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Re: Proposal for transfer of Mister Justice P Sam Koshy, Judge, High Court of Chhattisgarh. Mister Justice P Sam Koshy has sought his transfer out of the State of Chhattisgarh., Acceding to his request, on 05 July 2023 the Collegium proposed his transfer to the High Court of Madhya Pradesh. Mister Justice Koshy has, however, requested a transfer to any High Court other than the High Court of Madhya Pradesh. Mister Justice Koshy has volunteered for a transfer out of Chhattisgarh., On reconsideration of the recommendation made by this Collegium yesterday, the Collegium resolves to recommend that he be transferred to the High Court for the State of Telangana, instead of the High Court of Madhya Pradesh. The Collegium is recommending transfer of Mister Justice Koshy to the High Court of Telangana bearing in mind that this would enrich the composition of that High Court.
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Aslam Salim Shaikh, aged 30 years, occupation nil, currently residing as Convict Prisoner No. B 37620, Circle No.3, Barrack No.3, Yerwada Central Prison, Pune 06. Permanent resident of Kashewadi, Bhawani Peth, Pune 42., Petitioner versus State of Maharashtra (copy to be served on Public Prosecution, High Court of Judicature of Bombay) and Superintendent of Jail, Yerwada Central Prison, Pune 06. Respondents: Ms. Gazala R. Shaikh for the petitioner; Ms. P. P. Shinde, Additional Public Prosecutor for the Respondent State., Heard learned counsel for the parties. Rule made returnable forthwith with the consent of the parties and taken up for final disposal. Learned Additional Public Prosecutor waives notice on behalf of the Respondent State., This is a glaring case warranting interference of the High Court of Judicature of Bombay as a protector of the fundamental right to life and personal liberty, lest there be a serious miscarriage of justice. The facts in the instant case warrant exercise of our writ jurisdiction as well as inherent jurisdiction to do justice, for which courts exist., The petitioner, currently aged 30 years, has filed the petition through the Legal Services Authority invoking our writ jurisdiction as well as inherent powers, and seeks a direction that the sentences of imprisonment awarded to the petitioner by different courts in 41 cases run concurrently. The petitioner also seeks setting aside of the total fine amount of Rs.1,26,400 passed by the various courts in 41 cases. The petitioner has been in custody since 3 December 2014. He was arrested and prosecuted essentially for offences pertaining to theft in 41 cases by different police stations. According to the petitioner, he was falsely implicated, was ill‑literate and unaware of the niceties of law, and, having regard to his financial condition and being unable to engage a lawyer, pleaded guilty in all 41 cases under a bona fide belief that he would be released from prison for the period already undergone as an under‑trial prisoner., Vishrantwadi Police Station, Case No. CR No.156 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Section 34 of Indian Penal Code read with Section 380 IPC, arrested 12 September 2014, convicted 3 December 2014, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month, Rigorous Imprisonment for 1 year, Rigorous Imprisonment for 1 year; Vishrantwadi Police Station, Case No. CR No.229 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 15 September 2014, convicted 3 December 2014, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month, Rigorous Imprisonment for 1 year; Vishrantwadi Police Station, Case No. CR No.251 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 15 September 2014, convicted 3 December 2014, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month, Rigorous Imprisonment under Section 454 for 1 year, Rigorous Imprisonment under Section 457 for 1 year; Vishrantwadi Police Station, Case No. CR No.212 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 18 March 2015, convicted 18 March 2015, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month, Rigorous Imprisonment for 1 year; Vishrantwadi Police Station, Case No. CR No.239 of 2014, RCC No.73/2015, under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 12 September 2014, convicted 18 March 2015, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 year, Rigorous Imprisonment for 1 year, Rigorous Imprisonment under Section 457 for 1 year; Vishrantwadi Police Station, Case No. CR No.120 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 12 September 2014, convicted 18 March 2015, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 year, Rigorous Imprisonment under Section 454 for 1 year, Rigorous Imprisonment under Section 457 for 1 year; Vishrantwadi Police Station, Case No. CR No.29 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month, Rigorous Imprisonment under Section 454 for 1 year, Rigorous Imprisonment under Section 457 for 1 year; Vishrantwadi Police Station, Case No. CR No.142 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 457, 511 read with Section 34 of Indian Penal Code, arrested 10 September 2014, convicted 18 March 2015, sentenced to Rigorous Imprisonment for 1 year, Rigorous Imprisonment under Section 511 for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month; Vishrantwadi Police Station, Case No. CR No.66 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 11 September 2014, convicted 18 March 2015, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 year, Rigorous Imprisonment under Section 454 for 1 year; Vishrantwadi Police Station, Case No. CR No.36 of 2014, before Judicial Magistrate First Class, Khadki, Pune, Under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 10 September 2014, convicted 18 March 2015, sentenced to Rigorous Imprisonment for 18 months and fine of Rs.500, in default Rigorous Imprisonment for 1 month, Rigorous Imprisonment under Section 454 for 1 year, Rigorous Imprisonment under Section 457 for 1 year; Sahakar Nagar Police Station, Case No.6 of 2014, RCC No.4051/2014, before 11th Judicial Magistrate First Class, Pune, Under Sections 457, 380 read with Section 34 of Indian Penal Code, arrested 2 August 2014, convicted 6 January 2015, sentenced to Simple Imprisonment for 2 years and fine of Rs.2,000, in default Simple Imprisonment for 7 days; Sahakar Nagar Police Station, Case No.26 of 2014, RCC No.2672/2015, before 11th Judicial Magistrate First Class, Pune, Under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 6 September 2014, convicted 3 September 2015, sentenced to Simple Imprisonment for 2 years and fine of Rs.2,000, in default Simple Imprisonment for 7 days; Sahakar Nagar Police Station, Case No.3 of 2014, before 11th Judicial Magistrate First Class, Pune, Under Sections 457, 380 read with Section 34 of Indian Penal Code, arrested 2 September 2014, convicted 8 March 2016, sentenced to Simple Imprisonment for 2 years and fine of Rs.2,000, in default Simple Imprisonment for 4 days; Sahakar Nagar Police Station, Case No.36 of 2014, before 11th Judicial Magistrate First Class, Pune, Under Sections 457, 380 read with Section 34 of Indian Penal Code, arrested 9 March 2014, convicted 8 March 2016, sentenced to Simple Imprisonment for 2 years and fine of Rs.2,000, in default Simple Imprisonment for 4 days; Sahakar Nagar Police Station, Case No.122 of 2014, before Additional Sessions Judge, Pune, under Sections 454, 380, Rigorous Imprisonment under Section 454 for 2 years; Sahakar Nagar Police Station, Case No.106 of 2014, before Additional Sessions Judge, Pune, under Sections 454, 380, Rigorous Imprisonment under Section 454 for 2 years; Khadak Police Station, Case No.08 of 2014, RCC No.4488/2014, Pune, under Sections 457, 380, 511, 34 of Indian Penal Code, arrested 1 November 2014, convicted 6 May 2015, sentenced to Simple Imprisonment for 6 months and 15 days and fine of Rs.100, in default Simple Imprisonment for 4 days; Khadak Police Station, Case No.113 of 2014, Pune, under Sections 454, 380, 34 of Indian Penal Code, arrested 31 October 2014, convicted 29 June 2015, sentenced to Simple Imprisonment for 8 months and fine of Rs.100, in default Simple Imprisonment for 2 days; Khadak Police Station, Case No.214 of 2010, RCC No.4850/2010, Pune, under Section 379 of Indian Penal Code, arrested 30 October 2010, convicted 27 September 2016, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Simple Imprisonment for 2 months; Khadak Police Station, Case No.05 of 2008, RCC No.1235/2008, Pune, under Sections 457, 380, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.3,000, in default Simple Imprisonment for 2 months; Khadak Police Station, Case No.150 of 2011, RCC No.3220/2011, Pune, under Sections 454, 457, 380 of Indian Penal Code, arrested 2 July 2011, convicted 27 September 2016, sentenced to Rigorous Imprisonment for 2 years and fine of Rs.3,000, in default Simple Imprisonment for 2 months; Warje Malwadi Police Station, Case No.113 of 2015, under Sections 454, 380, 411 of Indian Penal Code, arrested 1 October 2014, convicted 22 June 2015, sentenced to Imprisonment for 3 years and fine of Rs.7,000, in default Simple Imprisonment for 5 months; Warje Malwadi Police Station, Case No.40 of 2014, RCC No.2003/2015, under Sections 454, 380, 411 of Indian Penal Code, arrested 4 October 2014, convicted 22 June 2015, sentenced to Imprisonment for 3 years and fine of Rs.7,000, in default Simple Imprisonment for 5 months; Warje Malwadi Police Station, Case No.235 of 2014, Pune, under Sections 454, 457, 380 read with Section 511 of Indian Penal Code, arrested 3 October 2014, convicted 26 August 2016, sentenced to Imprisonment for 2 years and fine of Rs.1,000, in default Simple Imprisonment for 10 days; Bharati Vidyapeeth Police Station, Case No.197 of 2014, RCC No.0400617/2015, under Section 511 of Indian Penal Code, arrested 2 December 2014, convicted 31 July 2015, sentenced to Rigorous Imprisonment for 6 months and fine of Rs.2,000, in default Simple Imprisonment for 3 months; Bharati Vidyapeeth Police Station, Case No.73 of 2014, RCC No.4218/2015, Pune, under Sections 454, 380 of Indian Penal Code, arrested 2 December 2014, convicted 28 July 2016, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Rigorous Imprisonment for 1 year; Bharati Vidyapeeth Police Station, Case No.227 of 2014, Pune, under Sections 454, 380, 34 of Indian Penal Code, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Rigorous Imprisonment for 1 year; Hinjwadi Police Station, Case No.295 of 2014, RCC No.4541/2014, Pune, under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 28 October 2014, convicted 7 September 2015, sentenced to Rigorous Imprisonment for 9 months and fine of Rs.1,000, in default Simple Imprisonment for 10 days; Hinjwadi Police Station, Case No.311 of 2014, RCC No.4818/2014, Pune, under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 28 July 2014, convicted 7 September 2015, sentenced to Rigorous Imprisonment for 1 year and fine of Rs.1,000, in default Simple Imprisonment for 10 days; Hinjwadi Police Station, Case No.116 of 2014, RCC No.4819/2014, Pune, under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 28 July 2014, convicted 7 September 2015, sentenced to Rigorous Imprisonment for 1 year and fine of Rs.1,000, in default Simple Imprisonment for 10 days; Shivaji Nagar Police Station, Case No.16 of 2015, No.0403531/2015, Judicial Magistrate First Class, Pune, under Section 353 of Indian Penal Code, arrested 19 May 2015, convicted 18 September 2015, sentenced to Rigorous Imprisonment for 8 months; Kondhva Police Station, Case No.314 of 2014, Cantonment Court, Pune, under Section 380 of Indian Penal Code, arrested 16 September 2014, convicted 14 January 2016, sentenced to Simple Imprisonment for period already undergone in detention; Wanwadi Police Station, Case No.96 of 2015, read with Section 34 of Indian Penal Code, arrested 22 April 2015, convicted 17 February 2016; Wanwadi Police Station, Case No.125 of 2014, Cantonment Court, Pune, under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 3 November 2014, convicted 12 April 2016, sentenced to Simple Imprisonment for 2 years under Section 380, Simple Imprisonment for 2 years under Section 454, Simple Imprisonment for 2 years under Section 457; Wanwadi Police Station, Case No.142 of 2014, Pune, under Sections 454, 457, 380 read with Section 34 of Indian Penal Code, arrested 15 September 2015, convicted 31 August 2016, sentenced to Simple Imprisonment for 2 years under Section 454, Simple Imprisonment for 2 years under Section 457, Simple Imprisonment for 2 years under Section 380; Bibwewadi Police Station, Case No.78 of 2014, RCC No.4568/2014, under Indian Penal Code, arrested 18 August 2014, convicted 28 July 2016, sentenced to Rigorous Imprisonment for 2 years and fine of Rs.5,000, in default Rigorous Imprisonment for 6 months; MIDC Bhosari Police Station, Case No.112 of 2014, Pune, under Sections 454, 380 read with Section 34 of Indian Penal Code, arrested 7 November 2014, convicted 29 August 2016, sentenced to Simple Imprisonment for 1 year, 9 months and 22 days; Vimantal Police Station, Case No.112 of 2014, No.0400268/2015, read with Section 34 of Indian Penal Code, arrested 13 November 2014, convicted 9 September 2016, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Simple Imprisonment for 6 months; Vimantal Police Station, Case No.191 of 2014, No.0400269/2019, read with Section 34 of Indian Penal Code, arrested 13 November 2014, convicted 9 September 2016, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Simple Imprisonment for 6 months; Vimantal Police Station, Case No.115 of 2014, No.0400270/2015, under Sections 380, read with Section 34 of Indian Penal Code, arrested 13 November 2014, convicted 9 September 2016, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Simple Imprisonment for 6 months; Vimantal Police Station, Case No.139 of 2014, No.0400272/2015, under Sections 380, read with Section 34 of Indian Penal Code, arrested 13 November 2014, convicted 9 September 2016, sentenced to Rigorous Imprisonment for 3 years and fine of Rs.5,000, in default Simple Imprisonment for 6 months., Section 427(1) of the Criminal Procedure Code provides that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with the previous sentence. The Apex Court in Mohd Zahid v. State through NCB, interpreting the provision, held that the court has discretion to direct that the subsequent sentence run concurrently with the previous sentence., The principles emerging from the Apex Court decisions are: (i) If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, the subsequent term would normally commence at the expiration of the first term; (ii) Ordinarily the subsequent sentence would commence at the expiration of the first term unless the court directs concurrent running; (iii) Where there are different transactions, different offence numbers and different judgments, concurrent sentence cannot be awarded under Section 427 of the Criminal Procedure Code; (iv) Under Section 427(1) the court has the power and discretion to issue a direction that all subsequent sentences run concurrently, but discretion must be exercised judiciously depending on the nature of the offences and the facts, and a specific direction must be made by the court., It is evident that the High Court of Judicature of Bombay has the power and discretion under Section 427(1) of the Criminal Procedure Code to issue a direction that all subsequent sentences run concurrently with the previous sentence. However, in none of the 41 cases, although some were tried by the same court and arose from the same police station, is there any specific direction or order that the subsequent sentences should run concurrently. No specific direction was issued by the trial courts, before whom more than one case was pending, in terms of Section 427(1) of the Criminal Procedure Code allowing the subsequent sentences to run concurrently., The courts before whom more than one case was pending failed to exercise their discretion. The petitioner was not defended by any advocate nor was legal aid offered by the trial court. The petitioner was only 21 years old at the time of arrest and his family members were dependent on him. He pleaded guilty believing that he would be released on account of the sentence already undergone as an under‑trial prisoner. He prayed for leniency on the premise that he belonged to a poor family, but the prayer was not taken into consideration. None of the courts considered these factors. Three of the cases, dated 2008, 2010 and 2011, involve the petitioner who, according to the prosecution, was about 21 years of age in 2014 and therefore a juvenile in conflict with law at the time of those offences. The courts did not dwell on the dates, presumably because the petitioner pleaded guilty in those three cases in 2016., The sentencing policy of criminal jurisprudence mandates courts to pass sentences that meet the twin objects of deterrence and reformation. The deterrent effect is to prevent the commission of a similar offence by the convict and to deter prospective offenders. The reformative aim is that the sentence should not demoralise the offender and should give the offender an opportunity, depending on the nature of the offence, to improve himself. Any sentence imposed must maintain a proper balance between the deterrent and reformative objects and must ensure that the said object is sufficiently met., If the petitioner is permitted to undergo imprisonment in all the aforesaid cases, he would be compelled to undergo imprisonment of approximately 83 years, 3 months and 5 days, and because he is unable to pay the fine, non‑payment would attract a further imprisonment of 10 years, 1 month and 26 days, totalling 93 years, 5 months – effectively his entire life, with no hope of release. Such a sentence is more severe than that imposed for murder and would constitute a travesty of justice., The petitioner was about 21 years old at the relevant time when he was booked in the 38 offences and was a juvenile in conflict with law in three cases. All except three offences pertain to the period 2014 to 2015. The petitioner could not afford a lawyer due to his financial condition and therefore pleaded guilty in all 41 cases. The present petition is filed through jail. Since the cases were tried by different courts, Section 427(1) of the Criminal Procedure Code cannot be directly invoked, but a serious miscarriage of justice would occur if the High Court of Judicature of Bombay fails to interfere and exercise its discretion in writ jurisdiction and inherent powers., As William Scott Downey said, \Law without justice is a wound without a cure.\ In exercise of our writ and inherent jurisdiction, we deem it appropriate to put right the clock to prevent miscarriage of justice, failing which the petitioner would remain incarcerated for more than 90 years for committing theft, with no prospect of release., We have perused a few of the FIRs to satisfy our conscience with respect to the nature of offences alleged. The FIRs appear to have been lodged against unknown persons. If trial had commenced, some cases might have ended in the petitioner's acquittal for want of evidence. The learned magistrates ought to have at least perused the papers before awarding sentences, especially when the petitioner pleaded guilty, to ensure that the sentences were commensurate with the evidence. The learned judge also failed to consider that the petitioner was a juvenile in conflict with law in the 2008, 2010 and possibly 2011 cases, as the prosecution contends that he was 21 years old in 2014., It is well settled that when there is a grave error of law apparent on the face of the record or a miscarriage of justice resulting from the orders of the courts below, or when it is necessary to enforce fundamental or legal rights or to meet the ends of justice, the court can entertain a petition of this nature., Section 482 of the Criminal Procedure Code can be invoked to render complete justice. It may be exercised to give effect to an order under the Criminal Procedure Code, to prevent abuse of the process of the court, and to secure the ends of justice. In short, Section 482 is a reminder to High Courts that they are not merely courts of law but also courts of justice and possess inherent powers to remove injustice. The petitioner has no other effective alternative remedy to redress his grievance, and inherent jurisdiction must be exercised ex debito justitiae to do real and substantial justice for which courts exist., Hence, in the peculiar facts, we exercise our writ jurisdiction as well as inherent powers and allow the petition, lest there be a travesty of justice. Order: (i) The petitioner be released forthwith on the basis of the sentence already undergone in all the 41 cases reproduced hereinabove, unless required in any other case. Petition is allowed and disposed of in the above terms. Rule is made absolute in the aforesaid terms. All concerned are to act on the authenticated copy of this judgment.
