He is a competent judge with a sound knowledge of law and possesses impeccable integrity. In his conduct as a judge he has maintained the standard required of a person holding high judicial office. While recommending his name, the Collegium has taken into consideration the fact that among the Chief Justices of the High Courts, one judge namely Mister Justice Ashish J. Desai, whose parent High Court is the High Court of Gujarat, is presently functioning as Chief Justice of the High Court of Kerala. Mister Justice Ashish J. Desai is due to demit office on 4 July 2024. Having regard to all relevant factors, the Collegium is of the considered view that Mister Justice N. V. Anjaria is fit and suitable in all respects for being appointed as the Chief Justice of the High Court of Karnataka. The Collegium, therefore, resolves to recommend that Mister Justice N. V. Anjaria be appointed as the Chief Justice of the High Court of Karnataka consequent upon the retirement of Mister Justice P. S. Dinesh Kumar.
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Writ Petition(s) (Civil) No(s). 620/2021 Date: 24-06-2021. This matter was called on for hearing today., For Petitioner: Mr. Shashibhushan P. Adgaonkar, Advocate on Record; Mr. Ravibhushan P. Adgaonkar, Advocate; Mr. Gagandeep Sharma, Advocate; Mr. Rana Sandeep Bussa, Advocate; Ms. Ruchi Rathi, Advocate. For Respondent: Ms. Neelam Sharma, Advocate; Ms. Pankhuri Shrivastava, Advocate; Mr. Soumik Ghosal, Advocate on Record; Mr. Gaurav Singh, Advocate; Mr. Prashant Padmanabhan, Advocate on Record (Writ Petition No. 67564 & 67565/21); Mr. Asish Sarkar, Advocate on Record; Ms. Mamta Sharma, Advocate; Mr. Praveen Swarup, Advocate on Record; Ms. Pareena Swarup, Advocate; Ms. Sadiya Shakeel, Advocate; Mr. Abhishek Choudhary, Advocate on Record (Writ Petition No. 67878 & 67880/21); Mr. Prabhu Prassana Behera, Advocate; Mr. Nabab Singh, Advocate; Ms. Ritika Ritu, Advocate; Mr. Abhishek Pattnaik, Advocate; Ms. Manju Jetley, Advocate; Mr. Sandeep Devashish Das, Advocate on Record; State of Tripura: Mr. Shuvodeep Roy, Advocate on Record; Mr. Kabir Shankar Bose, Advocate; State of Kerala: Mr. G. Prakash, Advocate on Record; Ms. Priyanka Prakash, Advocate; Ms. Beena Prakash, Advocate; State of Haryana: Dr. Monika Gusain, Advocate on Record; State of Punjab: Mrs. Jaspreet Gogia, Advocate on Record; Ms. Mandakini Singh, Advocate; Mr. Karanvir Gogia, Advocate; Ms. Shivangi Singhal, Advocate; Ms. Ashima Mandla, Advocate; State of Assam: Mr. Devajit Saikia, Senior Advocate; (Attorney General) Mr. Nalin Kohli, Additional Advocate General; Mr. Debojit Borkakati, Advocate on Record; Mr. R. Baruah, Advocate; Mr. A. Chaliha, Advocate; Mr. Vivek Sonkar, Advocate; Mr. Ankit Roy, Advocate; State of Manipur: Mr. Pukhrambam Ramesh Kumar, Advocate; Ms. Anupama Ngangom, Advocate; Mr. Karun Sharma, Advocate; Mr. Jayesh Gaurav, Advocate; Ms. Diksha Ojha, Advocate; Mr. Ranjan Nikhil Dharnidhar, Advocate on Record; State of Andhra Pradesh: Mr. Mahfooz A. Nazki, Advocate on Record; State of Uttar Pradesh: Mr. Harish Pandey, Advocate on Record; State of Telangana: Mr. P. Venkat Reddy, Advocate; Mr. Prashant Tyagi, Advocate; Mr. P. Srinivas Reddy, Advocate; M/s. Venkat Palwai Law Associates, Advocate on Record; State of Karnataka: Mr. Shubranshu Padhi, Advocate on Record; Mr. Ashish Yadav, Advocate; Mr. Rakshit Jain, Advocate; Mr. Vishal Banshal, Advocate., Upon hearing the counsel, the Supreme Court of India made the following observations. We have interacted with the learned counsel appearing for the State of Andhra Pradesh and the State of Kerala, who had filed affidavits stating that the Board of the concerned State has taken an in principle decision to continue with the twelfth standard examination. As regards the State of Kerala, the issue is limited to the eleventh standard examination. The State of Kerala has already conducted the twelfth standard examination in the month of April 2021. In the present proceedings, we are focusing only on the grievance regarding the twelfth standard examination of the respective Boards of different States. Consequently, we do not wish to examine the grievance of the students of the State of Kerala who want to pursue the eleventh standard examination. The students of the eleventh standard from the State of Kerala are free to file a substantive writ petition before the High Court raising all contentions available to them. The same are kept open. The High Court may decide the said grievance on its own merits. Reverting to the State of Andhra Pradesh, Mr. Mahfooz A. Nazki, learned counsel appearing for the State, seeks time to take instructions on matters in respect of which certain aspects have been discussed in the course of arguments. Hence, this matter be listed tomorrow, i.e., 25-06-2021 at 2:00 p.m. As regards the State of Assam, an affidavit has been filed mentioning that the tenth and twelfth standard examinations have been cancelled and the scheme is being formulated by the concerned Boards for allocation of internal assessment marks. That must be done expeditiously. In addition, the scheme must provide for a proper mechanism for redressal of dispute or grievance of the students after declaration of results, as has been done in the case of the Central Board of Secondary Education and the Indian Certificate of Secondary Education Boards. Learned counsel appearing for the State of Haryana submits that a clarification be issued that the respective Boards are free to formulate their own schemes being autonomous and independent bodies. We have no difficulty in acceding to this submission. In other words, we make it clear that each Board may formulate its own scheme. However, we further make it clear that we are not endorsing the correctness and validity of the proposed schemes to be so formulated by the concerned Boards. That will be considered on its own merits, if and when occasion arises. Learned counsel appearing for the National Institute of Open Schooling submits that the National Institute of Open Schooling has cancelled the examinations and is in the process of formulating the scheme. We direct all the State Boards to ensure that the schemes are formulated and notified at the earliest and not later than ten days from today and also declare the results of internal assessment by 31-07-2021, which is the timeline specified for the Central Board of Secondary Education and the Indian Certificate of Secondary Education Boards in terms of our order dated 22-06-2021 passed in Writ Petition (Civil) No. 522 of 2021.
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