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id_1421
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Suo Motu Criminal Contempt Petition No. 1699 of 2021, Madras High Court, Chennai 600 104. Petitioner: Mister B. Vijay. Respondent: Mister R. D. Santhana Krishnan. The Madras High Court initiated suo motu criminal contempt proceedings against the respondent as per order dated 21 December 2021., On 20 December 2021, a video clipping showing the online proceedings of Court No. 11, in which a male participant was found canoodling with a lady, went viral on social media. On the directions of the Honourable Chief Justice, the bench holding the criminal contempt portfolio registered the present suo motu criminal contempt proceedings and issued the following directions: the Registry of the Madras High Court shall register a suo motu criminal contempt proceeding based on the impugned video clipping and place the matter before the bench on the next date of hearing; since the impugned video clipping prima facie discloses the commission of cognizable offences under the Information Technology Act and other penal laws, the Central Bureau of Criminal Investigation Department shall register a suo motu FIR on the impugned video clipping and file a preliminary report before the Madras High Court on 23 December 2021 naming the persons engaged in the vulgar activity; the Registry shall preserve the video recordings of the Court proceedings in question; the Registrar (Information Technology cum Statistics) shall coordinate with the Central Bureau of Criminal Investigation Department and, if required, furnish the impugned video clipping and other evidence to it; the Commissioner of Police, Greater Chennai, shall take steps to block the circulation of the impugned video clipping on social media; the Registrar (Information Technology cum Statistics) shall liaise with the concerned authorities for removal of the impugned video clipping from the internet., The Central Bureau of Criminal Investigation Department filed a preliminary report dated 22 December 2021 stating that the male in the impugned video clipping is Mister R. D. Santhana Krishnan, Advocate (Enrolment No. MS 3907/2011), aged about 49 years, residing at No. 2/3, Teeds Garden, VII Street, Perambur, Sembium, Chennai 11. The report further stated that a case has been registered against Santhana Krishnan in Criminal Case No. 13 of 2021 for offences under Sections 228, 292(2)(a) and 294(a) of the Indian Penal Code and Section 67-A of the Information Technology Act, 2008. On the same day, the learned Public Prosecutor informed the Madras High Court that the Bar Council of Tamil Nadu and Puducherry had placed Santhana Krishnan under suspension on 21 December 2021 for his indecent behaviour, pending disposal of disciplinary proceedings. Since the report disclosed the identity of the male, a statutory notice was issued on 23 December 2021 to Santhana Krishnan, returnable by 20 January 2022., The Central Bureau of Criminal Investigation Department identified the lady in the impugned video clipping (referred to as X to protect her privacy) and recorded her statement under Section 164 of the Criminal Procedure Code before the XI Metropolitan Magistrate, Saidapet, Chennai on 28 December 2021. Pursuant thereto, the Central Bureau of Criminal Investigation Department altered the offences in the FIR to Sections 228, 292(2)(a), 294(a) and 354-A of the Indian Penal Code, Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 and Section 67-A of the Information Technology Act, 2008. Santhana Krishnan was placed under arrest on 8 January 2022 and released on station bail due to the pandemic situation and his ill health; he was arrested again on 21 January 2022 and remanded in judicial custody. When the matter was listed on 25 January 2022, the Central Bureau of Criminal Investigation Department filed a status report dated 24 January 2022 stating that enquiries with X and her mother Y revealed that X had been subjected to physical and sexual exploitation several times by the accused, and that the accused had exploited the family's financial situation by offering X money, new dress and food., On 25 January 2022, Mister K. Elangovan, Advocate, entered appearance for Santhana Krishnan and filed an affidavit dated 20 January 2022 sworn by Santhana Krishnan, giving his version of the incident and offering an unconditional apology. Although the affidavit did not deny the incident, the Registry was directed to copy the impugned video clipping onto a compact disc and furnish it to Santhana Krishnan. On the next hearing date, 22 February 2022, a compact disc containing the impugned video clipping was furnished to Mister Elangovan, as Santhana Krishnan was in judicial custody. Santhana Krishnan was released on bail on 25 February 2022 and appeared before the Madras High Court on 8 March 2022 along with Mister Elangovan. The Court framed the following charges: (1) that Santhana Krishnan, Advocate (Enrolment No. 3907/11), while attending the proceedings of Court No. 11 on 20 December 2021, brazenly engaged in canoodling with a lady X in full public view, scandalising and lowering the authority of the Court, punishable under Section 2(c)(i) read with Section 12 of the Contempt of Courts Act, 1971; (2) that the act was publicly visible on the virtual platform, interfering with the due course of judicial proceedings, punishable under Section 2(c)(ii) read with Section 12 of the Contempt of Courts Act; (3) that the act brought the administration of justice by the Madras High Court into disrepute, punishable under Section 2(c)(iii) read with Section 12 of the Contempt of Courts Act., When questioned, Santhana Krishnan pleaded guilty to all charges and tendered his unconditional apology. His counsel submitted that the apology affidavit dated 20 January 2022 may be treated as his reply to the charges. Mister Elangovan further submitted that Santhana Krishnan, not being tech‑savvy, was unaware that the camera on his laptop was on while he was involved in the act with X, and that the act was not intended to scandalise the Court. The Court extracted paragraphs 8 to 11 of Santhana Krishnan's affidavit dated 20 January 2022, wherein he stated that his junior had connected to the virtual court, the laptop screen remained on and he was unaware that the virtual court was running in the background, that the volume was muted, that he did not know the camera was on, and that the woman in the video, X, was a neighbourhood friend who had visited his office accidentally., The Court noted that the averments in paragraph 11 of the affidavit are in material variance with the Section 164 statement of X, but refrained from commenting as the investigation is ongoing and the statement has not become public. X was not impleaded as a respondent because she is from a poor background and was a victim of circumstances., The Court observed that Santhana Krishnan's defence likens his ignorance of the camera to not seeing a policeman before jumping a traffic signal, an analogy that does not absolve the contempt. As an advocate appearing on a virtual platform, he was required to maintain respect and decorum irrespective of the camera mode. The Court found his explanation unsatisfactory and held him guilty of all three charges., The Court expressed that X deserves suitable compensation. Santhana Krishnan offered to pay Rs. 4 lakh to X; the Court recorded the offer and directed him to submit a demand draft in favour of X to the Secretary, Tamil Nadu State Legal Services Authority. The Secretary reported that the demand draft was handed over to X as identified by the Inspector of Police, Central Bureau of Criminal Investigation Department., Mister Elangovan prayed for mercy, stating that Santhana Krishnan has already suffered loss of reputation, 34 days of incarceration, and suspension from practice. After contemplation, the Court, recalling a parable from the Gospel of John, emphasized mercy but noted that the Court cannot engage in moral policing. The Court sentenced Santhana Krishnan to simple imprisonment for two weeks for each charge, to run concurrently, and a fine of Rs. 2,000 for each charge (total Rs. 6,000), with default of one week simple imprisonment per charge. The period of 34 days already served is set off against the imposed sentence., The Court appreciated the assistance of Special Public Prosecutor Mister Hasan Mohamed Jinnah and Additional Prosecutor Mister R. Muniyapparaj in making investigation files available, and also appreciated the Central Bureau of Criminal Investigation Department for acting with alacrity. The suo motu criminal contempt petition stands disposed of on the above terms.
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Reserved on 02.02.2024, Pronounced on 08.02.2024. Dilbag Singh alias Dilbag Sandhu, Petitioner, versus Union of India and another Respondent. Kulwinder Singh, Petitioner, versus Union of India and another Respondent. Present: Mr. Chetan Mittal, Senior Advocate; Mr. Anshul Mangla, Advocate; Mr. Udit Garg, Advocate; Mr. Himanshu Gupta, Advocate; Mr. Vinay Arya, Advocate; Mr. Ritvik Garg, Advocate for the petitioners; Mr. Zoheb Hossain, Special Counsel for the Enforcement Directorate (through VC); Mr. Jagjyot Singh Lalli, Director General of Police; Mr. Lokesh Narang, Senior Panel Counsel, Enforcement Directorate; Mr. Simon Benjamin, Special Police Prosecutor, Enforcement Directorate; Mr. Manish Verma, Advocate; Mr. Vivek, Advocate; Mr. Kartik Sabharwal, Advocate; Ms. Abhipriya Raj, Advocate for the Enforcement Directorate., The present order shall dispose of two petitions filed under Section 482 of the Code of Criminal Procedure, 1973 (Code of Criminal Procedure) i.e. CRMM‑2191‑2024 filed by Dilbag Singh alias Dilbag Sandhu and CRM‑M‑3385‑2024 filed by Kulwinder Singh, since common questions of law and facts arise in both the cases and both petitions arise from the same circumstances., This judgment is divided into the following sections: Prayers made in both the petitions; Brief facts of the case; Arguments on behalf of the petitioners; Arguments on behalf of the respondents; Arguments on behalf of the petitioners in rebuttal; Findings of this Special Court (Prevention of Money Laundering Act), Gurugram; Additional issues; Conclusion and relief., The petitioner Dilbag Singh alias Dilbag Sandhu most respectfully prays that the present petition may be allowed and the following orders be set aside: (a) the impugned Arrest Order dated 08.01.2024 (Annexure PS3) passed by Respondent No.2; (b) the impugned Arrest Memo dated 08.01.2024 (Annexure PS4) prepared by Respondent No.2; (c) the impugned Order dated 09.01.2024 (Annexure PS7) passed by the Special Court (Prevention of Money Laundering Act), Gurugram in application vide CRM No.35 of 2024 (Annexure PS6) in ECIR No. GNZO/19/2023 dated 23.09.2023 under Section 65 of the Prevention of Money Laundering Act, 2002, may be set aside since the petitioner was illegally arrested and remanded to Enforcement Directorate custody in gross abuse and violation of the provisions of the Prevention of Money Laundering Act, 2002, in view of the law laid down by the Supreme Court of India in Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. (2022) and V. Senthil Balaji v. The State represented by Deputy Director and others (2023) and Pankaj Bansal v. Union of India & Ors. (Criminal Appeal Nos. 3051‑3052 of 2023, dated 03.10.2023). The petitioner further prays that appropriate interim orders or directions may be issued to the respondents to release the petitioner forthwith from custody during the pendency of the present petition, and that this Special Court may pass any other order or direction it deems fit and appropriate in the facts and circumstances of the present case., The petitioner Kulwinder Singh most respectfully prays that the present petition may be allowed and the following orders be set aside: (a) the impugned Arrest Order dated 08.01.2024 (Annexure PS2) passed by Respondent No.2; (b) the impugned Arrest Memo dated 08.01.2024 (Annexure PS3) prepared by Respondent No.2; (c) the impugned Orders dated 09.01.2024 (Annexure PS7) and 16.01.2024 (Annexure PS9) passed by the Special Court (Prevention of Money Laundering Act), Gurugram in application vide CRM No.35 of 2024 (Annexure PS6) in ECIR No. GNZO/19/2023 dated 23.09.2023 under Section 65 of the Prevention of Money Laundering Act, 2002, may be set aside since the petitioner was illegally arrested and remanded to Enforcement Directorate custody in gross abuse and violation of the provisions of the Prevention of Money Laundering Act, 2002, in view of the law laid down by the Supreme Court of India in Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. (2022) and V. Senthil Balaji v. The State represented by Deputy Director and others (2023) and Pankaj Bansal v. Union of India & Ors. (Criminal Appeal Nos. 3051‑3052 of 2023, dated 03.10.2023). The petitioner further prays that appropriate interim orders or directions may be issued to the respondents to release the petitioner forthwith from custody during the pendency of the present petition, and that this Special Court may pass any other order or direction it deems fit and appropriate in the facts and circumstances of the present case., Eight FIRs were registered at Police Station Yamuna Nagar, District Haryana. The details are as follows: 1. FIR No. 0226 dated 14.10.2022 – Sections 120‑B and 420 of the Indian Penal Code; 2. FIR No. 0116 dated 23.03.2023 – Sections 120‑B, 411, 420 of the Indian Penal Code; 3. FIR No. 0111 dated 01.06.2023 – Sections 420, 467 and 471 of the Indian Penal Code; 4. FIR No. 0206 dated 19.09.2022 – Section 420 of the Indian Penal Code; 5. FIR No. 0216 dated 30.09.2022 – Section 471 of the Indian Penal Code; 6. FIR No. 0204 dated 14.09.2022 – Sections 120‑B and 420 of the Indian Penal Code; 7. FIR No. 0033 dated 10.02.2023 – Sections 420, 467 and 471 of the Indian Penal Code; 8. FIR No. 0054 dated 16.02.2023 – Sections 420, 467 and 471 of the Indian Penal Code., It is not in dispute that both petitioners have, till the date of arrest on 08.01.2024, not been made an accused in any of the above FIRs. In the reply dated 22.01.2024 filed in the case of petitioner Dilbag Singh, averments were made that the petitioners were accused in the eight FIRs, but both learned senior counsel for the petitioners and learned counsel for the respondents have fairly stated that the petitioners have not been made an accused in any of the said FIRs. The reply dated 30.01.2024 filed in the case of petitioner Kulwinder Singh correctly stated the same. The FIRs were registered under Sections 120‑B, 411, 419, 420, 467 and 471 of the Indian Penal Code, which are scheduled offences under Part A Paragraph I of Schedule 5 of the Prevention of Money Laundering Act, 2002. The Directorate of Enforcement recorded an Enforcement Case Information Report (ECIR) No. GNZO/19/2023 dated 23.09.2023 against various accused persons, screen plants and stone crushers to investigate the commission of the offence of money laundering as defined under Section 3 and punishable under Section 4 of the 2002 Act., A search was carried out from 04.01.2024 (08:25 hours) to 08.01.2024 (13:00 hours) at the residential premises of petitioner Dilbag Singh alias Dilbag Sandhu and Rajinder Singh, located at 410 Friends Colony, Yamuna Nagar, and another search was carried out from 04.01.2024 to 08.01.2024 at the premises of petitioner Kulwinder Singh, House No. 62, Sector 14, HUDA, Yamuna Nagar. The petitioners claim they were illegally detained/arrested on 04.01.2024. The prosecution states that petitioner Dilbag Singh was arrested on 08.01.2024 at 12:15 pm from the above‑said house and petitioner Kulwinder Singh was arrested on 08.01.2024 at 02:20 pm from House No. 62, Sector 14, HUDA, Yamuna Nagar. The prosecution also states that searches were carried out at other places and that written grounds of arrest were given to both petitioners on 08.01.2024. In the grounds of arrest with respect to petitioner Dilbag Singh, reference was made to the eight FIRs, particularly FIR No. 226 dated 14.10.2022, alleging that the plant and machinery of one Om Guru Unit was dismantled a year ago, but purchase records from 10.05.2022 to 17.06.2022 showed purchases amounting to approximately Rs 8.4 crore (168,830 MT) from M/s Mubarikpur Royalty Company and PS Buildtech, which were not found on the e‑Rawana portal, indicating fake e‑Rawana entries. The grounds also stated that an order of the National Green Tribunal dated 31.05.2022 directed JSM Foods Pvt. Ltd. and PS Buildtech not to mine boulder and gravel on the mining sites, and an order dated 18.11.2022 imposed huge penalties on M/s Development Strategies India Private Limited, Delhi Royalty Company and Mubarikpur Royalty Company. It was further stated that petitioner Dilbag Singh was the authorized signatory in two bank accounts of Development Strategies India Private Limited and that his wife and son had invested large amounts in Delhi Royalty Company. The prosecution alleged that petitioner Dilbag Singh willfully adopted a non‑cooperative attitude by evading queries or giving misleading replies. Similar background was given in the grounds of arrest for petitioner Kulwinder Singh, adding that he was also involved in the mining activities through his relatives and close persons., On 09.01.2024, both petitioners were produced before the Special Court (Prevention of Money Laundering Act), Gurugram, Haryana, and two separate applications were filed by Respondent No.2 under Section 65 of the 2002 Act read with Section 167 of the Code of Criminal Procedure seeking remand of the petitioners. By two separate orders dated 09.01.2024, seven days’ custody of both petitioners was granted to the Enforcement Directorate by the Special Judge, Gurugram. On 16.01.2024, both petitioners were produced before the Special Court for extension of custody and two separate applications were filed under Section 65 of the 2002 Act read with Section 167 of the Code of Criminal Procedure. The Special Judge, Gurugram, vide a common order dated 16.01.2024 extended the remand custody of both petitioners for a further period of seven days. On 23.01.2024, both petitioners were produced before the Additional Sessions Judge, Gurugram, and vide a common order dated 23.01.2024 they were remanded to judicial custody till 06.02.2024 and have since been lodged in Bhondsi Jail. The present two petitions have been filed in this background., Learned Senior Counsel for the petitioners submitted that under Section 19(2) of the Prevention of Money Laundering Act, 2002, the officer arresting the accused under Sub‑Section (1) must forward a copy of the order along with the material in his possession to the Adjudicating Authority in a sealed envelope as prescribed, and the Adjudicating Authority must retain the order and material for the period prescribed. The Central Government, by exercising powers under Sub‑Section (1) read with Clauses (a) and (b) of Sub‑Section (2) of Section 73 of the 2002 Act, framed the Prevention of Money‑Laundering (Forms and Manner of Forwarding a Copy of the Order of Arrest of a Person along with the Material to the Adjudicating Authority and the Period of Retention) Rules, 2005 (the 2005 Rules). According to Sub‑Rules (2) and (4) of the 2005 Rules, the arresting officer must place an acknowledgment slip in Form‑1 inside the envelope before sealing it and also place the sealed envelope inside an outer envelope along with an acknowledgment slip in Form‑II, and send the copy of the order of arrest and the material to the Adjudicating Authority. Rule 4 requires the Adjudicating Authority, or in its absence the designated officer, upon receipt of the outer sealed envelope and Form‑II, to fill in and sign Form‑II, affix its seal, and forward Form‑II to the arresting officer as a token of receipt. The entire procedure is provided under Rules 3 and 4, and read together with Section 19(2) of the 2002 Act, it is clear that the copy of the order of arrest and the material must be supplied to the Adjudicating Authority immediately after arrest. The petitioners argue that there is total non‑compliance of Section 19(2) because there is no reference to compliance with this provision in the application under Section 65 of the 2002 Act read with Section 167 of the Code of Criminal Procedure filed by the respondent authorities, nor in the grounds of arrest, personal search memo, arrest memo, arrest order or panchnama. No document makes any reference to compliance with Section 19(2), and the order dated 09.01.2024 (Annexure P‑7) shows complete non‑application of mind with respect to compliance of Section 19(2). No record shows that the material was forwarded in the manner required under the 2005 Rules., Learned Senior Counsel for the petitioners relied upon the judgment of the Supreme Court of India in V. Senthil Balaji v. State represented by Deputy Director and others (2023 SCC Online SC 934) to argue that compliance with the provisions of Section 19, including Section 19(2), is a solemn function of the arresting authority that admits no exception. The judgment observes that the magistrate before whom the case is presented for remand must satisfy himself about compliance with the safeguards enshrined in Section 19 of the Prevention of Money Laundering Act, 2002. Further reliance was placed on the Supreme Court judgment in Pankaj Bansal v. Union of India & others (2023 SCC Online SC 1244), which held that the court exercising power under Section 167 of the Code of Criminal Procedure to remand a person arrested by the Enforcement Directorate has a duty to verify that the conditions under Section 19 of the 2002 Act are duly satisfied; failure to do so renders the remand order invalid. The petitioners also relied on the Supreme Court judgment in Vijay Madanlal Choudhary & others v. Union of India & others (2022 SCC Online SC 929), particularly paragraphs 322 and 325, stating that the conditions in Section 19, including Section 19(2), are stringent and must be complied with to prevent arbitrary action by authorized officers., Learned Senior Counsel for the petitioners further submitted that under Section 19(1) of the 2002 Act, the officer, on the basis of material in his possession and after having reason to believe (which reason must be recorded in writing) that the persons are guilty of an offence punishable under the Act, may arrest them, must inform them of the grounds of arrest, and must produce them before the Special Court, Judicial Magistrate or Metropolitan Magistrate within 24 hours as per Section 19(3). The petitioners argue that they were illegally detained on 04.01.2024 and were not permitted to leave their houses, effectively constituting arrest on that date. The reply filed by the respondent authorities states that the petitioners were free in their residence from 04.01.2024 to 08.01.2024 and were allowed to rest, have food breaks and washroom breaks during the search period. The panchnama for petitioner Kulwinder Singh (Annexure P‑1) and for petitioner Dilbag Singh indicate that all persons present at the premises were allowed proper rest, food and washroom breaks. The petitioners rely on the Division Bench judgment of this Court in Pranav Gupta v. Union of India & others (2023 SCC Online P&H 3598), which holds that the date of arrest is the date when restraint is placed on the petitioner, not necessarily the date of formal arrest. They also rely on the Bombay High Court judgment in Ashak Hussain Allah Detha alias Siddique & another v. Assistant Collector of Customs (P) Bombay & another (1990 SCC Online Bombay 3), which observes that ‘arrest’ is not defined in the Code of Criminal Procedure and includes any restraint on personal liberty. Further reliance is placed on the Andhra Pradesh High Court judgment in Mrs. Iqbal Kaur Kwatra v. DGP (1996(1) APLJ 370) and the Supreme Court judgment in Gautam Navlakha v. National Investigation Agency (2022) 13 SCC 542, which consider house arrest as custody and forced detention. Consequently, the petitioners contend that they were not produced before a court of competent jurisdiction within 24 hours of the restraint commencing on 04.01.2024, rendering the arrest and subsequent proceedings illegal., Learned Senior Counsel for the petitioners submitted that Section 19(3) of the 2002 Act mandates that every person arrested under Sub‑Section (1) must be produced within 24 hours before the Special Court, Judicial Magistrate or Metropolitan Magistrate having jurisdiction. Section 167(2) of the Code of Criminal Procedure deals with jurisdiction of the court trying the case, whereas Section 19 specifically requires that the Special Court, Judicial Magistrate or Metropolitan Magistrate have jurisdiction over the offence. The Special Courts for offences under the 2002 Act are constituted under Section 43 of the Act, and the explanation to Section 44 provides that their jurisdiction is not dependent on any order passed in respect of the scheduled offence. The Central Government, by notification dated 19.01.2021 (Annexure P‑8), stipulated that for offences committed in the revenue district of Yamuna Nagar, the competent court of jurisdiction is the Court of Sessions Judge, Ambala, and not the Sessions Judge, Gurugram, where the petitioners were produced. Accordingly, for compliance with Section 19(3), the competence of the court should have been examined on 09.01.2024 when the petitioners were first produced. The petitioners argue that the applications for remand and the grounds of arrest do not show that any part of the offence was committed within the territorial jurisdiction of the Special Court at Gurugram. Since the offence of money laundering must be committed within the jurisdiction of the court trying the case, the Special Court, Gurugram, lacked jurisdiction. The order dated 09.01.2024 (Annexure P‑7) makes no reference to compliance with Section 19(3). The order dated 16.01.2024 erroneously observed that jurisdiction could be determined at the time of taking cognizance of any complaint filed by the Enforcement Directorate, without considering that the magistrate must peruse the record and ensure that the mandatory requirements of Section 19, including Section 19(3), are met. The petitioners contend that the sole plea raised by the respondent authorities was that certain raids were conducted at Faridabad, thereby conferring jurisdiction on the Sessions Court at Gurugram, which is insufficient. Consequently, the impugned orders of remand must be set aside for lack of jurisdiction., Learned Senior Counsel for the petitioners further submitted that the grounds of arrest for both petitioners do not disclose the actual material on which the arresting officer based the conclusion that the petitioners are guilty of any offence under the 2002 Act.
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It is further submitted that the grounds of arrest are absolutely vague, inasmuch as it is not even stated what is the connection of the two petitioners, who were not even accused in any of the FIRs, with the said FIRs, which have been tabulated in the grounds of arrest, nor any specific statement has been referred to, nor any specific material has been referred to, much less annexed along with the grounds of arrest so as to show or inform the petitioners as to what is the case against them. It is stated that such vague grounds of arrest violate the right of the petitioners under Article 22 of the Constitution of India as well as the right of the petitioners to defend themselves and to overcome the stringent provisions of Section 45 of the Prevention of Money Laundering Act, 2002 to be released on bail. It is argued that since the petitioners have not been supplied with a copy of the Enforcement Case Information Report, the grounds of arrest are the most important document on the basis of which the petitioners are to be informed about the case against them so as to enable the petitioners to prepare their defence and set up a case to agitate before the Courts that the petitioners' case satisfies the conditions of Section 45 of the Prevention of Money Laundering Act, 2002., It is further argued that even if the grounds of arrest of both the petitioners are taken on their face value, still, no person including the Arresting Officer could come to a conclusion that there is reason to believe that the petitioners are guilty of the offences committed under the 2002 Act. Learned senior counsel for the petitioners has made a specific reference to the applications filed in both the cases and has submitted that the grounds of arresting the petitioners were stated to be their non‑cooperation and the petitioners having given vague and evasive replies. It is stated that in the present case, no notice under Section 50 had been issued to either of the two petitioners before the search had been conducted and it is impossible to know on what basis the said plea had been taken in the grounds of arrest. It is further submitted that it has been repeatedly held that merely by stating that the petitioners were evasive cannot be made the basis of arresting the petitioners as the Enforcement Directorate cannot expect an admission of guilt from them. Specific reference has been made to the judgment of the Honorable Supreme Court of India in Pankaj Bansal's case (supra) in support of the said argument. Further reliance has been placed upon the judgment of the Division Bench of the Special Court in the case titled Roop Bansal v. Union of India and others, reported as 2023 SCC Online P&H 3597., Learned senior counsel for the petitioners has further referred to the application under Section 65 of the Prevention of Money Laundering Act, 2002 read with Section 167 of the Code of Criminal Procedure filed by the authorities with respect to both petitioners and has submitted that the same does not reflect compliance with Section 19(1) of the Prevention of Money Laundering Act, 2002. It is argued that even a perusal of the impugned order would show that there is no finding in the said order to the effect that the Court had satisfied itself and had perused the grounds of arrest to ascertain whether the Enforcement Directorate had recorded the reasons to believe that the petitioners were guilty of an offence under the 2002 Act and that there was proper compliance of the mandate of the said section. It is argued that in Pankaj Bansal's case (supra), it was specifically observed that it is the duty of the magistrate to carry out the said exercise and come to a finding regarding the said aspect, which has not been done in the present case and therefore, the impugned action of the authorities deserves to be set aside on the said ground also., It is further stated that, as per the additional reply filed, para No.3(a) to (d), the authorities stated that on 10 January 2024 the officer of the Directorate preliminarily scrutinized all the seized material. It is argued that the petitioners, as per the respondent authorities, were arrested on 8 January 2024 and the remand applications were filed and granted on 9 January 2024, whereas, as per their own pleadings, the first occasion on which they scrutinized the seized material is 10 January 2024. Thus, it is apparent that the arrest was made and remand sought without even scrutinizing the material on record and therefore the mandatory requirement of Section 19(1) of the Prevention of Money Laundering Act, 2002, forming the reason to believe that both petitioners were guilty of the offence, has not been complied with. It is further submitted that from the said averment it is clear that the material was never produced before the Special Court before the remand was ordered on 9 January 2024 as it is their own case that they have scrutinized the material on 10 January 2024. It is also pointed out that neither in the pleadings nor in the grounds of arrest nor in the applications of remand has it been averred by the respondents that the Arresting Officer had recorded the reasons in writing of his belief based on the material in his possession that the petitioners were guilty of the offence punishable under the Prevention of Money Laundering Act, 2002., Learned counsel for the respondents first referred to Section 19(3) of the Prevention of Money Laundering Act, 2002 and submitted that both petitioners in both petitions had been produced before the competent Special Court having jurisdiction, both with respect to subject matter as well as territorial jurisdiction within 24 hours as provided by Section 19(3) of the Act. Reference has been made to Annexure R‑2 annexed along with the additional reply dated 29 January 2024 filed on behalf of the respondents, which is the Panchnama dated 5 January 2024. It is submitted that a perusal of the said Panchnama shows that the officers of the Enforcement Directorate conducted a search at House No. 816, Sector 15‑A, Faridabad and the search started at 08:25 am on 4 January 2024 and concluded at 02:20 am on 5 January 2024, and several recoveries including cash of Rs 7,74,600 were found, of which an amount of Rs 7.50 lakh was seized and a balance amount of Rs 24,600 was released for household expenses. It is submitted that the said house belongs to Raman Ojha who, as averred in paragraph 2 of the additional reply, was also a member of the syndicate and was a 50 percent partner in Delhi Royalty Company, which was the partnership firm in which huge amounts of proceeds of crime were deposited in cash in the bank account of Delhi Royalty Company and Raman Ojha was the authorised signatory in the bank account No. 50200034561986 of the Delhi Royalty Company. Learned counsel for the respondents further pointed out that it has been averred in paragraph 2 that the money was routed to the accounts of petitioner Dilbag Singh, his family members and their businesses. It is argued that the said Delhi Royalty Company, as stated in paragraph 2 of the additional reply, is the same company referred to in the grounds of arrest of petitioner Dilbag Singh and it has also been stated in the said grounds of arrest that the wife of petitioner Dilbag Singh, namely Neetu Kaur, and his son, namely Uday Singh Sandhu, have invested huge amounts in the Delhi Royalty Company. It is argued that thus a part of the cause of action for the offence of money laundering arose in Faridabad, which is under the jurisdiction of the Gurugram Special Court., Learned counsel has referred to the provisions of Section 177 and Section 178 of the Code of Criminal Procedure, 1973 to highlight that where the offence consists of several acts done in different local areas, the same can be tried in any of the Courts having jurisdiction over any such local area. It is argued that since the offence of money laundering, as defined in Section 3, is very wide and includes concealment, possession, acquisition and use of the proceeds of crime, any Special Court having jurisdiction other than the place where the proceeds of crime are concealed or possessed and thereafter recovered would have jurisdiction to try the offence and would also be the competent Court of jurisdiction within the meaning of Section 19(3) of the Prevention of Money Laundering Act, 2002. In support of his arguments, learned counsel for the respondents relied upon the judgments of the Honorable Supreme Court of India in Rana Ayyub v. Directorate of Enforcement through its Assistant Director, reported as 2023 SCC Online SC 109, and highlighted paragraphs 3 to 6, 18, 38 to 40 and 45 of the said judgment. Further reference has been made to Section 462 of the Code of Criminal Procedure, 1973 to argue that no finding, sentence or order of any Criminal Court is to be set aside merely on the ground that the inquiry, trial or other proceedings took place in a wrong sessions division, district or subdivision unless it appears that such error has in fact occasioned a failure of justice., Learned counsel has submitted that although the Gurugram Court has jurisdiction as a part of the crime was committed within its jurisdiction, even assuming that a part of the crime was not committed within the jurisdiction of the Gurugram Court, the same would not call for setting aside the orders of remand as the same would be saved in view of the provisions of Section 462 of the Code of Criminal Procedure, more so when the petitioners have not been able to show any prejudice caused to them or that there has been any failure of justice in the petitioners being produced before the Gurugram Court. For this aspect, reliance has been placed upon the judgment of the Honorable Supreme Court of India in Krishna Kumar Variar v. Share Shoppe, reported as (2010) 12 SCC 485, as well as the judgment of the Honorable Supreme Court of India in Kaushik Chatterjee v. State of Haryana & Ors., reported as (2020) 10 SCC 92. Learned counsel for the respondents also referred to Section 46 and Section 65 of the Prevention of Money Laundering Act, 2002 to highlight that the provisions of the Code of Criminal Procedure, which are not inconsistent with the provisions of the 2002 Act, are to apply to the proceedings under the 2002 Act also and that since there is nothing inconsistent to the provisions of Sections 177, 178 and 462 of the Code of Criminal Procedure in the 2002 Act, thus, the said provisions would apply to the 2002 Act with full vigour., Learned counsel for the respondents further submitted that without prejudice to the arguments already raised, the correct interpretation of the provisions of Section 19(3) of the Prevention of Money Laundering Act, 2002 would be that a person who has been arrested under sub‑section (1) of Section 19 could be produced before any Special Court and the use of the word jurisdiction in the said sub‑section would only be in a situation where the said persons are to be produced before the Judicial Magistrate or Metropolitan Magistrate. Since the Judicial Magistrate or the Metropolitan Magistrate would otherwise have no jurisdiction to try the offence as it is only a Special Court (which has been notified by the Central Government in consultation with the Chief Justice of the High Court under Section 43 to be a Special Court) which is competent to hold the trial with respect to offences under the Prevention of Money Laundering Act, 2002 and the said Court has to be a Court of Sessions and cannot be a Court of Judicial Magistrate or Metropolitan Magistrate. It is submitted that Section 44 of the Prevention of Money Laundering Act, 2002 also supports the said interpretation., It is next contended by learned counsel for the respondents that the order dated 16 January 2024 has not been assailed by the petitioner Dilbag Singh in his petition and the plea with respect to jurisdiction was specifically raised in the said order and the Special Judge, vide the said order, has rejected the plea and the same has not been challenged in the petition by the petitioner Dilbag Singh. With respect to this, reliance has been placed upon the judgment of the Honorable Supreme Court of India in the case titled Mumbai International Private Limited v. Golden Chariot Airport and another, reported as (2010) 10 SCC 422, particularly paragraph 45, to contend that once the petitioner had elected to raise the plea before the Special Court and after having suffered an order, the non‑challenge of the same would bar the petitioner from raising the plea in view of the doctrine of election. Further reliance has been placed upon the judgment of the Honorable Supreme Court of India in State of Punjab and others v. Gurdev Singh, reported as 1991 (4) SCC 1, to contend that even an order which is a nullity has to be challenged. It has been further pointed out that the reliance sought to be placed upon paragraph 3(d) of the additional affidavit on behalf of the petitioner to contend that for the first time the respondent authorities had scrutinized the material on 10 January 2024 is incorrect, as there is no admission in the said paragraph stating that the authorities for the first time scrutinized the material and whereas a perusal of Annexure R‑2 annexed along with the additional affidavit shows that the Panchnama is dated 5 January 2024 with respect to the search carried out in the premises at Faridabad and the same is prior to 9 January 2024, the date on which the petitioners were produced before the Special Court. Reference has also been made to an order dated 9 January 2024, particularly paragraph 7, to show that the material was also produced before the Special Court and the argument with respect to the said material being produced was raised before the Special Court. It is thus submitted that the pleas raised by the petitioner are misconceived and deserve to be rejected., To rebut the argument made on behalf of the petitioners with respect to their illegal detention from 4 January 2024, learned counsel for the respondents referred to page 12 of the petition of Dilbag Singh to highlight that, as per the case of the petitioners, they were detained in custody since 4 January 2024. It is argued that the said averments have been specifically replied in paragraph 29(b) of the first reply dated 22 January 2024 filed in the case of Dilbag Singh, in which it has been stated that no person was detained during the search proceedings and all the persons were given proper rest and food during the course of the proceedings. Paragraph 35 of the said reply has also been highlighted to show that in response to the averments made in ground (c) in the petition, it has been submitted that there were no restrictions imposed upon the petitioners until their arrest on 8 January 2024 and the petitioners and other persons were free to loiter within their own premises during the duration of the search as per general practice and the same cannot be termed as detention and that Section 17 of the Prevention of Money Laundering Act, 2002, which deals with search and seizure, mandates certain requirements which were duly complied with. Learned counsel for the respondents further referred to the additional reply dated 29 January 2024 to show that it has been averred therein that by virtue of Rule 3 sub‑rules 7 and 8 of the Prevention of Money‑Laundering (Forms, Search and Seizure [or Freezing] and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the Period of Retention) Rules, 2005, the petitioners and other persons who were present at the premises were in possession/control of the locker, safe, almirah, documents etc., and thus it was important to secure their presence within the premises in order to have access to, inspect/examine their contents and to avoid any sort of tampering with the potential proceeds of crime and also that they were allowed to follow their daily routine and were not detained or compulsorily retained in the premises. It has further been averred that the petitioners were in the premises of their own will and themselves offered to be in the premises during the course of the search., Learned counsel has referred to the 2005 Rules, more specifically Rule 3 Sub‑rule 7 and Sub‑rule 8 as well as Rule 4 Sub‑rule 2, in support of his arguments to the effect that since the occupant of the building has been permitted to attend the search and also the respondent authorities have the power to require any person who is the owner or is in immediate possession to open the locker or safe and also to allow access to inspect the same, thus keeping the petitioners in the premises was necessary for carrying out the search. It is further submitted that even as per Rule 4 Sub‑rule 2, the seizure memo was to be delivered to the occupant of the building and the provisions of Sub‑rules 3 and 4 are also to a similar effect and thus the presence of the petitioners who are owners/occupants of the building was required for the said purpose. Learned counsel has also relied upon the provisions of Section 100 of the Code of Criminal Procedure, more specifically sub‑sections 6 and 7, to argue that since the occupant of the place searched was to be permitted to attend the search and thereafter the copy of the list prepared of the seized materials was to be delivered to the said persons, it was necessary for the said persons to be present at the time of search and inspection. On this aspect, reliance has been placed upon the judgment of the Delhi High Court in Gautam Thapar v. Directorate of Enforcement, reported as 2021 SCC Online Delhi 4599, and also the judgment of the Honorable Supreme Court of India in Sundeep Kumar Bafna v. State of Maharashtra and another, reported as 2014 (16) SCC 623. It is submitted that on the basis of the above‑said facts and law laid down in the aforesaid judgments, it cannot be said that the petitioners were in illegal custody., Learned counsel for the respondents has further submitted that the plea on the aspect of grounds of arrest which has been raised by the petitioners is in ground 3 and the averment in the said ground is only to the effect that in the grounds of arrest, the arresting officer had stated that the petitioners did not cooperate with the investigation and had given vague and evasive replies on account of which the petitioners have been arrested. It is submitted that the said reason is not the sole reason for arresting the petitioners and the reasons for arresting the petitioners are clearly coming from the grounds of arrest which have been annexed along with the petition and in the said grounds of arrest, the details of the FIR which are pertaining to the scheduled offences have been mentioned and the background of the case has been given and every such aspect has been mentioned which in accordance with law was required to be mentioned in the grounds of arrest. It is stated that in paragraph 13, it has also been stated by the Assistant Director that on the basis of the material placed on record, he had reason to believe that the petitioners in both the cases are guilty of the offence of money laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act. It is argued that the petitioners have not laid any specific challenge to the said grounds of arrest and have not even averred that the said grounds of arrest are insufficient or that by reading the grounds of arrest, the offence is not made out. It is argued that since the petitioners had filed the petitions, the onus to show that the contents of the grounds of arrest were incorrect and that the petitioners were not linked to the facts and circumstances which had been mentioned in the grounds of arrest was on the petitioners, which they have failed to discharge. It is thus submitted that the said ground of challenge is also absolutely misplaced and deserves to be rejected., On the aspect of non‑compliance of the conditions contained in Section 19(2) of the Prevention of Money Laundering Act, 2002, learned counsel for the respondents has referred to paragraph No. 325 of the judgment in Vijay Madanlal Chaudhary's case (supra) to contend that reference was only made to pre‑conditions to be fulfilled by the authorised officer before effecting arrest. It is argued that provisions of Section 19(2) of the Act deal with a situation which is subsequent to the arrest and thus, the intent of the Honorable Supreme Court while observing that the conditions in Section 19 of the Act are stringent and are of a higher standard, is with reference to the provisions of Section 19(1) of the Act and not with reference to Section 19(2) of the Act. It is further argued that the condition under Section 19(1) of the Act is referable to Article 22 of the Constitution of India, but the compliance of Section 19(2) of the Act is not referable to the same and thus, delay in compliance of the same would be a mere irregularity and not an illegality. It is further submitted that even if compliance of Section 19(2) of the Act is taken to be mandatory, then also breach of the same cannot be the basis for setting aside the impugned order and for holding the arrest of the petitioners to be illegal, as no prejudice has been shown by the petitioners on account of the alleged breach. Learned counsel has further referred to paragraph No. 39 of V. Senthil Balaji's case (supra) to contend that it had been observed in the said paragraph that any non‑compliance of the mandate of Section 19(1) of the Act would vitiate the very arrest itself, but although with respect to sub‑section 19(2), it had been stated that the same is a solemn function of the arresting authority which brooks no exception, yet the consequence of the same has not been mentioned in the said paragraph. Further reliance has been placed upon the judgment of the Delhi High Court in the case of Neeraj Singal v. Directorate of Enforcement, pronounced on 8 January 2024, to contend that in the said case, the accused was arrested on 9 June 2023 at 10:25 pm, which was a Friday night and the compliance of Section 19(2) of the Act was done on 12 June 2023 on account of the fact that 10 June 2023 and 11 June 2023 were Saturday and Sunday, on which dates the office of the Adjudicating Authority was closed, and this was accepted as due compliance of Section 19(2) of the Act. Learned counsel has further referred to Section 157 of the Code of Criminal Procedure to highlight that even in that provision there is a requirement that the police officer concerned is required to forthwith send a report, i.e., FIR, to the Magistrate. It is stated that the said provisions are similar to the provisions of Section 19(2) of the Act and the Honorable Supreme Court in the case of Sheo Shankar Singh v. State of Uttar Pradesh, reported as (2013) 12 SCC 539, in paragraphs 30 and 31, had observed that mere delay in sending the FIR to the magistrate by itself would not have any effect on the case of the prosecution unless serious prejudice was demonstrated to have been suffered by the accused therein. On this aspect, reliance has also been placed upon a judgment of the Honorable Supreme Court in the case titled State of Rajasthan v. Daud Khan, reported as 2016 (2) SCC 607. It is argued that in the present case, no such prejudice has been demonstrated. Learned counsel for the respondents has further referred to paragraph No. 3 of the additional reply dated 29 January 2024 (at internal page 16) to contend that the reasons for delay in compliance of the provisions of Section 19(2) of the Act have been detailed in the said paragraph and the said reasons are sufficient to show compliance of Section 19(2) of the Act. Reference was also made to the remand order passed by the Special Court dated 9 January 2024 to contend that the Court had considered the remand papers and other relevant material and the allegations made by the prosecution including the fact that the petitioners' attitude was non‑cooperative and after considering everything had observed that a prima facie case for the commission of the offence under the Act had been found and thereafter granted seven days custody to the Directorate of Enforcement. It is submitted that compliance of Section 19(2) is not required to be shown to the Magistrate as the same is to be forwarded to the Adjudicating Authority. It is further submitted that the said order is legal and in accordance with law and reflects due application of mind and thus, deserves to be upheld. It is further submitted that in the present case since no personal search of the petitioners has been done before arrest, Section 18 of the Prevention of Money Laundering Act, 2002 has not been invoked., Learned senior counsel for the petitioners in rebuttal has submitted that the facts of the present case would clearly reveal that there was illegal detention of both petitioners from 4 January 2024 to 8 January 2024. It is submitted that respondent No.2 has filed an additional reply dated 29 January 2024 in the case of the petitioner Dilbag Singh @ Dilbag Sandhu which cannot be read to contradict the averments made in the first reply dated 22 January 2024 as no amendment of the first reply has been sought nor the same has been allowed. It is stated that even if the additional reply is taken into consideration, a perusal of Ground F (at internal page 18) of the reply would show that reliance has been placed by the respondent authorities on Rule 3(7) and (8) of the 2005 Rules (II) and it has been averred in the said reply that the petitioners and other persons present in the premises were in possession/control of locker, safe, almirah, documents etc. and hence it was important to secure their presence within the premises. Learned senior counsel has highlighted the words “to secure their presence within the premises” and has submitted that the expression used in the reply furthers the case of the petitioners that they were illegally detained from 4 January 2024 till 8 January 2024 in the house against their wishes and were not permitted to go out. In support of the said argument, learned senior counsel for the petitioners has referred to Section 17 of the Prevention of Money Laundering Act, which deals with search and seizure, and also the 2005 Rules which have been relied upon by the respondent. It is argued that as per sub‑rule 8 of Rule 3 of the 2005 Rules (II), an occupant or some person on his behalf has been given the right to attend the search and the provision alone would show that the petitioners or any person who is an occupant could not have been detained in the premises for carrying out the search as staying in the premises is an option with the occupant or a person on his behalf. It is argued that the provision completely demolishes the stand of the respondent authorities to the effect that for the purpose of search, they have the right to keep the petitioners and other persons in the premises so as to further their search.
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It is argued that even in sub Rule 7, which has been relied upon by the respondent authorities, the expression \may\ and not \shall\ has been used and thus a person who is the owner and is in possession may be required to open the same and allow access. Where such person fails to comply with any such requirement, the authorities are entitled to break open the lock of such box, locker, safe etc. Thus, even reading of the said provisions shows that in case of non‑presence or non‑compliance of the order of the authorities, the authorities would have a right to break open the box etc., not hampering their search., Learned senior counsel has further referred to the panchanama in both the cases to further argue that even a perusal of the said two panchanamas would clearly show that no such direction was ever given to the petitioners and the other persons on 5th, 6th, 7th and 8th January 2024 and there is no document placed on record to show that the authorities have ever directed either of the two petitioners to open any box, locker, safe, almirah etc. for the purpose of search and inspection., It is argued that as per panchanama (Annexure P‑1) in the case of petitioner Dilbag Singh @ Dilbag Sandhu, it has been mentioned that search had started from 08:25 hours on 04.01.2024 and had concluded on 08.01.2024 at 13:00 hours and the details of the acts done at the time of the said search have been mentioned. It has been stated that the actual search had started at 08:40 hours on 04.01.2024 and it is only on 04.01.2024 that the officer had searched the premises, checking the documents in the cupboard, almirahs, drawers etc. There is no such averment in the said panchanama with respect to any subsequent search of compounds/almirahs after 04.01.2024 and thus, keeping the petitioners in the premises without their consent for the purpose of the search would amount to illegal detention., Reference has also been made to the panchanama in the case of petitioner Kulwinder Singh which has also been annexed as Annexure P‑1 in the said petition. It has been argued that the search had started on 04.01.2024 and that on the same day the lock of the room, the key of which was not available, was broken by calling a locksmith. The locksmith was called by Rakesh Kumar, Assistant Director, and the breaking of the lock was done in the presence of Manoj Kumar, son of Bhim Singh, who had been working as Accountant for the last five years for Kulwinder Singh. The panchanama records that on the same day the almirah in the room was also opened by breaking its lock and that no such incident has been mentioned on the subsequent dates i.e., 05th, 06th, 07th and 08th January 2024., In the concluding part of the said panchanama in the case of petitioner Kulwinder Singh, it has been specifically mentioned that everyone present at the premises was allowed proper rest, food break and washroom break. From the same, it is apparent that there was complete control of the respondent on the movements of the petitioners and their family members and that the respondent authorities were allowing the petitioners and family members to take rest, food and washroom breaks., Learned senior counsel for the petitioners has submitted that if the plea of the respondent authorities that they are entitled to secure the presence of the petitioners and keep them in the premises for the purpose of search is taken to be true, then such act would also violate Section 18 of the Prevention of Money Laundering Act, 2002, which, according to the respondent authorities, has not been invoked in the case of the petitioners., It is argued that a perusal of Section 18 of the Prevention of Money Laundering Act, 2002 would show that if an authority has reason to believe, which must be recorded in writing, that any person has concealed about his person or anything under his possession, ownership or control, any record or proceeds of crime which may be useful for or relevant to any proceedings under the Act, then the authority is entitled to search that person and seize such record or property. In such a case, it is incumbent to take the person within twenty‑four hours to the nearest Gazetted Officer, superior in rank to him, or a Magistrate. Sub‑section (4) provides that the person cannot be detained by the authorities for more than twenty‑four hours prior to taking him before the Gazetted Officer or the Magistrate, and sub‑section (5) provides that after the person has been produced before the Gazetted Officer or a Magistrate, if the officer sees no reasonable ground for search, the person is to be immediately discharged., It is submitted that since it is the admitted case of the respondent authorities that Section 18 has not been invoked, the plea raised in the reply and during the arguments would be violative of the mandatory provisions of Section 18 of the Prevention of Money Laundering Act, 2002., Learned Senior counsel for the petitioners on the said aspect has relied upon a judgment of the Hon'ble Chhattisgarh High Court in Subhash Sharma Vs. Directorate of Enforcement of Government of India, reported as 2022 (ILR) Chhattisgarh 2202, particularly paragraphs 10 to 15., It is argued that the petitioners have a strong objection to the averments made in the last paragraph (at page 19 of the additional reply dated 29.01.2024) and submit that the same are contrary to the documents and the earlier reply filed and have been filed only to overcome the submissions made on behalf of the petitioners on the first date of hearing., It is argued that the petitioners have been illegally detained from the beginning, contrary to their will, and that a bald assertion made in the last part of the additional reply, being contrary and an after‑thought, deserves to be rejected., Learned senior counsel for the petitioners has submitted that a reading of Section 19(1) of the Prevention of Money Laundering Act, 2002 would clearly show that before arresting a person, the officer concerned must have reason to believe, recorded in writing, that the person sought to be arrested is guilty of an offence punishable under the Act, and that the reason to believe must be based on material in his possession., It is argued that the provision necessarily envisages that the material collected by the officer, on the basis of which he forms the reason to believe, must be with the officer on the date of making the arrest and, as soon as may be, he is required to inform the accused about the grounds of such arrest., It is further argued that under sub‑section (2) of the Prevention of Money Laundering Act, 2002, the officer is duty‑bound to send the material already collected to the Adjudicating Authority in a sealed envelope so that it cannot be tampered with. The officer must demonstrate that on the date of arrest he possessed the material supporting his reason to believe that the person arrested was guilty; any delay in sending the material could allow post‑arrest material to be forwarded to justify the prior arrest., It is stated that for this reason the expression \immediately after arrest\, which signifies a higher degree of urgency, rather than \as soon as may be\, has been used in sub‑section (2) of the Prevention of Money Laundering Act, 2002., It is argued that, as per the latest judgment of the Hon'ble Supreme Court in Ram Kishor Arora Vs. Directorate of Enforcement, reported as 2023 (SCC Online) SCC 1682, the expression \as soon as may be\ means within 24 hours of the arrest of the accused, within which he must be informed in writing about the grounds of arrest., It is further stated that the 24‑hour period is prescribed in view of the expression used in Section 19(1) of the Prevention of Money Laundering Act, 2002 and because the grounds of arrest must be drafted by the officer based on material already in his possession., It is stated that, conversely, under sub‑section (2) the expression used is \immediately\ and this necessarily means that, well before the expiry of 24 hours from the time of arrest, the material must be sent to the Adjudicating Authority, as the material is already in the authority's possession before the person is arrested., It is further stated that sending the material within 24 hours and prior to the person being produced before the magistrate for remand is necessary to demonstrate to the magistrate that Sections 19(1) and 19(2) of the Prevention of Money Laundering Act, 2002 have been complied with. Only when the material has been sent and the fact specifically mentioned in the application for remand can the Hon'ble Special Court appreciate the fact and record it in its order as per the mandate of law., It is stated that in the present case, since the respondent authority admits that it did not send the material collected on the date when remand was granted (i.e., 09.01.2024) on the first occasion, there is a clear violation of the provision of Section 19(2) of the Prevention of Money Laundering Act, 2002, further compounded by the absence of any observation in the impugned order regarding compliance with that provision., Learned senior counsel for the petitioners has vehemently submitted that a perusal of paragraph 3 of the additional reply dated 29.01.2024 would clearly show complete non‑compliance of Section 19(1) and Section 19(2) of the Prevention of Money Laundering Act, 2002., It is further submitted that the entire sequence of events, as set out by the respondents in paragraphs 3(a) to 3(e), shows that certain cash, documents and vehicles were seized, for which preliminary scrutiny was required. The final search was conducted till 03:00 PM, after the petitioners were arrested at 12:15 PM and 2:20 PM on 08.01.2024. It is argued that it is nowhere stated that before the arrest the material had already been scrutinized, nor that the arresting officer recorded the reason to believe in writing, thus violating Section 19(1) of the Prevention of Money Laundering Act, 2002., It is argued that, even as per the averments in sub‑clause (c), the only issue considered by the Special Court was jurisdiction, and no averment was made that compliance with Sections 19(1) and 19(2) of the Prevention of Money Laundering Act, 2002 was being considered., It is submitted that sub‑clause (d) shows that, according to the respondents, preliminary scrutiny of documents was done on 10.01.2024, i.e., two days after the petitioners' arrest and after remand had already been sought, indicating that the arrest was made without any scrutiny of the material, and therefore the arresting officer could not have had a reason to believe, on the basis of the record, that the petitioners were guilty., It is stated that although the respondents claimed that 110 officers and 100 CRPF personnel were involved in the process, the simple act of forwarding the material already in the officers' possession was not done by respondent No.2. Consequently, the reasons given for non‑forwarding the material under Section 19(2) of the Prevention of Money Laundering Act, 2002 in the additional reply dated 29.01.2024 are completely unjustifiable, resulting in non‑compliance of Section 19(2) in the present case., Learned Senior Counsel for the petitioners has further referred to paragraphs 29(h) and (i) (Internal page 18) of the first reply dated 22.01.2024 filed on behalf of the authorities and submitted that even in the said paragraph the respondent authorities did not aver that, on the basis of material in their possession, they had reason to believe the petitioners were guilty of an offence punishable under the Act. Instead, they stated that the arrest was made on finding a prima facie case of money laundering against the petitioner and on the observation that the petitioner was involved in the commission of the offence, which is not a sufficient reason for arrest., It is further submitted that both petitioners are not accused in any of the FIRs referred to in the grounds of arrest, and a perusal of the grounds of arrest does not show that the proceeds of crime alleged to be in the petitioners' possession or recovered from them are related to the scheduled offences in the eight FIRs mentioned., Learned Senior Counsel for the petitioners has further submitted that a perusal of paragraph 311 of the judgment in Vijay Madanlal Choudhary's case (supra) clearly states that reasons to believe must be recorded in writing and contemporaneously forwarded to the Adjudicating Authority along with the material in the officer's possession in a sealed envelope to be preserved by the Authority., Reference has been made to the New International Webster's Comprehensive Dictionary of the English Language to highlight that the word \contemporaneous\ means \at the same time\. It is submitted that the legislature intended the material to be sent contemporaneously, i.e., immediately, to the Adjudicating Authority to avoid any manipulation or subsequent addition of documents to justify a prior arrest., It is further submitted that, in paragraph 322 of the Vijay Madanlal Choudhary judgment (supra), it was observed that the safeguards provided are to ensure fairness, objectivity and accountability of the authorised officer, and the term \objectivity\ was also used in the subsequent judgment in Pankaj Bansal's case (supra) in paragraph 5., Learned senior counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court of India in State of Punjab vs. Davinder Pal Singh Bhullar and others, reported as (2011) 14 Supreme Court Cases 770, to contend that it is a settled proposition of law that if an initial action or order is found to be illegal, all subsequent and consequential proceedings automatically fall and the principle applies equally to judicial, quasi‑judicial and administrative proceedings. If an order at the initial stage is bad in law, all further proceedings consequent thereto are non‑existent and must be set aside., It is argued that, in the said judgment, the Hon'ble Supreme Court observed that once the impugned order is found to be illegal, the consequential subsequent proceedings, orders, FIRs and investigation stand vitiated and are liable to be declared non‑existent and set aside., Learned Senior Counsel for the petitioners has further relied upon a judgment of the Hon'ble Supreme Court in Pebam Ningol Mikoi Devi Vs. State of Manipur and others, reported as 2010(9) SCC 618, to contend that even under statutes requiring subjective satisfaction, contrary to the objective satisfaction required under the Prevention of Money Laundering Act, 2002, the Supreme Court examined whether the material to form the subjective satisfaction justifying detention existed., It is submitted that the Supreme Court relied upon an earlier judgment in State of Rajasthan Vs. Daud Khan, reported as (2016) 2 SCC 607, to state that material forming subjective satisfaction must also be communicated to the detenue. In that case, the detention was held to be bad and was set aside., It is further submitted that the custody of the Enforcement Directorate is now over and the petitioners have been sent to judicial custody; therefore, no useful purpose would be served by keeping the petitioners in further incarceration., It is further submitted that a reading of Section 19(3) of the Prevention of Money Laundering Act, 2002 would clearly show that the word \jurisdiction\ refers to Special Courts, Judicial Magistrates and Metropolitan Magistrates, as the case may be, and not merely to Judicial Magistrates and Metropolitan Magistrates. The provision uses the term \jurisdiction\ and not \territorial jurisdiction\., Learned Senior Counsel for the petitioners has referred to Section 4(4) of the Code of Criminal Procedure to contend that with respect to offences under statutes other than the IPC, the investigation, inquiry and trial are to be conducted subject to the enactment then in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, and therefore the provisions of the Prevention of Money Laundering Act, 2002 would prevail in the instant case., Learned Senior Counsel for the petitioners has submitted that the panchanama dated 05.01.2024 (Annexure R‑2) and the alleged recovery of Rs.7.50 lacs from Faridabad have no connection with the petitioners, as the premises is neither owned nor possessed by either petitioner. According to the respondent authorities, the premises is owned and possessed by Raman Ojha, with whom the petitioners have no connection., It is argued that the alleged recovery from the residence of the third person cannot be stated to be a recovery from the present petitioners so as to confer jurisdiction on the Hon'ble Special Court at Gurugram, especially on 09.01.2024 when the petitioners were produced before the said Court. The petitioners are residents of Yamuna Nagar and the search was carried out in their premises at Yamuna Nagar; the application for remand of both petitioners does not show any recovery or cause of action that would arise within the jurisdiction of the Special Court at Gurugram., The Hon'ble Special Court has heard the arguments raised on behalf of the petitioners as well as the respondents and has perused the paper books. It is of the opinion that both petitions deserve to be allowed for the reasons enumerated hereinbelow., At the outset, it would be trite to note the relevant provisions of law as well as the relevant judgments on the said issue. Section 19 of the Prevention of Money Laundering Act, 2002, which deals with the power to arrest and is relevant for adjudicating the present issue, is reproduced hereinbelow:, Section 19. Power to arrest. (1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub‑section (1), forward a copy of the order along with the material in his possession, referred to in that sub‑section, to the Adjudicating Authority in a sealed envelope, in the manner as may be prescribed, and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every person arrested under sub‑section (1) shall, within twenty‑four hours, be taken to a Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty‑four hours shall exclude the time necessary for the journey from the place of arrest to the Court or Magistrate's Court., A perusal of the above Section shows that it contains three sub‑sections. Under Sub‑section (1), the concerned officer—who may be the Director, Deputy Director, Assistant Director or any other officer authorised by the Central Government—may arrest a person on the basis of material in his possession, provided he has reason to believe, recorded in writing, that the person is guilty of an offence punishable under the Act. Sub‑section (1) further provides that after arrest the person must be informed of the grounds of arrest \as soon as may be\. Sub‑section (2) provides that the officer who has arrested the person must, \immediately\, forward a copy of the order along with the material in his possession, on which his reason to believe is based, to the Adjudicating Authority in a sealed envelope as may be prescribed., Sub‑section (3) further provides that the person arrested shall, within 24 hours, be taken to the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction., The Hon'ble Supreme Court in V. Senthil Balaji (supra) observed that the provisions of Section 19 are mandatory and that compliance with the provisions is a solemn function of the arresting authority which brooks no exception. The officer concerned must strictly comply with the mandate of Section 19 in its letter and spirit, failing which he would face the consequences prescribed under the 2002 Act., It was further observed that the Hon'ble Special Court or the Hon'ble Judicial Magistrate before whom the arrested person is produced within the period of 24 hours, as prescribed under Section 19(3), has a distinct role to play and it is his bounden duty to ensure that Section 19 of the Prevention of Money Laundering Act, 2002 has been duly complied with; any failure would entitle the arrested person to be released., It was observed that the Hon'ble Special Court or the Hon'ble Judicial Magistrate shall peruse the order passed by the authority under Section 19(1) of the Prevention of Money Laundering Act, 2002, satisfy itself about compliance of the safeguards mandated under Section 19, and, after being so satisfied, the competent Special Court or Judicial Magistrate could consider the request for custody in favour of the respondent authority., In paragraph 95, the Hon'ble Supreme Court concluded that any non‑compliance of the mandate of Section 19 of the Prevention of Money Laundering Act, 2002 would benefit the person arrested. Paras 39, 42, 73, 74 and 95(ii) of the judgment are reproduced hereinbelow:, 39. To effect an arrest, an officer authorised must assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002. Thereafter, he may arrest, while performing his mandatory duty of recording the reasons. The exercise must be followed by serving the arrestee with information of the grounds of arrest. Any non‑compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the arrest itself., Under sub‑section (2), the authorised officer shall immediately, after arrest, forward a copy of the order as mandated under sub‑section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority in a sealed envelope. Compliance with sub‑section (2) is also a solemn function of the arresting authority which brooks no exception., 42. This provision reiterates the mandatory compliance of Section 19 of the PMLA, 2002. It serves as a warning to an officer to strictly comply with the mandate of Section 19 in letter and spirit, failing which he would face the prescribed consequences., 73. We have already touched upon the mandatory function that a Magistrate must undertake while dealing with a case of remand. He is expected to balance the interests. As a rule, the investigation is to be completed within 24 hours; therefore, the investigating agency must satisfy the Magistrate with adequate material on the need for its custody, be it police or otherwise. This factor must be kept in mind while passing the judicial order. We reiterate that Section 19 of the PMLA, 2002, supplemented by Section 167 of the Code of Criminal Procedure, 1973, provides adequate safeguards to an arrested person. If Section 167 of the Code of Criminal Procedure, 1973 is not applicable, then there is no role for the Magistrate to remand or otherwise., 74. Such a Magistrate has a distinct role when a remand is made of an accused person to an authority under the PMLA, 2002. It is his bounden duty to ensure that Section 19 of the PMLA, 2002 is duly complied with; any failure would entitle the arrestee to be released. The Magistrate shall also peruse the order passed by the authority under Section 19(1) of the PMLA, 2002. Section 167 of the Code of Criminal Procedure, 1973 is meant to give effect to Section 19 of the PMLA, 2002, and therefore the Magistrate must satisfy himself of its compliance. Upon such satisfaction, he can consider the request for custody in favour of an authority, as Section 62 of the PMLA, 2002 does not specify the authority to act for non‑compliance of Section 19. A remand made by the Magistrate, being an independent entity, may invoke the provision in a given case. In other words, the Magistrate concerned is the appropriate authority to be satisfied about compliance of the safeguards mandated under Section 19 of the PMLA, 2002.
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On the role required to be played by the Magistrate, qua remand, we do not wish to go any further as it has been dealt with by the Supreme Court of India in Satyajit Ballubhai Desai v. State of Gujarat, (2014) 14 9. Having considered and deliberated over the issue involved herein in the light of the legal position and existing facts of the case, we find substance in the plea raised on behalf of the appellants that the grant of order for police remand should be an exception and not a rule and for that the investigating agency is required to make out a strong case and must satisfy the learned Magistrate that without the police custody it would be impossible for the police authorities to undertake further investigation and only in that event police custody would be justified as the authorities specially at the magisterial level would do well to remind themselves that detention in police custody is generally disfavoured by law., The provisions of law lay down that such detention or police remand can be allowed only in special circumstances granted by a Magistrate for reasons judicially scrutinised and for such limited purposes only as the necessities of the case may require. The scheme of Section 167 of the Criminal Procedure Code, 1973 is unambiguous in this regard and is intended to protect the accused from the methods which may be adopted by some over‑zealous and unscrupulous police officers which at times may be at the instance of an interested party also. But it is also equally true that police custody, although not the be all and end all of the whole investigation, is one of its primary requisites particularly in the investigation of serious and heinous crimes. The legislature also noticed this and has therefore permitted limited police custody., Any non‑compliance of the mandate of Section 19 of the Prevention of Money Laundering Act, 2002 would enure to the benefit of the person arrested. For such non‑compliance, the Competent Court shall have the power to initiate action under Section 62 of the Prevention of Money Laundering Act, 2002., The Hon’ble Supreme Court of India in Pankaj Bansal’s case (supra) had further reiterated the fact that the Supreme Court of India, which is seized of the exercise under Section 167 of the Criminal Procedure Code of remanding the person arrested, has a duty to verify and ensure that the conditions in Section 19 of the 2002 Act are duly satisfied and, in the event, the Court fails to discharge its duty in right earnest and in proper perspective, the order of remand would have to fail on the said ground alone., In the said case, the Hon’ble Supreme Court of India had observed that the concerned Judge had not even recorded a finding that he had perused the grounds of arrest to ascertain whether the officer concerned had recorded the reasons to believe that the appellants therein were guilty of the offence under the 2002 Act and that there was proper compliance with the mandate of Section 19 of the 2002 Act and, after considering the said aspects and other relevant aspects, had allowed the appeal and set aside the order passed by the Division Bench of the High Court as well as the impugned arrest orders and the arrest memo along with the orders of remand and all other consequential orders and had released the appellant therein., Paras 16 to 19 of the said judgment are reproduced hereinbelow: 16. The Supreme Court of India had occasion to again consider the provisions of the Prevention of Money Laundering Act, 2002 in V. Senthil Balaji v. The State represented by Deputy Director and others, and more particularly, Section 19 thereof. It was noted that the authorized officer is at liberty to arrest the person concerned once he finds a reason to believe that he is guilty of an offence punishable under the Act, but he must also perform the mandatory duty of recording reasons. It was pointed out that this exercise has to be followed by the information of the grounds of his arrest being served on the arrestee. It was affirmed that it is the bounden duty of the authorized officer to record the reasons for his belief that a person is guilty and needs to be arrested and it was observed that this safeguard is meant to facilitate an element of fairness and accountability., Dealing with the interplay between Section 19 of the Act and Section 167 of the Criminal Procedure Code, this Court observed that the Magistrate is expected to do a balancing act as the investigation is to be completed within 24 hours as a matter of rule and, therefore, it is for the investigating agency to satisfy the Magistrate with adequate material on the need for custody of the accused. It was pointed out that this important factor is to be kept in mind by the Magistrate while passing the judicial order., This Court reiterated that Section 19 of the Act, supplemented by Section 167 of the Criminal Procedure Code, provides adequate safeguards to an arrested person as the Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the Act. It was held that the Magistrate is under a bounden duty to see to it that Section 19 of the Act is duly complied with and any failure would entitle the arrestee to get released., It was pointed out that Section 167 of the Criminal Procedure Code is meant to give effect to Section 19 of the Act and, therefore, it is for the Magistrate to satisfy himself of its due compliance by perusing the order passed by the authority under Section 19(1) of the Act and only upon such satisfaction, the Magistrate can consider the request for custody in favour of an authority. In other words, per this Court, the Magistrate is the appropriate authority who has to be satisfied about the compliance with safeguards as mandated under Section 19 of the Act. In conclusion, this Court summed up that any non‑compliance with the mandate of Section 19 of the Act would enure to the benefit of the person arrested and the Court would have power to initiate action under Section 62 of the Act for such non‑compliance., Significantly, in this, the grounds of arrest were furnished in writing to the arrested person by the authorized officer., In terms of Section 19(3) of the Act and the law laid down in the above decisions, Section 167 of the Criminal Procedure Code would necessarily have to be complied with once an arrest is made under Section 19 of the Act. The Court seized of the exercise under Section 167 of the Criminal Procedure Code of remanding the person arrested by the Enforcement Directorate under Section 19(1) of the Act has a duty to verify and ensure that the conditions in Section 19 are duly satisfied and that the arrest is valid and lawful. In the event the Court fails to discharge this duty in right earnest and with the proper perspective, as pointed out hereinbefore, the order of remand would have to fail on that ground and the same cannot, by any stretch of imagination, validate an unlawful arrest made under Section 19 of the Act., In the matter of Madhu Limaye and others, a three‑Judge Bench decision of this Court observed that it would be necessary for the State to establish that, at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters and if the arrest of the accused suffered on the ground of violation of Article 22(1) of the Constitution, the order of remand would not cure the constitutional infirmities attaching to such arrest., Viewed in this context, the remand order dated 15.06.2023 passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, reflects total failure on his part in discharging his duty as per the expected standard. The learned Judge did not even record a finding that he perused the grounds of arrest to ascertain whether the Enforcement Directorate had recorded reasons to believe that the appellants were guilty of an offence under the Act and that there was proper compliance with the mandate of Section 19 of the Act. He merely stated that, keeping in view the seriousness of the offences and the stage of the investigation, he was convinced that custodial interrogation of the accused persons was required in the present case and remanded them to the custody of the Enforcement Directorate. The sentence “It is further that all the necessary mandates of law have been complied with” follows “It is the case of the prosecution” and appears to be a continuation thereof, as indicated by the word “further”, and is not a recording by the learned Judge of his own satisfaction to that effect., It would be relevant to note that the Hon’ble Supreme Court of India in the case of Ram Kishor Arora (supra) had observed that since, in the judgment of Pankaj Bansal (supra), it had directed to furnish the grounds of arrest in writing as a matter of course, “henceforth” thus, it was observed that the said requirement of furnishing the grounds of arrest in writing to the arrested person would be mandatory/obligatory after the date of the said judgment and that non‑furnishing of the grounds of arrest in writing till the date of pronouncement of the judgment in the case of Pankaj Bansal could not be faulted upon. It would be relevant to note that the judgment in the case of Pankaj Bansal (supra) was pronounced on 03.10.2023 whereas both the petitioners, in the present case, have been arrested as per the case of the prosecution on 08.01.2024 and as per the case of the petitioners on 04.01.2024, which is after the date of pronouncement of the said judgment., In the case of Ram Kishor Arora (supra), the Hon’ble Supreme Court of India further observed that the term “as soon as may be” appearing in Section 19(1) would mean reasonably convenient or reasonably requisite time to inform the arrestee about the grounds of arrest, which would be within 24 hours of his arrest. In the said case, the sole ground of challenge as noticed in para 3 and para 24 of the judgment was that the appellant therein had not been furnished the copy of the grounds of arrest at the time of his arrest and since in that case the arrest of the said person was on 27.06.2023 which was prior to the date of pronouncement of the judgment in the case of Pankaj Bansal i.e. 03.10.2023, no relief was granted to the appellant therein., It was observed that after 03.10.2023, if a person is arrested and is informed or made aware orally about the grounds of arrest at the time of his arrest and is furnished written communication about the grounds of arrest within a period of 24 hours of his arrest, then that would be sufficient, instead of his having to be given written grounds of arrest immediately at the time of arrest., Further, in the aforesaid case of Ram Kishor Arora (supra), the judgment of the Hon’ble Supreme Court of India in the case of Vijay Madanlal Choudhary (supra) was reiterated. In the said judgment of Vijay Madanlal Choudhary (supra), the Hon’ble Supreme Court while upholding the constitutional validity of certain provisions of the 2002 Act had observed that Section 19 provides for in‑built safeguards to be adhered to by the authorized officers which included recording reasons for the belief that the person to be arrested is guilty of an offence punishable under the Act and the same had to be recorded in writing and the grounds of such arrest are to be informed to the accused person and the officer concerned who has arrested the person has to forward the copy of the order along with the material in his possession in a sealed cover to the Adjudicating Authority., Section 19 of the 2002 Act postulates the manner in which arrest of a person involved in money‑laundering can be effected. Sub‑section (1) of Section 19 envisages that the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government, if he has material in his possession giving rise to reason to believe that any person has been guilty of an offence punishable under the 2002 Act, may arrest such person. Besides the power being invested in high‑ranking officials, Section 19 provides for in‑built safeguards to be adhered to by the authorised officers, such as recording reasons for the belief regarding the involvement of the person in the offence of money‑laundering. That has to be recorded in writing and while effecting arrest of the person, the grounds for such arrest are informed to that person. Further, the authorised officer has to forward a copy of the order, along with the material in his possession, in a sealed cover to the Adjudicating Authority, who in turn is obliged to preserve the same for the prescribed period as per the Rules. This safeguard is to ensure fairness, objectivity and accountability of the authorised officer in forming opinion as recorded in writing regarding the necessity to arrest the person being involved in offence of money‑laundering. Not only that, it is also the obligation of the authorised officer to produce the person so arrested before the Special Court, a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, within twenty‑four hours. This production is also to comply with the requirement of Section 167 of the 1973 Code. There is nothing in Section 19 which is contrary to the requirement of production under Section 167 of the 1973 Code, but being an express statutory requirement under the 2002 Act in terms of Section 19(3), it has to be complied by the authorised officer., In para 325, further reference was made to the fact that the Central Government by virtue of Section 73 of the 2002 Act had framed the 2005 Rules (I) which deal with the forms and manner of forwarding the copy of order of arrest of a person along with the material to the Adjudicating Authority., The law laid down in the aforesaid judgments clearly shows that it is incumbent upon the Special Court or concerned Court at the time of remanding the accused to the custody of the Enforcement Directorate, to peruse the order of arrest and to see due compliance of provisions of Section 19 of the 2002 Act and also reflect the same in the order of remand by making a specific observation regarding the same., This Court would now consider as to whether the Special Court, in the present case, has passed the order of remand in accordance with law and in accordance with the provisions of Section 19 and law laid down in the aforesaid judgments., Relevant portion of order dated 09.01.2024 passed in the case of the petitioner Dilbag Singh @ Dilbag Sandhu is reproduced hereinbelow: 18. I have given my due consideration to the facts and circumstances of the case and the above mentioned arguments. The remand papers and other relevant documents have also been perused carefully. 19. A perusal of record shows that in the present case there is no denial of the fact that for the commission of scheduled offence, nine FIRs have been lodged in two Police Stations of District Yamuna Nagar, i.e. two FIRs in Police Station Bilaspur and seven FIRs in Police Station Pratap Nagar. It has been alleged by the applicants, Directorate of Enforcement, that during the course of investigation of the above mentioned FIRs, it was found that ultimate beneficiary of cheating/fraud was the accused who had dealt with proceeds of crime. In such circumstances, in my considered opinion, at this prima facie stage when investigation is still at infant stage, the arguments of learned counsel for the accused that a false story has been cooked up by the Directorate of Enforcement with regard to commission of offence under the Prevention of Money Laundering Act, 2002, and the accused has no nexus whatsoever with the same, cannot be tenable. Such a conclusion can be drawn at the time of conclusion of trial only., 20. It has been alleged by the Directorate of Enforcement that during search of the premises of the accused various ES Rawana bills and cheque books of many firms, which were part of syndicate, were traced and that the above mentioned recoveries further augment the claim of the Directorate of Enforcement with regard to involvement of accused in the commission of offence. 21. Here this fact cannot be ignored that there are very specific and categorical allegations of the Directorate of Enforcement that during the course of investigation when the statement of the accused was recorded, his attitude was non‑cooperative, and that for majority of questions he has given either misleading replies or his replies were evasive., 22. Since the allegations against the accused are very serious and the Directorate of Enforcement is seeking to decode the money trail, role of the accused, viz. his persons/aids, who facilitated the offence of money laundering, so as to get to know how the accused persons were successful in generating proceeds of crime, in my opinion, a valid ground exists for the Directorate of Enforcement for custodial interrogation of the accused. In my considered opinion, once an Enforcement Case Information Report has been registered and during investigation, a prima facie case for the commission of offence under the Prevention of Money Laundering Act, 2002 has been found, the Directorate of Enforcement is duty bound to trace the money, reveal the modus operandi adopted by the accused for generating proceeds of crime and its circulation from one source to another. In my considered opinion the above mentioned goal can be achieved only when the opportunity is given to the Directorate of Enforcement to interrogate the accused in custody., 23. As a sequel to the above mentioned discussion, in my considered opinion the Directorate of Enforcement has a good and sufficient reason to claim the custody of the accused person for his interrogation. However, in my opinion in view of the facts and circumstances of the instant case and other mitigating circumstances, it shall be just and proper that the accused is remanded into custody of the Directorate of Enforcement for a period of seven (7) days., 24. In view of the above mentioned observations, the application in hand is hereby partly accepted and the accused is remanded into Enforcement Directorate custody for a period of seven (7) days. The accused be produced in the court on 16.01.2024. It is further directed that the Investigating Officer of the case shall get the accused examined medically before proceeding for custodial interrogation and his custody shall not be transferred to any other agency without prior order of the competent authority., 25. At this stage, an application has been moved by the learned counsel for the accused seeking permission to interact with the accused during the remand period. In addition to the above the learned counsel for the accused has also requested to provide facility of medicines and other facilities as advised by the Medical Officer., 26. In view of the above mentioned application, it is hereby ordered that the Investigating Officer shall allow the accused to meet his counsel on each and every date, during custody period, for one hour daily, i.e. from 09:00 a.m. to 10:00 a.m. It is further directed that all the facilities as prescribed/advised by the Medical Officer, including medicines and equipment shall be provided by the Directorate of Enforcement., 27. The papers be put up on 16.01.2024. To the similar effect is the order dated 09.01.2024 passed in the case of petitioner Kulwinder Singh. A perusal of the above and the whole order would show that not even a passing reference, much less a finding, has been made on the aspect that the Court had satisfied itself that the officer concerned immediately after the arrest of the accused persons had forwarded the copy of the order along with the material in his possession to the Adjudicating Authority in a sealed envelope in the manner as has been prescribed. Thus, compliance of Section 19(2) has not been noticed and it has not even been remotely observed that the said mandatory provision has been complied with by the concerned officer of the Enforcement Directorate., It would be relevant to note that as per the additional reply dated 29.01.2024 filed on behalf of respondent No.2 (para (E)(3)(d)) in the case of petitioner Dilbag Singh @ Dilbag Sandhu, it is the admitted case of the respondent authorities that on the date of passing of the order dated 09.01.2024, the compliance of the provision of Section 19(2) had not been fulfilled by the respondent authorities. The detailed discussion regarding the same would be done in the subsequent paragraphs while dealing with the other issues in the present case., Similarly, even with respect to the provisions of Section 19(3), the fact that the petitioner had been produced before the Court having jurisdiction and that the Court concerned was having jurisdiction in the matter has not been recorded. It would be relevant to note that in the impugned order, it has been recorded that the person arrested is a resident of Yamuna Nagar and the eight FIRs which are stated to be with respect to the scheduled offences were registered in District Yamuna Nagar. No reference with respect to any averments in the application or any material so as to show that the offence of money laundering had been committed within the jurisdiction of the Court at Gurugram, has even been remotely made in the order., In Section 19(3), the word having jurisdiction has been used in contradistinction to Section 167(2) of the Criminal Procedure Code where it has been stated that the Magistrate to whom the accused person is to be forwarded may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused. This Court is aware of the fact that the final question as to whether the Court at Gurugram would have the jurisdiction to try the case or not would be dependent upon the entire material which would be produced by the Enforcement Directorate and even if a part of the proceeds of crime is recovered from the place within the jurisdiction of the Court at Gurugram, then the plea of the prosecution to the effect that the Court at Gurugram would have the jurisdiction would in all likelihood be accepted., The issue which the Court is considering presently is not as to whether the Court at Gurugram would have the jurisdiction to try the offence but is as to the aspect of the application of mind of the Special Court with respect to compliance of provisions of Section 19 including that of Section 19(3). Since the petitioners were produced before the Special Court at Gurugram on 09.01.2024, thus, it was incumbent upon the said Court to consider the material to see as to whether as on 09.01.2024, any cause had arisen so as to produce the petitioners before the said Court and in case any such cause had arisen then to specifically state so in the order of remand. In the instant case, the same has not been done by the Court concerned., Importantly, the Special Court has also not made any observations with respect to the due compliance by the authority of Section 19(1). There is no reference in the order of remand to state that the Court had perused the order, if any, recording the reason to believe that the petitioners are guilty of the offence punishable under the 2002 Act or the grounds of arrest in writing and had satisfied itself that the arresting officer, on the basis of material in his possession, had reason to believe that the petitioners were guilty of the offence punishable under the Act. No such fact has been recorded in the impugned order. On the said aspect, it has only been observed in the impugned order that once an Enforcement Case Information Report has been registered and during investigation, a prima facie case for the commission of the offence under the 2002 Act has been found, then the Directorate of Enforcement is bound to trace the money for which it required to interrogate the petitioners in custody. The said order is thus, illegal and deserves to be set aside on the said ground alone., Even in the subsequent order of remand dated 16.01.2024, which was a common order passed in the case of both the petitioners, no reference has been made with respect to the compliance of provisions of Section 19(1) and 19(2). With respect to compliance of Section 19(3), the following findings have been given: 13. Since investigation in the instant case is at infant stage and facts are yet to crystallize, in my opinion, at this stage it cannot be ascertained as to whether any part of offence has been committed by the accused within the territorial jurisdiction of this Special Court or not. In my opinion such question can be determined only at the time of taking cognizance on the complaint, if filed by the Directorate of Enforcement., A perusal of the above would show that it has been observed that it cannot be ascertained as to whether any part of the offence has been committed by the accused within the territorial jurisdiction of the said Court or not. Even the order dated 23.01.2024 annexed as Annexure R-11 along with the reply filed in the case of petitioner Kulwinder Singh, whereby both the petitioners have been remanded to judicial custody till 06.02.2024 would also show that the Additional Sessions Judge, Gurugram has not made even a remote reference with respect to the compliance of the provisions of Sections 19(1), 19(2) or 19(3). It is thus apparent that the Court while passing the remand orders has neither applied its mind to the compliance of the provisions of Section 19, nor recorded the same in the remand orders., The argument on behalf of counsel for the respondents to the effect that the order passed is speaking and has been passed after taking into consideration the entire material which included the remand papers and other relevant documents which had been produced, is liable to be rejected. From a perusal of the provisions of law and the judgments referred to in the preceding paragraphs, it is clear that it was the requirement of the Court to have specifically recorded in the order the fact that the provisions of Sections 19(1), 19(2) and 19(3) have been duly complied with and that the Court had perused the written reasons to believe, as mandated under Section 19(1) of the 2002 Act and was satisfied that it had been so recorded therein that the petitioners were guilty of the offence punishable under the Act and that the said order along with the material had been forwarded to the Adjudicating Authority and also that a part of the cause of action had arisen within the territorial jurisdiction of the Special Court at Gurugram and the same having not been done in the present case calls for setting aside the impugned orders/action of the respondent authorities on the said ground alone., It is the case of both the petitioners that the petitioners along with their family members were illegally detained by the respondents on 04.01.2024 itself at the time when search and seizure of the houses had started and were illegally detained from 04.01.2024 to 08.01.2024 and were illegally shown to have been arrested only on 08.01.2024. Reference has been made to the panchnama in the case of both the petitioners. Relevant portion of the panchnama of petitioner Kulwinder Singh is reproduced hereinbelow: Everyone present at the premises was allowed proper rest, food breaks and washroom breaks.
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A perusal of the panchnama statements supports the petitioners' case that they were not permitted to leave the house during the time of the search, were detained, and their movement was controlled by the authorities. It was the authorities who allowed them rest, food breaks and washroom breaks. The panchnama of petitioner Dilbag Singh (also known as Dilbag Sandhu) mentions that petitioner Rajinder Singh and their family members were given proper rest and food during the course of the search. A reply dated 22 January 2024 on behalf of respondent No.2 was filed in the case of petitioner Dilbag Singh. Paragraphs 29(h) and 35 of that reply are reproduced below., Paragraph 29(h) states that the petitioner was not detained from 04 January 2024 and was free in his residence until his arrest on 08 January 2024 on a prima facie case of commission of money laundering against him. The panchnama also endorses that Dilbag Singh, Rajinder Singh and their family members had proper rest and food during the search. Paragraph 35 expressly denies the content of Ground C as wrong and vexatious, submitting that no restrictions were imposed upon the petitioner until his arrest on 08 January 2024. The petitioner and other persons were free to loiter within their own premises during the duration of the search, which cannot be termed as detention. Section 17 of the Prevention of Money Laundering Act, which deals with search and seizure, mandates certain requirements that were duly complied with. In exercise of powers under Section 73 of the Prevention of Money Laundering Act, the Central Government framed \The Prevention of Money Laundering (Forms, Search and Seizure or Freezing and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the Period of Retention Rules 2005)\, which were also scrupulously followed by respondent No.2., A similar reply was filed in the case of petitioner Kulwinder Singh. Paragraph 36 of that reply repeats the denial of Ground C, stating that no restrictions were imposed upon the petitioner until his arrest on 08 January 2024. The petitioner and other persons were free to loiter within their own premises during the search, which cannot be termed as detention. Section 17 of the Prevention of Money Laundering Act again mandates the required procedures, which were complied with. The Central Government's 2005 Rules were followed, and the petitioner and other persons present at the premises were in possession or control of the locker, safe, almirah and documents, making it necessary to secure their presence to inspect the contents and avoid tampering with potential proceeds of crime., The respondents contend that the petitioners were free to move in their residence and could loiter within (the word \with\ was mistakenly used and should be read as \within\). The panchnama shows that the search was conducted only on 04 January 2024; no search of any box, locker, safe or almirah was carried out on 05, 06, 07 or 08 January 2024. Therefore, even if the respondents' argument were accepted, it cannot be said that the petitioners were legally detained for the entire period from 04 to 08 January 2024., An additional reply dated 29 January 2024 was filed on behalf of respondent No.2. Paragraph F of that reply states that no person, including the petitioner, was detained during the search proceedings and that they had proper rest and food. By virtue of Rule 3(7) and (8) of the 2005 Rules, the petitioner and other persons present at the premises were in possession or control of the locker, safe, almirah and documents, and it was important to secure their presence to inspect the contents and avoid tampering. They were allowed to follow their daily routine and were not detained or compelled to remain on the premises., Rule 3 of the 2005 Rules deals with the procedure relating to search. Sub‑Rule (7) provides that the authority may require any person who is the owner or has immediate possession or control of any box, locker, safe or almirah situated in the building, place, vessel, vehicle or aircraft to open it and allow access to inspect its contents, and if the keys are not available or the person fails to comply, the authority may break open the lock. Sub‑Rule (8) provides that the occupant of the building, place, vessel, vehicle or aircraft searched, including the person in charge, shall be permitted to attend during the search., The issue of whether the detention of the petitioners for the purpose of the search was valid, and whether they could have been restrained for more than four days, must be considered in light of Sub‑Rules 7 and 8 and the applicable law. Sub‑Rule 8 confers a right to attend the search, not a duty to remain on the premises. The occupant cannot be forced to stay confined for days. Sub‑Rule 7 merely empowers the authority to break open a lock if the keys are unavailable or the person fails to comply; it does not impede the occupants from carrying out their daily routine, including going to work, while the search is ongoing., The panchnama of both petitioners shows that the search of cupboards, almirahs and drawers was carried out only on 04 January 2024, starting at 08:25 hours and continuing until 13:00 hours on 08 January 2024, with the actual search of documents beginning at 08:40 hours on 04 January 2024. No reference is made to any search of lockers, safes or almirahs from 05 to 08 January 2024. In the case of petitioner Kulwinder Singh, the search began at 11:50 hours on 04 January 2024; a locksmith was called to break open a locked room at 12:30 hours and a Godrej safe at 14:20 hours. No further searches of lockers, safes or almirahs are mentioned for the subsequent days., Section 18 of the Prevention of Money Laundering Act, 2002 provides that if the authorities have reason to believe that a person possesses any record or proceeds of crime, the person may be searched and the property seized. The searched person must be taken within 24 hours to the nearest gazetted officer or magistrate. Sub‑Section 4 prohibits detention for more than 24 hours before such presentation, and Sub‑Section 5 requires the officer or magistrate to discharge the person if no reasonable ground for search is found. The respondents admit that they did not invoke Section 18, and therefore detaining or restraining the petitioners for more than four days amounts to illegal detention. The petitioners are deemed to have been arrested on 04 January 2024., The additional reply dated 29 January 2024 asserts that the petitioners stayed in the premises of their own will, contradicting the earlier reply dated 22 January 2024 which stated that the petitioner and other persons were free to loiter within their own premises. Learned Senior Counsel for the petitioners objected to this new plea, noting that it was not raised in the earlier written statement and was introduced after the petitioners had opened their arguments. The court finds that the respondents' after‑thought plea lacks merit and should be rejected., The Division Bench of the Delhi High Court, in the case of Pranav Gupta, considered whether a restraint placed on the petitioners amounted to an actual arrest. The bench held that arrest is reckoned from the date of unlawful restraint, not from the date of formal arrest memo. The argument that the accused were merely taken in a vehicle pursuant to a summons was rejected because the vehicle belonged to the Enforcement Directorate and the accompaniment was not voluntary. Consequently, the arrest was declared non‑existent and void., In Ashak Hussain Allah Detha v. Siddiqui, the court observed that arrest is a restraint on a person's personal liberty by the colour of lawful authority. It occurs when an authority physically restrains a person or uses words to prevent movement, irrespective of the label placed on the act. The time of arrest is the moment restraint is imposed, not the time recorded by the arresting officer., The Andhra Pradesh High Court, in the case of Mrs. Iqbal Kaur Kwatra, held that police custody does not necessarily mean post‑arrest custody; it includes any form of police surveillance and restriction on movement. A person is in custody as soon as he comes into the hands of a police officer, and detention without producing the person before a magistrate within 24 hours violates Section 340 of the Indian Penal Code., From the foregoing facts and the law laid down in the cited judgments, it is apparent that the respondent authorities illegally confined the petitioners in the premises from 04 January 2024 to 08 January 2024, thereby effecting an arrest on 04 January 2024 without producing them before the concerned court within 24 hours, and without complying with the conditions of Sections 19(1), 19(2) and 19(3) of the Prevention of Money Laundering Act, 2002. Consequently, the arrest and all subsequent orders, including remand orders, are illegal, contrary to law and must be set aside., The judgment of the Single Bench of the Delhi High Court in Gautam Thapar, relied upon by the respondents, does not apply to the present facts because that case did not involve unlawful restraint for more than four days. Similarly, the facts in Sundeep Kumar Bafna are completely different, and the definitions of custody, detention and arrest quoted therein are fully applicable to the present case.
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Moreover, the said case does not in any way further the case of the respondent authorities. Thus, the order of arrest and the impugned orders of remand and all the subsequent proceedings arising thereto deserve to be set aside on this ground also., Section 19(1), 19(2) and 19(3) of the Prevention of Money Laundering Act, 2002, which have been reproduced hereinabove, impose mandatory conditions to be fulfilled both before and immediately after effecting an arrest. The Director or competent officer may arrest a person only after, on the basis of material in his possession, he has reason to believe, recorded in writing, that the person sought to be arrested is guilty of an offence punishable under the Act. After the person has been arrested, he must be informed of the grounds of arrest as soon as may be, which the Supreme Court has interpreted to mean up to 24 hours from the time of arrest. The officer must forward a copy of the order along with the material in his possession to the Adjudicating Authority in a sealed envelope immediately after the arrest. The arrested person must be taken to the Special Court, Judicial Magistrate or Metropolitan Magistrate having jurisdiction within 24 hours., The Supreme Court in V. Senthil Balaji held that compliance with Section 19(2) is a solemn function of the arresting authority and admits no exception. The Court further stated that the Magistrate must satisfy himself of compliance with the safeguards mandated under Section 19 of the 2002 Act. In Pankaj Bansal, the Court observed that while remanding an accused person the Court must ensure that the conditions in Section 19 are duly satisfied and that there is proper compliance with the mandate of Section 19. Explanation to Section 45 of the 2002 Act confirms that officers authorised under the Act may arrest without warrant only subject to fulfilment of the conditions under Section 19 in addition to those under Section 45., It is the admitted position of respondent No.2 that up to 09 January 2024, when both petitioners were produced before the Special Court and their remand was sought and granted, there was no compliance with Section 19(2) and that compliance was effected only subsequently. The question that arises is the construction to be placed on the word “immediately” used in Section 19(2) and whether it indicates a higher degree of urgency than the term “as soon as may be”. The Supreme Court in Ram Kishor Arora interpreted “as soon as may be” in Section 19(1) to mean 24 hours from the time of arrest and observed that a duty is cast upon the officer to forward the copy of the order along with the material to the Adjudicating Authority immediately after the arrest., In paragraph 21 of the judgment in Ram Kishor Arora, the Court held that the expression “as soon as may be” in Section 19 of the Prevention of Money Laundering Act should be construed as “as early as possible without avoidable delay”, or “within a reasonably convenient or requisite period of time”. Since a safeguard requires the officer to forward the order and material immediately after arrest and to take the arrested person to the concerned court within 24 hours, the Court considered a reasonable period to inform the arrestee of the grounds of arrest to be twenty‑four hours., Paragraph 311 of Vijay Madanlal Chaudhary considered the provisions of Section 5(2) and 17(2) of the 2002 Act, which require the competent officer, after attachment under Section 5(1) or search and seizure under Section 17(1), to forward a copy of the order along with the material in his possession to the Adjudicating Authority contemporaneously, i.e., at the same time. The Court observed that the reasons to believe must be recorded in writing and forwarded contemporaneously in a sealed envelope, and that these safeguards are built into the 2002 Act., The word “contemporaneous” is defined in the New International Webster’s Comprehensive Dictionary of the English Language as “living or occurring at the same time”., From the provisions of Section 19 and the Supreme Court judgments, it is clear that the legislature deliberately used the expression “immediately” in Section 19(2) and “as soon as may be” in Section 19(1) because the order and material are already in the officer’s possession before arrest. The material must be sent immediately, prior to producing the arrested person before the Special Court, Judicial Magistrate or Metropolitan Magistrate. The Court must verify compliance with Section 19, including Section 19(2), before passing a remand order. Failure to forward the material before the first appearance of the accused defeats the Court’s ability to verify compliance., If respondent No.2 were permitted to render compliance with Section 19(2) after a delay beyond the first appearance of the accused, it would be impossible to confirm that the reasons to believe were recorded in writing prior to arrest. Non‑compliance prior to the first appearance would mean the next opportunity for verification would be the subsequent appearance, which could be up to seven days later. The argument that Section 19(2) is not mandatory and that any delay does not invalidate the arrest or remand is rejected. The law, as interpreted in Vijay Madanlal Chaudhary, V. Senthil Balaji and Pankaj Bansal, makes compliance with Section 19, including Section 19(2), mandatory, and non‑compliance renders the arrest and remand order illegal., In the present case, compliance with Section 19(2) was not done until 09 January 2024. The remand orders dated 09 January 2024 for both petitioners do not show any observation by the Special Court regarding compliance. The order dated 16 January 2024 extending the remand also fails to mention compliance with Section 19(2), as does the order dated 23 January 2024 annexed as Annexure R‑11., Respondent No.2, in its additional reply dated 29 January 2024 in the case of Dilbag Singh, provided a timeline of events. The Directorate initiated search operations at 23 locations in Yamuna Nagar, Karnal, Mohali, Sonepat and Faridabad on 04 January 2024, deploying around 110 Enforcement Directorate officers and approximately 100 Central Reserve Police Force personnel. The search resulted in seizure of cash worth 5.29 crore rupees, gold bullion valued at 1.89 crore rupees, two vehicles, various electronic devices and documents. The operation concluded at about 03:00 pm on 08 January 2024, after the arrest of the petitioner and co‑accused Kulwinder Singh., The petitioner was arrested on 08 January 2024 at 12:15 pm and the co‑accused at 02:20 pm. Both were taken to the Enforcement Directorate office at #22, The Green, Rajokri, New Delhi, and then to a civil hospital in Gurugram for medical examination, which was completed at 11:45 pm on the same day., The remand application was prepared that night and on 09 January 2024 at 10:00 am both accused were produced before the Special Court (PMLA), Gurugram seeking remand. The matter was taken up at 10:30 am; the Court adjourned to 2:00 pm to peruse the material. At 2:00 pm the Directorate produced the case file along with the Reason to Believe before the Judge, who deferred the matter to 4:00 pm for the other side to present arguments. After hearing, the Special Judge pronounced the order at about 5:30 pm, and a copy was received at 7:30 pm on 09 January 2024., On 10 January 2024, the Directorate preliminarily scrutinised all seized material, prepared the application and other prescribed documents, and dispatched letters intimating the search and arrest along with requisite documents to the Adjudicating Authority. However, the officer reached the Adjudicating Authority in New Delhi at 5:30 pm and the dispatcher had left, so the material was received only on 11 January 2024., The reply shows that respondent No.2 admits that until 09 January 2024 no compliance with Section 19(2) was made, despite the involvement of 110 Enforcement Directorate officers and 100 Central Reserve Police Force personnel. The argument that preparation of grounds of arrest requires mental effort and that 24 hours should be granted for it, while forwarding seized material is a ministerial act that should be done immediately, is rejected. The preliminary scrutiny of seized material was done after 09 January 2024, i.e., after the arrest and remand, contrary to the requirement that it be done before the accused is produced before the Court., Reliance on the Delhi High Court judgment in Neeraj Singal is misplaced. In that case, the arrest occurred on 19 June 2023, and the Adjudicating Authority’s office was closed on the weekend, so the copy of the arrest order was forwarded on 12 June 2023. The Court applied Section 10 of the General Clauses Act, 1897, which treats the delay caused by a holiday as not a breach. In the present case, there was no holiday on 08 or 09 January 2024, so the provision of Section 19(2) could not be satisfied by invoking the General Clauses Act., The judgments of the Supreme Court in Sheo Shankar Singh and State of Rajasthan v. Daud Khan dealt with Section 157 of the Code of Criminal Procedure in FIR registration under the Indian Penal Code, not with the special provisions of the 2002 Act. Section 157 CrPC does not become applicable after arrest, whereas Section 19(2) of the 2002 Act is mandatory after arrest., The 2002 Act is a special law and its bail provisions under Section 45 are more stringent than those under the IPC. Accordingly, compliance with Section 19, which enables the competent officer to arrest, must meet a higher standard. The Supreme Court in Youth Bar Association v. Union of India directed that, except for sensitive offences, the FIR copy must be uploaded on the website within 24 hours. The cumulative authority of Vijay Madanlal Chaudhary, V. Senthil Balaji and Pankaj Bansal makes it clear that compliance with Section 19, including Section 19(2), is mandatory and admits no exception., Therefore, there is a violation of the provisions of Section 19(2) of the 2002 Act, rendering the impugned action bad in law and liable to be set aside., Section 19(1) provides that the competent officer may arrest a person after he has reason to believe, on the basis of material in his possession recorded in writing, that the person is guilty of an offence punishable under the Act, and must inform him of the grounds of arrest as soon as may be, which the Supreme Court has held to mean within 24 hours. The grounds of arrest must be supplied in writing, and mere non‑cooperation of the person does not suffice to justify arrest. The officer must also respect the constitutional right against self‑incrimination under Article 20(3) of the Constitution., Paragraphs 27, 28, 32 and 33 of the judgment state that the second ECIR recorded on 13 June 2023 required the Enforcement Directorate to form a clear opinion about the appellant’s involvement before arresting within 24 hours, which is a sine qua non of Section 19(1). Authorities must act within the four corners of the statute, as emphasized in Devinder Singh v. State of Punjab.
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We may also note that the failure of the appellants to respond to the questions put to them by the Enforcement Directorate would not be sufficient in itself for the Investigating Officer to opine that they were liable to be arrested under Section 19, as that provision specifically requires him to find reason to believe that they were guilty of an offence under the Prevention of Money Laundering Act, 2002. Mere noncooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/her liable to be arrested under Section 19. As per its replies, it is the claim of the Enforcement Directorate that Pankaj Bansal was evasive in providing relevant information. It was however not brought out as to why Pankaj Bansal's replies were categorized as evasive and that record is not placed before us for verification. In any event, it is not open to the Enforcement Directorate to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an evasive reply. In Santosh S/o Dwarkadas Fafat vs. State of Maharashtra, the Supreme Court of India noted that custodial interrogation is not for the purpose of \confession\ as the right against self‑incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not cooperating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them., In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 of the Prevention of Money Laundering Act, 2002 enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions set out in the provision are that, firstly, the Court must be satisfied, after giving an opportunity to the public prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him/her under Section 19 and the basis for the officer's reason to believe that he/she is guilty of an offence punishable under the Prevention of Money Laundering Act, 2002. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the Prevention of Money Laundering Act, 2002, is meant to serve this higher purpose and must be given due importance., We may also note that the language of Section 19 of the Prevention of Money Laundering Act, 2002 puts it beyond doubt that the authorized officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the Act. Section 19(2) requires the authorized officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19(1), to the Adjudicating Authority in a sealed envelope. Though it is not necessary for the arrested person to be supplied with all the material that is forwarded to the Adjudicating Authority under Section 19(2), he/she has a constitutional and statutory right to be informed of the grounds of arrest, which are compulsorily recorded in writing by the authorized officer in keeping with the mandate of Section 19(1). As already noted hereinbefore, it seems that the mode of informing this to the persons arrested is left to the option of the Enforcement Directorate's authorized officers in different parts of the country, i.e., to either furnish such grounds of arrest in writing or to allow such grounds to be read by the arrested person or be read over and explained to such person., The Honorable Supreme Court of India in Pebam Ningol Mikoi Devi while examining the provisions of the National Security Act, 1980 and Article 22 of the Constitution observed that even when the detention of a person is based on subjective satisfaction of the authority concerned, then also in support of the said subjective satisfaction, reference should be made to some pertinent material. In the said judgment, reliance was placed upon the judgment of the Supreme Court of India in State of Rajasthan vs. Talib Khan reported as (1996) 11 SCC 393 which required the communication of the grounds of detention to the detenue together with documents in support of the subjective satisfaction reached by the detaining authority. It was further observed that individual liberty is a cherished right and is one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country. Paragraphs 3, 16, 22, 23, 24 and 25 of the said judgment are reproduced hereinbelow:, Individual liberty is a cherished right, one of the most valuable Fundamental Rights guaranteed by the Constitution to the citizens of this Country. On \liberty\, William Shakespeare, the great playwright, has observed that \a man is master of his liberty\. Benjamin Franklin goes even further and says that \any society that would give up a little liberty to gain a little security will deserve neither and lose both\. The importance of protecting liberty and freedom is explained by the famous lawyer Clarence Darrow as \you can protect your liberties in this world only by protecting the other man's freedom; you can be free only if I am free.\ In India, the utmost importance is given to life and personal liberty of an individual, since we believe personal liberty is the paramount essential to human dignity and human happiness., The High Court has responded to each of these, by holding that the allegations projected in the grounds of detention have been corroborated in material particulars. Further, the allegations were not vague or ambiguous, and the material was sufficient for the detaining Authority to arrive at the subjective satisfaction that the detenue was acting in a manner prejudicial to the maintenance of the public order. The High Court has also pointed out that the statement incriminating him under Section 161 was prepared by a public servant, and there is a presumption of regularity, which the appellant has a burden to disprove in order to prove them false and fabricated, which was not done in this case. It highlighted that the exercise of discretionary power involved objective and subjective elements, and the subjective elements if derived from objective elements cannot be questioned on grounds of adequacy of subjective satisfaction by a judicial review., Some of the decisions of the Supreme Court of India may be of relevance in determining in what manner such subjective satisfaction of the Authority must be arrived at, in particular on Section 3(2) of the National Security Act. In Fazal Ghosi v. State of Uttar Pradesh, this Court observed that: (SCC p.505, para 3) The District Magistrate, it is true, has stated that the detention of the detenue was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all., In Shafiq Ahmed v. District Magistrate, Meerut, this Court opined: \Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, be subject to closest scrutiny and examination by the courts.\ This Court further added: (Shafiq Ahmad case, SCC p.561, para 5) \There must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the petitioner which are prejudicial to the maintenance of public order. Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct \\\it is necessary\\\ to make an order \\\detaining\\\ such person, are subject to judicial review.\, In State of Punjab v. Sukhpal Singh, this Court held: (SCC p.43, para 9) \The grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in.\, In State of Rajasthan v. Talib Khan, this Court observed that: (SCC p.398, para 8) \What is material and mandatory is the communication of the grounds of detention to the detenue together with documents in support of subjective satisfaction reached by the detaining authority.\, In the present case it is the admitted case of the parties that both the petitioners are not accused till date in the FIRs which have been reproduced in the grounds of arrest of both the petitioners. It is further the admitted case of the parties that no notice under Section 50 which empowers the competent authority to summon any person and also to produce the documents as required, has been issued to either of the two petitioners. From the discussion made hereinabove, it is also clear that the petitioners were in the premises where the search was being conducted from 04.01.2024 to 08.01.2024. A perusal of the grounds of arrest of both the petitioners would show that although it has been stated by the competent officer that the petitioners have adopted an attitude of non‑cooperation by evading the queries and by giving misleading answers, no specific instance regarding the same has been mentioned. General observations have been made on the said aspect. Paragraphs (3)(a) to (3)(d) of the additional reply dated 29.01.2024 filed in the case of Dilbag Singh have been reproduced in the earlier part of the judgment and a perusal of the same would show that in paragraph 3(a) it had been stated that the preliminary scrutiny of documents was required to be done and it had further been stated that the search operation had continued till 03:20 PM on 08.01.2024 and both the petitioners were arrested prior to the conclusion of the search, inasmuch as the petitioner Dilbag Singh was arrested at 12:15 PM and Kulwinder Singh was arrested at 02:15 PM on 08.01.2024. Importantly, in clause (d) it was stated that on 10.01.2024 the preliminary scrutiny of all the seized material was done. By filing the said additional reply dated 29.01.2024, respondent No.2 has tried to show the sequence of events in order to explain the delay in compliance of Section 19(2) but a closer perusal of the said paragraph would show that if the preliminary scrutiny of documents had been done on 10.01.2024, subsequent to 08.01.2024 when the petitioners were arrested, then the question of the arresting officer having formed the reason to believe, in writing, that the petitioners were guilty of an offence under the 2002 Act on the basis of the material in his possession becomes highly doubtful. Moreover, no reference has been made in the sequence of events as to when the reasons to believe as required under Section 19(1) of the 2002 Act were reduced into writing., It would be further relevant to note that even a perusal of the remand application dated 09.01.2024 in the case of Dilbag Singh as well as in the case of Kulwinder Singh does not even remotely record the fact that the arresting officer had recorded the reasons of his belief in writing. In paragraph 18 of the application for remand in the case of Dilbag Singh, it has been observed that the petitioner was prima facie guilty for commission of the offence of money laundering on the basis of investigation carried out and there was no recording of the fact in the said application that the arresting officer had reason to believe in writing that the petitioner Dilbag Singh was guilty of an offence punishable under the Act and thus, even if the averments in the grounds of arrest are taken on their face value, the mandatory conditions under Section 19(1) are not fulfilled. Paragraphs 15, 16 and 18 of the application for remand filed in the case of Dilbag Singh are reproduced hereinbelow:, In view of above, since the accused Dilbag Singh willfully adopted an attitude of non‑cooperation either by evading the query or by giving misleading, partial and evasive replies, the accused made a deliberate effort to hamper the investigation by not disclosing the facts and information which is in his exclusive knowledge pertaining to proceeds of crime received and generated from illegal mining activities, thereby leaving no other option but to invoke the provision of Section 19 of the Prevention of Money Laundering Act, 2002 for taking investigation to a logical conclusion and to unearth proceeds of crime., Accordingly, accused Dilbag Singh was arrested on 08.01.2024 at 12:15 pm from his residence House No. 410, Friends Colony, Yamuna Nagar, Haryana 135001 in accordance with the procedure established under Section 19., That, this Directorate requires custodial interrogation of accused Dilbag Singh in order to discover and identify further proceeds of crime and to enquire upon certain crucial aspects of the investigation related to illegal mining and transfer of funds as he was found to be \prima facie\ guilty for commission of offence of money laundering, on the basis of investigation carried out and evidences collected so far as well as material in possession of this Directorate., To the similar effect are the averments made in the application for remand dated 09.01.2024 in the case of Kulwinder Singh and in paragraph 14 of the said application, it has been observed that the petitioner Kulwinder Singh was found to be prima facie guilty for commission of the offence of money laundering on the basis of the investigation carried out. Moreover, it is the case of respondent No.2 that search was continuing even after arresting the petitioners and thus, the question of assimilation of material and formulation of reasons to believe as required under Section 19(1) prior to arresting the petitioners, more so after application of mind becomes highly doubtful. A further perusal of paragraph 39 of the reply dated 22.01.2024 filed in the case of Dilbag Singh would show that it had been observed that the arrest was made after having reason to believe that the prima‑facie offence of money laundering is made out against the petitioner person., The arrest was made after having reasons to believe that a prima facie case of offence of money laundering is made out against the petitioner., To the similar effect is the averment made in paragraph 29 of the said reply which has already been reproduced in the earlier part of the judgment. Thus, even as per the stand of respondent No.2, the arrest was made after finding a prima‑facie case against the petitioners and not after there was reason to believe on the basis of material in their possession that the petitioners were guilty of the offence punishable under the Act. In the grounds of arrest, reference has been made to one Om Guru Unit regarding which the petitioners are not stated to be either owners or in possession thereof. Further reference has been made to the orders passed by the National Green Tribunal and the order dated 18.11.2022 has been annexed as Annexure R‑4 along with the additional reply dated 29.01.2024 filed in the case of Dilbag Singh and a perusal of the same would show that M/s Development Strategies India Private Limited of which the petitioner Dilbag Singh is stated to be an authorised signatory had a mining lease whereas in the grounds of arrest the fact that the said company had a mining lease has not been mentioned and it is not clear what is the starting point showing the involvement of the petitioners with respect to the alleged proceeds of crime relatable to the FIRs. The subsequent paragraphs 6 to 14 in the grounds of arrest are all vague and general and no reference to any concrete material has been mentioned. The plea of respondent No.2 that the petitioners were non‑cooperative is also vague. The argument raised on behalf of the petitioners that such vague grounds of arrest violate the fundamental right of the petitioners as it is very difficult for the petitioners to prepare their defence in view of the provisions of Section 45 of the Prevention of Money Laundering Act, 2002 is also weighty. In the said circumstances, it cannot be said that respondent No.2 has rendered full compliance of the mandatory provisions of Section 19(1) of the Act., Section 19 sub‑section (3) of the Prevention of Money Laundering Act, 2002 provides that every person arrested under sub‑section (1) of the said provision shall within 24 hours of the said arrest be produced before the Special Court, Judicial Magistrate or the Metropolitan Magistrate as the case may be, having jurisdiction. On the basis of the arguments raised on behalf of the petitioners and the respondents, there are two aspects which the Supreme Court of India was called upon to consider. The first aspect was the non‑application of mind by the Special Court while passing the orders of remand, regarding satisfying itself with respect to the compliance of the conditions contained in Section 19 including Section 19(3). The second aspect is whether, prior to 09.01.2024 when the petitioners were produced before the Special Court at Gurugram, there was some recovery or part of cause of action within the jurisdiction of the Gurugram Court so as to meet the compliance of Section 19(3). Although the application for remand filed on 09.01.2024 referred to no such recovery, the additional reply dated 29.01.2024 filed on behalf of respondent No.2 in the case of petitioner Dilbag Singh @ Dilbag Sandhu stated that an amount of Rs.7.50 lakhs was seized from the residence of Raman Ojha, a 50 % partner in Delhi Royalty Company, and thus the Court at Gurugram had jurisdiction at the time of the remand order. The panchnama dated 05.01.2024 (Annexure R‑2) shows that House No. 816, Sector 15‑A, Faridabad, belonging to Raman Ojha was searched on 04.01.2024 and Rs.7.50 lakhs was seized. The petitioners contend that the recovery has no connection with them and does not relate to any premises owned or possessed by either petitioner. They further contend that the alleged recovery from a third‑person's residence cannot be said to confer jurisdiction on the Court at Gurugram on 09.01.2024. Both petitioners are residents of Yamuna Nagar, and the Special Court at Gurugram had no jurisdiction with respect to offences committed in Yamuna Nagar; as per the notification dated 19.01.2021 (Annexure P‑8), the competent Court of jurisdiction for offences in the revenue district of Yamuna Nagar is the Court of Sessions Judge, Ambala., Several arguments on whether the Court at Gurugram would have jurisdiction to finally try the case have been raised by both sides. The Honorable Supreme Court of India in Rana Ayyub's case observed that the question of territorial jurisdiction requires an enquiry into a question of fact as to the place where the alleged proceeds of crime were concealed, possessed, acquired or used and that the answer depends on the evidence before the Trial Court. Hence the question cannot be decided finally in the present petitions while serious factual disputes remain. Moreover, in the present case the complaint is yet to be filed by the respondents and the issue can be finally considered only after the entire material is examined. These observations do not affect the findings recorded earlier under ground No.1, where the issue was the application of mind with respect to compliance of the provisions of Section 19 including Section 19(3) of the Prevention of Money Laundering Act, 2002 by the Special Court on the date the petitioners were remanded and the Enforcement Directorate was given their custody., At this stage it is relevant to deal with the objection raised by respondent No.2 regarding the specific non‑challenge by the petitioner Dilbag Singh @ Dilbag Sandhu to the second order dated 16.01.2024 granting extension of Enforcement Directorate custody of both petitioners to respondent No.2. The first petition, CRM‑M‑2191‑2024 titled Dilbag Singh @ Dilbag Sandhu, was drafted on 11.01.2024 and was heard on 15.01.2024. On that date the Court passed an order directing the Registry to clarify whether the matter should be heard by a Division Bench or a Single Bench. The order read: \Learned Senior Counsel for the petitioner has pointed out that the petitioner, in view of the aforesaid judgments, had filed a writ petition under Article 226 of the Constitution of India but, since an objection was raised regarding the maintainability of the same, the instant petition under Section 482 of the Code of Criminal Procedure has been filed. Registry is thus directed to clarify: (1) Whether in view of the aforesaid cases filed under Article 226 and entertained by the Honorable Division Bench, the present petition is to be listed before the Honorable Division Bench or a Single Bench? (2) If the matter is to be listed before a Single Bench, whether it should be listed before the learned Single Judge hearing all matters under the Prevention of Money Laundering Act or before this Court which has been assigned the roster dealing with all criminal matters (SB).\, Subsequently, the Registry, after obtaining orders from the Acting Chief Justice, placed the matter before this Court. With respect to the maintainability of the present petitions under Section 482 of the Code of Criminal Procedure, no objection was raised by respondent No.2 during the arguments., From the foregoing, it is apparent that the first petition was filed and taken up by this Court prior to 16.01.2023, and therefore the petitioner Dilbag Singh @ Dilbag Sandhu could not challenge the order dated 16.01.2024 in that petition. The prayer clause sought specific challenges to the arrest order, arrest memo, and the remand order dated 09.01.2024, and also requested any other order or direction the Court may deem fit. The order dated 16.01.2024 was placed on record by respondent No.2 in their reply dated 22.01.2024 (Annexure R‑8). In the second petition, CRM‑M‑3385‑2024, filed by petitioner Kulwinder Singh and heard on 23.01.2024, the order dated 16.01.2024 was specifically challenged. That order, a common order extending the period of remand of both petitioners, was examined, and after considering the arguments, this Court held that both orders should be set aside for the reasons given above., The Honorable Supreme Court of India in the case of Davinder Pal Singh observed that it is a settled proposition of law that if the initial action or order is found to be illegal, then all subsequent and consequential proceedings fall automatically, and this principle applies to judicial, quasi‑judicial and administrative proceedings alike. Once an order at the initial stage is bad in law, all further proceedings consequent thereto are non‑existent and must be set aside. Accordingly, the Supreme Court of India held that since the impugned order could not be sustained, the subsequent proceedings, orders, FIR and investigation stand automatically vitiated and must be set aside.
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Similarly in Mangal Prasad Tamoli (deceased) by Ladies and Gentlemen v. Narvadeshwar Mishra (deceased) by Ladies and Gentlemen & Others, (2005) 3 Supreme Court Cases 422, Supreme Court of India held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside., In C. Albert Morris v. K. Chandrasekaran & Others, (2006) 1 Supreme Court Cases 228, Supreme Court of India held that a right in law exists only and only when it has a lawful origin., Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity cannot be sustained. As a consequence, subsequent proceedings, orders, FIR, investigation stand automatically vitiated and are liable to be declared non est., In view of the above, the appeals succeed and are accordingly allowed. The impugned orders challenged herein are declared to be a nullity and, as a consequence, the FIR registered by the Central Bureau of Investigation is also quashed., To the similar effect is the law laid down by the Honorable Supreme Court of India in the case titled Ritesh Tewari and another Vs. State of Uttar Pradesh and others, reported as (2010) 10 Supreme Court Cases 677. Paragraphs 32 to 35 of the said judgment are as follows:, 32. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action or development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits., 33. In C. Albert Morris v. K. Chandrasekaran Supreme Court of India held that a right in law exists only and only when it has a lawful origin., 34. In Mangal Prasad Tamoli v. Narvadeshwar Mishra Supreme Court of India held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside., 35. In the instant case, as we have observed that the alleged sale deed dated 20S4S1992 in favour of Mayur Sahkari Avas Samiti has been avoided, all subsequent transactions must be ignored., Since in the present case the order of arrest, arrest memo and the remand order dated 09.01.2024 are held to be illegal and against law for the detailed reasons given herein above, the subsequent order of remand and other consequential orders are also liable to be set aside. Moreover, Supreme Court of India is of the view that even the order dated 16.01.2024 is illegal and thus deserves to be set aside., The facts of the judgments relied upon by counsel for respondent No.2, i.e., Mumbai International Private Limited case (supra) and Gurdev Singh case (supra), are distinguishable from the facts of the present case and do not further the case of respondent No.2; consequently, the objection raised on behalf of respondent No.2 is liable to be rejected and is accordingly rejected., As per the discussion herein above, both the petitions deserve to be allowed and the impugned orders deserve to be set aside on the following grounds: a) Non-application of mind and non-recording of compliance of the conditions/stipulations contained in Section 19 by the Special Court while passing the impugned orders. b) Illegal detention/wrongful restraint of the petitioners from 04.01.2024 to 08.01.2024 amounting to arrest on 04.01.2024 itself and consequential violations of Section 19 of the Prevention of Money Laundering Act read with Section 167 of the Criminal Procedure Code on account of non-production of petitioners within 24 hours. c) Violation of provisions of Section 19(2) of the Prevention of Money Laundering Act, 2002. d) Non-compliance of Section 19(1) of the Prevention of Money Laundering Act, 2002., The custody of the Enforcement Directorate is over and presently the petitioners are in judicial custody., Keeping in view the above‑said facts and circumstances, both the petitions are allowed and the impugned arrest orders, arrest memos along with the orders of remand passed by the Special Judge, Gurugram and the Additional Sessions Judge, Gurugram and all orders consequential thereto in both the cases are set aside and both the petitioners are ordered to be released forthwith, unless their incarceration is required in connection with any other case., All the pending miscellaneous applications, if any, shall stand disposed of, in view of the aforesaid judgment., February 08, 2024 (Vikas Bahl) Naresh K./Pawan/Davinder Judge
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Shri Indrakumar Jain, B-303, Runwal Towers, Co-operative Housing Society Ltd., Kolbad, Thane (West) 400 601, Petitioner. M/s. Dainik Bhaskar, B-1, 405, Marathon Innova, Ganpat Rao Kadam Marg, Lower Parel, Mumbai 400 013, Respondent. Shri Manmohan Agarwal, Chairman, Chief Editor, M/s. Dainik Bhaskar, B-1, 405, Marathon Innova, Ganpat Rao Kadam Marg, Lower Parel, Mumbai 400 013, Respondent., Petitioners Shri Indrakumar Jain, B-303, Runwal Towers, Co-operative Housing Society Ltd., Kolbad, Thane (West) 400 601. Respondents M/s. Pioneer Book Co. Pvt. Ltd., Petitioners Devendra Pratap Singh, Rajendra Honey Comb Children Home, 1st Floor, D-1, Old Ostwal Tower, Khargaon, B.P. Road, Bhayandar (East), Thane. Respondents Mr. Sanjay Singhvi, Senior Advocate with Mr. Bannet D. Costa and Ms. Jignasha Pandya for the petitioner in Writ Petition 91/12 of 2019 and for respondents in Writ Petition 12022/2019 and applicant in Interim Application 1382/2021. Mr. Anand R. Pai as well as Mr. Pratik Kothari in behalf of Mr. Avinash Patil for the petitioners in Writ Petition 12022/2019 and for the respondents in Writ Petition ..., These petitions are placed before us upon the reference made by the learned Single Judge to answer the question of maintainability of a complaint of unfair labour practice by a working journalist before an Industrial Court on the basis that a working journalist is covered by the definition of \employee\ under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971., Writ Petition Nos. 91/12 of 2019 and 12022 of 2019 are cross‑petitions challenging the order passed by the Industrial Court in the complaint filed by Indrakumar Jain, a working journalist. The Industrial Court dismissed the complaint. Writ Petition 91/12 of 2019 is filed by Indrakumar Jain challenging the order of the Industrial Court in its entirety as his complaint has been dismissed holding that he is not an \employee\ under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The employer, newspaper establishment Dainik Bhaskar, has filed Writ Petition No. 12022 of 2019 to the limited extent of findings about the absence of liability of Indrakumar Jain., Writ Petition No. 3541 of 2019 involves a dispute between newspaper establishment Pioneer Book and Devendra Pratap Singh, a working journalist. Pioneer had objected to the maintainability of the complaint filed by Devendra Pratap Singh under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act on the ground that he does not fall within the definition of \employee\ under Section 3(5) of that Act. The Labour Court directed Pioneer to reinstate Devendra Pratap Singh with full back‑wages and continuity of service with arrears of wages. The Industrial Court rejected the revision application, and both orders are challenged., When these petitions came for consideration before the learned Single Judge, Justice S. C. Gupte, arguments centered around whether working journalists could be considered as employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The following decisions of this court were placed on record: (a) Bennett Coleman Co. Ltd. v. Mumbai Mazdoor Sabha (referred to as Bennett Coleman‑1); (b) Bennett Coleman v. Gurbir Mahavir Singh (referred to as Bennett Coleman‑2); (c) Shashikaran R. Shrivastava v. Bennett Coleman & Co.; (d) Mahesh H. Rajput v. United News of India., The learned Single Judge opined that there existed a conflict in the views taken in these judgments and directed the registry to place the matters before the learned Chief Justice for consideration of constituting a larger bench. There is no separate issue framed and, by consent of the parties, we take observations in paragraph 6 of the referral order as the question referred by the Single Judge: \In the premises, the Registry may place this Petition before the Hon’ble Chief Justice for assigning it to a Division Bench on the question of maintainability of a complaint of unfair labour practice by a working journalist before an Industrial Court on the basis that he is covered by the definition of employee under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.\, The interplay between three statutory provisions is involved: (a) Section 3 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Working Journalists Act) states that the provisions of the Industrial Disputes Act, 1947, as in force, shall, subject to the modification specified in sub‑section (2), apply to working journalists as they apply to workmen within the meaning of that Act. (b) Section 2(s) of the Industrial Disputes Act, 1947 defines a \workman\ as any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes any such person who has been dismissed, discharged or retrenched in connection with an industrial dispute. It excludes persons in the armed forces, police service, prison, or those employed mainly in a managerial, administrative or supervisory capacity with specified wages. (c) Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act defines an \employee\ to also mean a workman as defined in Section 2(s) of the Industrial Disputes Act., The Working Journalists Act defines the rights and obligations of working journalists and their employers, empowers the government to set and revise wages and conditions, and provides job security measures. It also establishes a mechanism for dispute resolution. The Act has twenty‑one sections and a schedule. Chapter II deals with the working journalist, Chapter IIA with non‑journalist newspaper employees, Chapter III with the application of certain acts to newspaper employees, and Chapter IV contains miscellaneous provisions. Under the rule‑making power of Section 20, the Central Government has made rules to carry out the object of the Act., Section 2 of the Working Journalists Act lays down definitions. Section 2(b) defines \newspaper\ as any printed periodical work containing public news or comments on public news and includes other classes of printed periodical work as may be notified by the Central Government in the Official Gazette. Section 2(d) defines a \newspaper establishment\ as an establishment under the control of any person or body of persons, whether incorporated or not, for the production or publication of one or more newspapers or for conducting any news agency or syndicate, including newspaper establishments specified in the schedule. Section 2(f) defines a \working journalist\ as a person whose principal avocation is that of a journalist and who is employed as such, either whole‑time or part‑time, in one or more newspaper establishments and includes editor, leader‑writer, news editor, sub‑editor, feature‑writer, copy‑tester, reporter, correspondent, cartoonist, news‑photographer and proof‑reader, but does not include any person employed mainly in a managerial or administrative capacity or in a supervisory capacity performing functions mainly of a managerial nature. Section 2(g) states that all words and expressions used but not defined under the Working Journalists Act and defined under the Industrial Disputes Act shall have the meanings assigned to them in that Act., Section 3(1) of the Working Journalists Act reads: \The provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall, subject to the modification specified in sub‑section (2), apply to, or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act.\ Thus, under Section 3, the provisions of the Industrial Disputes Act apply to working journalists as they apply to workmen., Section 4 makes special provisions for certain cases of retrenchment of working journalists. Section 5 provides for payment of gratuity to working journalists, and Section 5(A) allows nomination in respect of the gratuity. Section 6 regulates working hours. Section 7 confers entitlement to leave., The wages of working journalists are dealt with in Sections 8 to 13A. Section 8 empowers the Central Government to fix and revise wage rates. Sections 9 and 10 prescribe the procedure for fixing and revising rates, with Section 9 authorising the constitution of a wage board and Section 10 dealing with the board’s recommendations. Section 12 gives the Central Government power to enforce the wage board’s recommendations. Section 13 ensures that working journalists receive wages not less than those specified in the order. Section 13A permits the Government to fix interim rates of wages. Section 13AA provides for contingencies where the wage board is unable to function, allowing the Government to constitute a tribunal., Section 14 makes the provisions of the Industrial Employment Standing Order 1946 applicable to newspaper establishments subject to certain conditions. Section 15 applies the Employees' Provident Fund Act to working journalists subject to conditions. Section 16 provides that these provisions shall have an overriding effect on any award or agreement if they are less beneficial to working journalists. Section 17 makes special provision for recovery of dues of a working journalist. The Central Government, under Section 20, has framed rules regarding the fixation of rates of wages. These are the basic provisions applicable to working journalists under the Working Journalists Act., Section 2(k) of the Industrial Disputes Act defines an \industrial dispute\ as any dispute or difference between employers and employers, between employers and workmen, or between workmen and workmen. Section 2(s) defines \workman\ as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, but does not include persons subject to the Air Force Act, 1950, the Army Act, 1950, the Navy Act, 1957, those employed in the police service or as prison officers, or those employed mainly in a managerial or administrative capacity, or those in a supervisory capacity drawing wages exceeding ten thousand rupees per month or exercising functions mainly of a managerial nature., The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act was enacted in 1971 to provide for recognition of trade unions, facilitate collective bargaining, confer powers on unrecognised unions to deal with strikes and lock‑outs, define and prevent unfair practices, and establish courts for the purpose of the Act. Section 3(2) refers to the \Central Act\ as the Industrial Disputes Act, 1947. Section 3(5) defines \employee\ as an employee as defined in clause (13) of Section 3 of the Bombay Act, and in any other case means a workman as defined in clause (s) of Section 2 of the Central Act, and a sales promotion employee as defined in clause (d) of Section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976. Thus, an employee in relation to an industry also means a workman as defined in Section 2(s) of the Industrial Disputes Act., Section 3(13) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act defines a \recognised union\ as a union that has been issued a certificate of recognition under Chapter III. \Union\ is defined under Section 3(17) as a trade union of employees which is registered under the Trade Unions Act, 1926. Chapter II deals with authorities under the Act. Recognition of unions is regulated under Chapter III. Obligations of the unions and employees are stated under Chapter IV. Section 20 provides for certain amendments. By power exercised under Section 61, rules have been framed for the recognition of trade unions and the prevention of unfair labour practices., We have heard Mr. Sanjay Singhvi, learned Senior Advocate, and Ms. Jane Cox, learned counsel for the petitioners (working journalists). Mr. Vijay Vaidya and Mr. Anand Pai, learned counsel for the newspaper establishments (the management)., Before we address the arguments on whether working journalists are \employees\ under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, we will deal with the submission of the management that the reference to a larger bench was not necessary., The management submitted that the learned Single Judge should not have referred the question to a larger bench because there were no conflicting decisions and the only binding judgment on this question is of Justice Baldota in Shashikaran R. Shrivastava. It is submitted that the decision in Shashikaran Shrivastava was binding on the learned Single Judge, and the reference order does not give reasons why that view is to be doubted; consequently, the reference to a larger bench was not correct. The journalists submitted that there existed a conflict and the learned Single Judge could and has made a reference because an important question has arisen., The issue of whether an employee defined under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act would also mean a working journalist came up for consideration before the learned Single Judge, Justice D. R. Dhanuka, in the case of Bennett Coleman‑1. In that case the employer challenged the order passed by the Industrial Court on an application for interim relief by the complainant. The complaint concerned the continuation and induction of an editor in a newspaper. The employer contended that a working journalist was not an employee under Section 3(5) of the Act and also contested the prayer for interim relief on merits. After the grant of interim relief by the Industrial Court, the employer filed a writ petition challenging the order, pointing out that a question of law was raised whether the Act would apply to a working journalist., Justice D. R. Dhanuka, in Bennett Coleman‑1 first referred to the provisions of the Working Journalists Act and the Industrial Disputes Act and analyzed the definitions therein. He then referred to the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act and observed: \To my mind, it is quite clear that the definition of workman as defined in clause (5) of Section 2 of the Industrial Disputes Act, 1947 read with Section 3 of the Working Journalists Act (45 of 1955) is incorporated in the Maharashtra Act of 1972 while defining the expression employee. Section 28 of the said Act provides that a complaint relating to unfair labour practice may be filed by any union, an employee, an employer or an investigating officer. Thus, if working journalists can be considered as employee within the meaning of Section 3(5) of the Act, it follows that the Industrial Court had jurisdiction to entertain the complaint and the complaint was maintainable even as it concerned working journalists.\, It is well‑settled law that where a fiction is created by a provision of law, the court must give full effect to the fiction and should not allow its imagination to be beguiled by any other imagination. The Supreme Court in Union of India v. M/s. Jalan Udyog (AIR 18) held that the definition of \employee\ in the Maharashtra Act incorporates the definition of \workman\ as set out in clause (s) of Section 2 of the Industrial Disputes Act, 1947. The definition of \workman\ is applicable to working journalists by virtue of the provisions contained in Section 2(g) and Section 3 of the Working Journalists Act, 1955. The Maharashtra Act cannot be read in isolation; the scheme and object of the Act are clear, as noted in Section 59 of the Maharashtra Act., In view of the above discussion, I held that both complaints filed by respondent No.1 were maintainable in law and the Industrial Court has jurisdiction to entertain the complaints. This finding is not to be treated as an expression of view of the court at an interlocutory stage; it is the final view for all purposes, including deciding the pending complaints and writ petitions before the Single Judge of this court., Justice D. R. Dhanuka then examined the matter on merits and, by order dated 25 April 1994, admitted the petition, passed certain interim directions, and further order on 29 April 1994. He later disposed of the petition Bennett Coleman‑2, relying on the order passed in Bennett Coleman‑1, observing that the petition under Article 226 of the Constitution impugned the order dated 9 February 198? passed by the Industrial Court in Complaint (ULP) No. 425 of 1985. On 25 March 1988, the petition was admitted because it raised the question whether the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act applies to a working journalist., Counsel for the petitioner, Shri S. C. Dharmadhikari, submitted that the working journalist cannot be considered an employee within the meaning of Section 3(5) of the Act. He argued that the working journalists are entitled to involve certain provisions of the Industrial Disputes Act by reason of the fiction created by the Working Journalists Act, and that fiction cannot be extended for the purpose of the Maharashtra Act. Similar arguments were advanced in Writ Petition No. 1079 of 1994. By my judgment dated 25 April 1994 in Writ Petition Nos. 1079 and 1090 of 1994, I have taken the view that working journalists are workmen within the definition of workmen in Section 2(s) of the Industrial Disputes Act and are employees within the meaning of the expression in Section 3(5) of the Act. There was no independent reasoning except reliance on the decision in Bennett Coleman‑1., An intra‑court appeal was filed against the orders passed in Bennett Coleman‑1, and the appeal bench allowed the appeal, observing that the jurisdiction and maintainability of the complaint should not be reopened. The bench set aside the orders dated 25 April 1994 and 29 April 1994 passed by the Single Judge and the order of the Industrial Court dated 17 February 1994 in Complaint No. 1260 of 1993, directing the Industrial Court to dispose of the complaint by 31 October 1994 and to consider all contentions together., The next decision noted in the reference order is of the learned Single Judge, Justice R. P. Sondur Baldota, in the case of Shashikaran R. Shrivastava. The journalist Shrivastava, a sub‑editor with Bennett Coleman Co. Ltd., filed a complaint alleging unfair labour practice. The Industrial Tribunal dismissed the complaint, holding that the journalist was not an employee within the meaning of Section 3(5) of the Act. Shrivastava appealed to the High Court, arguing that a working journalist is an employee under the Act by operation of law, that Section 3(2) of the Working Journalists Act creates a legal fiction treating working journalists as workmen for all purposes under the Industrial Disputes Act, and that the legislative intent was to include working journalists in the definition of employee under the Maharashtra Act. Justice Baldota framed the specific question whether working journalists were employees within the meaning of Section 3(5) of the Act and answered it in the negative, holding that a working journalist cannot be considered an employee under that provision.
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The relevant observations and conclusions are as under: These petitions filed under Article 226 of the Constitution of India raise the following common question of law: Whether a Working Journalist within the meaning of Section 2(f) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (the Working Journalists Act) is an employee within the meaning of Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (the PULP Act). In the circumstances in my considered opinion, it cannot be said that the Working Journalists Act creates a fiction whereby working journalists are to be treated as a workman for all purposes under the Industrial Disputes Act., The second and alternate argument of Mr. Sanghavi is that as per Section 3(1) of the Working Journalists Act, all subsequent amendments of the Industrial Disputes Act will apply to working journalists as they apply to other workmen covered under the Industrial Disputes Act. He argues that Section 3(1) of the Working Journalists Act amounts to legislation by reference and, in a matter of legislation by reference, the subsequent amendments in the Act referred to must be read into the referring Act also. He further argues that the PULP Act is in the nature of an amendment to the Industrial Disputes Act and therefore the PULP Act must apply to working journalists. According to him, Section 20(2) of the PULP Act actually amends the Industrial Disputes Act and the amendments to the Industrial Disputes Act are set out in Schedule I of the PULP Act. These amendments apply to all industries in the State of Maharashtra for which the State Government is the appropriate Government. Therefore the same will apply to the respondent undertaking., Considering the purpose of the PULP Act, its scheme and the specific definitions thereunder of the parties to whom the same is made applicable, it is not possible to accept the argument that the entire Act is an amendment to the Industrial Disputes Act. It is an independent legislation with a specific object and purpose, creating rights and liabilities for specified persons with provision for the machinery for enforcement of rights and obligations under the Act., As regards Schedule I to the PULP Act, the amendments to the Industrial Disputes Act stated therein must be held to ensure that the status granted to the recognised unions in the PULP Act is not defeated. Secondly, as conceded by the petitioners, the Working Journalists Act, in addition to the rights and responsibilities under the Industrial Disputes Act, grants some additional and enhanced rights to the working journalists in respect of leave, gratuity, wage boards for fixing of wages and service conditions, etc. Thirdly, as has been rightly pointed out by Mr. Talsania, if the State legislature intended to extend the PULP Act to the working journalists it would have simply amended the definition of the term employee therein to include the working journalists. Such exercise has been done in respect of Sales Promotion Employees defined under the Sales Promotion Employees (Conditions of Service) Act, 1976. Therefore, in my opinion, the second argument of Mr. Sanghavi cannot be accepted., The third argument of Mr. Sanghavi is that the petitioners who are working as Senior Sub‑editor and Sub‑editor respectively, even de hors the provision of the Working Journalists Act, would be workmen within the meaning of Section 2(s) of the Industrial Disputes Act considering the nature of the actual work being done by them. According to him, the exact nature of the work being done by the petitioners is a mixed question of fact and law; oral and documentary evidence thereon will have to be led and, for that purpose, the interests of justice demand that the matter be remanded to the Industrial Court for determining the exact nature of work done by the petitioners. In support of the submission for remand he relies upon the decisions of the Supreme Court of India in Hindustan Lever Limited v. Hindustan Lever Employees Union and Others reported in (2007) I CLR 737., The petitioners herein working as sub‑editors cannot even claim to be doing a stereotyped work. They have to possess certain inherent qualities for performing their job. They need to have a flair for the language along with mastery over language. They need to be in tune with current topics, have sufficient knowledge of subjects like politics, law, science, sports, arts, etc. As submitted by Mr. Talsania, the Majithia Wage Board constituted under Sections 9 and 13(c) of the Working Journalists Act describes the sub‑editor as a person who receives, selects, shortens, summarizes, elaborates, translates, edits and headlines news items of all descriptions and may do some or all of these functions. This description makes their work undoubtedly creative. For the sake of performing their creative work, if they have to acquire technical skills to operate computers, such skill would be only ancillary to their main work and cannot be relevant for deciding whether they are workmen within the definition of Section 2(s) of the Industrial Disputes Act. Therefore the third argument of Mr. Sanghavi also needs to be rejected., For the reasons stated above it is held that a working journalist within the meaning of Section 2(f) of the Working Journalists Act is not an employee within the meaning of Section 3(5) of the PULP Act and the petitions are dismissed. Justice Baldota opined that it cannot be said that the working journalists are not employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Justice Baldota accordingly disposed of the writ petition confirming the view taken by the Industrial Court., The decision of the learned Single Judge, Justice Baldota, dated 6 August 2015 was challenged by journalist Shrivastava in the Supreme Court of India, and the Special Leave Petition to Appeal No. 10228 of 2017 was dismissed by the Supreme Court by order dated 21 April 2017. Review Petition No. 1624 of 2017 was also dismissed by order dated 16 August 2017. The view taken by Justice Baldota was confirmed as even the review was dismissed., Lastly, in the case of Mahesh Alidas Rajput, the working journalist Mahesh Rajput was sought to be transferred by the management and he filed a complaint under Section 28 read with Items 3 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act in the Industrial Court, Mumbai. The complaint was dismissed and the writ petition filed by Mahesh Rajput challenging this order was considered by the learned Single Judge, Justice R. G. Ketkar. The management relied upon the decision in the case of Shashikaran Shrivastava. Though the Industrial Court had not dismissed the complaint on the ground of maintainability, Justice Ketkar observed that the main hurdle in the way of the complainant was the judgment of Shashikaran Shrivastava and therefore, the complaint itself was not maintainable., These decisions were placed before the learned Single Judge, Justice S. C. Gupte, when the order making a reference to the larger Bench was passed., It is important to note that the order in Bennett Coleman‑1 was an interim order. The Appeal Bench set aside the order passed in Bennett Coleman‑1. The order passed in Bennett Coleman‑2 was completely based on the order passed in Bennett Coleman‑1, which the Appeal Bench had set aside. Therefore, the view taken by Justice D. R. Dhanuka, which is relied upon by the journalist, was set aside by the Appeal Bench., On the other hand, Justice Baldota considered the matter finally. The issue squarely arose before Justice Baldota as the Industrial Court had dismissed the complaint as not maintainable on the ground that the petitioner was not an employee within the meaning of Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Therefore, this question arose for consideration before Justice Baldota, not by way of an interim order but by final adjudication. Justice Baldota considered all the arguments of the working journalist and concluded that the working journalist could not be considered an employee under the definition of employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. This judgment in Shashikaran was subjected to challenge in the Supreme Court of India. The Special Leave Petition was dismissed, and the Review Petition thereafter was also dismissed., The learned Single Judge in the reference order, though noting that the Appeal Bench had set aside the decision in the case of Bennett Coleman‑1, observed that the decision was presumably set aside on the footing that the order in Bennett Coleman‑1 was unworkable and that there was nothing to indicate that the Appeal Bench actually found fault with the decision in Bennett Coleman‑1 on the application of the definition of employee. The learned Single Judge also observed that Bennett Coleman‑2 will have a life of its own. With respect, these conclusions are not correct and are not borne by the record. Before the Appeal Bench the correctness of the view taken was also challenged. The arguments of the management before the Appeal Bench were not only unworkable but also correct both in fact and law. The order in Bennett Coleman‑1 was an interim order. The Division Bench observed that in an interim order the question of law finally could not have been decided and had dismissed the writ petition itself. Further, the Appeal Bench directed that the Industrial Court will decide the matter without referring to the order in Bennett Coleman‑1, which was set aside. Therefore, the law laid down in Bennett Coleman‑1 did not exist. As regards Bennett Coleman‑2, it is a short order of three paragraphs with no independent reasoning but sole reliance on the orders passed in Bennett Coleman‑1. It is difficult to appreciate the view taken in the reference order that the order passed in Bennett Coleman‑2 would have an independent life of its own laying down a binding position of law when the order itself states that it is based entirely on Bennett Coleman‑1. We find merit in the grievance of the management that no conflict in decisions existed as there was only one considered view on the subject. Therefore, when the learned Single Judge considered the present petitions only one conclusive dicta was holding the field., The next ground given in the referral order is that the issue is of importance. The management contends that a question could be of importance, but if it is already considered and settled by the Court, unless reasons are given why the existing view needs reconsideration, merely stating that the question is of importance cannot justify a reference. The management also contended that all the arguments that are sought to be made before the Single Judge and now before this Bench were already argued before Justice Baldota and were concluded and even Special Leave Petition and review were rejected by the Supreme Court of India. Even for referring the question to the larger bench on the ground of public importance, the referral order should have given reasons as to why the prevailing view, which was binding on the Single Judge, needs to be reconsidered. It is correct that the referral order does not give any reasons as to why the view taken by Justice Baldota was incorrect or per incuriam. Academic debates apart, the principle of legal certainty and stability also needs to be kept in mind., Now that the reference is already made and placed before the Bench on the premise that the issue is of importance, the learned counsel for the parties have addressed the Court on the question framed and accordingly we have proceeded., Mr. Singhvi, the learned Senior Advocate, and Ms. Cox, the learned counsel for the journalists, firstly contended that the Maharashtra Legislature, in 1972, when it passed the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, was aware of the interpretation of the term “workman” under the Industrial Disputes Act as inclusive of working journalists. The Working Journalists Act incorporates the provisions of the Industrial Disputes Act for working journalists as they apply to workmen, despite the initial definition of “workman” not encompassing all working journalists. All working journalists, regardless of their specific job nature, should be considered workmen under the Industrial Disputes Act. The inclusion of working journalists by the Working Journalists Act in the Industrial Disputes Act must be interpreted as if the term working journalist was included wherever the term workman appears. Any subsequent amendments to the Industrial Disputes Act apply to working journalists, as indicated by the phrase “for the time being” in Section 3 of the Working Journalists Act. When a legal fiction is created, the Court's role is to understand the underlying reason and allow the fiction to have full consequences. In this case, the historical context and the Press Commission's report clarify that applying the Industrial Disputes Act to working journalists was crucial, justifying the legal fiction. The Working Journalists Act effectively amended the Industrial Disputes Act in 1955 to include working journalists in the definition of workman. Consequently, when the definition of workman was incorporated into the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act in 1972, it automatically included working journalists. The Working Journalists Act also extended the applicability of the Industrial Employment (Standing Orders) Act and the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 to newspaper establishments, making all relevant labour laws applicable to working journalists. Initially designed for the workmen, the dispute resolution machinery of the Industrial Disputes Act was extended to working journalists, treating them as workmen. The Working Journalists Act, 1955, does not provide an independent machinery for implementation but makes other Acts applicable to working journalists. It was contended that the disputes can be resolved under the Industrial Disputes Act or the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Treating working journalists as workmen under the Industrial Disputes Act while not extending the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act would create a discriminatory classification. The Maharashtra Legislature was aware of how the word “workmen” has been interpreted in the Industrial Disputes Act when it enacted the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act in 1971 and at that time, the definition of “workmen” under the Industrial Disputes Act applied to the working journalist. The journalists contend that therefore wherever the word “workmen” or its grammatical cognates are used, the Industrial Disputes Act should include the working journalists. This legal fiction must be given its full play and extended to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. The journalists have relied on the decisions of the Supreme Court of India in Lachaux v. Independent Print Ltd., Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise and Kasturi & Sons (Private) Ltd. v. Shri N. Salivateeswaran & Anr. in support of the arguments that the legal fiction created under the Working Journalists Act by treating them as workmen under the Industrial Disputes Act should be given full play. The journalists have relied upon the decision in the case of Voltas Ltd. Bombay v. Union of India & Others. It is submitted that once a specific general legal fiction is created to advance a public policy and preserve the rights of the individual and institutions, and that a legal fiction creates an imaginary state of affairs, then it would entail the natural corollaries of that state of affairs. Based on these decisions, it is contended that the legislature is taken to have known what the law was prior to the enactment, and therefore, there is a presumption that a statute does not alter the existing legal position unless provided either expressly or by necessary implication., Mr. Vijay Vaidya and Mr. Anand Pai, the learned counsel for the management, countered these submissions contending that the Working Journalists Act is a comprehensive legislation and not extending other labour statutes to working journalists, except the Industrial Disputes Act, does not create any anomaly or discrimination. The Working Journalists Act does not incorporate the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act under Section 3, and as a result, working journalists cannot be considered employees under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Their status as working journalists does not change to workmen under Section 2(s) of the Industrial Disputes Act. The Working Journalists Act contains provisions for Wage Boards under Sections 9 and 13‑C for both working journalists and non‑journalist newspaper employees, addressing wage and service condition issues. The Working Journalists Act is a package deal and the working journalists are a class by themselves and their status does not change to being workmen under Section 2(s) of the Industrial Disputes Act. The legal fiction under Section 3 of the Working Journalists Act is limited and cannot be extended to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. The management relies on the decisions of the Supreme Court of India in the cases of State of Maharashtra v. Laljit Rajshi Shah and Others, Raj Kumar Khurana v. State of NCT of Delhi and Others, and State of A.P. and Others v. A.P. Pensioners Association to submit on the limited nature of legal fiction. The Supreme Court, in these decisions, has laid down the legal position that a fiction is not to be extended beyond the language of the provision in which it is created, and the legal fiction enacted for one Act is normally restricted to that Act and cannot be extended to cover another Act. The management argues that the law is settled that under the garb of interpreting beneficial legislation liberally, legal fiction cannot be stretched beyond what is contemplated and how the working journalists will benefit if a legal fiction is extended to another Act cannot be a ground for extending the legal fiction beyond its object., In short, the journalists contend that they are to be considered employees under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act because they are workmen under Section 2(s) of the Industrial Disputes Act and Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act includes workmen under Section 2(s) of the Industrial Disputes Act. The journalists contend that therefore they, being employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, are entitled to take recourse to the remedies provided under the PULP Act. The management contends that the journalists are to be treated as workmen under Section 2(s) of the Industrial Disputes Act as a limited fiction and their status as working journalists does not undergo a change, and therefore, there cannot be an extension of the fiction beyond the Industrial Disputes Act. The declaration or fiction that the working journalists are workmen under Section 2(s) of the Industrial Disputes Act cannot extend to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Thus the first and main dispute is what is the status of the working journalists and the extent of the legal fiction under Section 3 of the Working Journalists Act., To examine this issue, a brief review of the legislative history of the Working Journalists Act and the analysis of the provisions of the three enactments need to be undertaken to determine if the Working Journalists Act is a complete code and what the status of the working journalists is., In the case of Express Newspapers (Pvt.) Ltd. and Others v. Union of India and Others, the Supreme Court of India elaborated the legislative history of the Working Journalists Act. Initially, the newspaper industry in India was led by prominent figures in various fields. Eventually, the industry became profit‑driven with significant investments from business houses. Journalists nationwide advocated for fair wages, benefits, and working conditions. Government committees were formed in Uttar Pradesh and Madhya Pradesh to address these concerns. In 1951, formation of a commission to examine the state of the press in the country was suggested. The Press Commission was established and submitted its report in 1954. The Press Commission's recommendations addressed several key issues, including the need for collective bargaining or adjudication to determine journalist salaries, considering the varying resources and conditions across newspapers. The Commission emphasized the influential role of journalists in shaping public opinion and stressed the importance of adequate wages and conditions to attract talent. It also recommended that the division of localities account for differing living costs and suggested specific allowances accordingly. The Commission examined the applicability of labour laws to journalists and made recommendations regarding tenure, notice periods, working hours, leave, retirement benefits, and legislation to regulate the newspaper industry. Following the Press Commission's report, a statute was enacted, applying the Industrial Disputes Act of 1947 to journalists. Later a bill was introduced in November 1955 to regulate service conditions, incorporating Press Commission recommendations on notice periods, bonuses, rest days, leave and provident funds to meet the demands for improved conditions. The Act, titled “The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955,” was passed on 20 December 1955 to achieve these objectives., As the reading of Section 3 of the Working Journalists Act would show, it provides a forum for the working journalist to adjudicate their dispute by taking recourse to the machinery under the Industrial Disputes Act of 1947. It is pertinent that in Section 3 there is no reference in that regard to non‑journalist newspaper employees as defined under Section 2(dd) as they would otherwise fall within the ambit of Section 2(s) of the Industrial Disputes Act if the nature of work performed by them forms part of the inclusive definition of workman., The scheme of the Working Journalists Act demonstrates a special status conferred on the working journalists. Chapter II of the Working Journalists Act, after applying the provisions of the Industrial Disputes Act to working journalists, governs various aspects of the employment of working journalists. Section 4 creates special provisions in certain cases of retrenchment. Section 5 provides for payment of gratuity. Section 5(A) provides for nomination by a working journalist, stating that where a nomination made in the prescribed manner purports to confer on any person the right to receive payment of the gratuity for the time being due to the working journalist, the nominee shall, on the death of the working journalist, become entitled to the gratuity and to be paid the sum due in respect thereof to the exclusion of all other persons unless the nomination is varied or cancelled in the prescribed manner. Where there are two or more nominees, it would be void if all the nominees predeceased the working journalist making the nomination. Where the nominee is a minor, it shall be lawful for the working journalist making the nomination to appoint any person in the prescribed manner to receive the gratuity in the event of his death during the minority of the nominee. Though it may appear an innocuous provision, by making this provision notwithstanding any law including testamentary law, the legislative intent to make special provisions for working journalists is clear., Under Section 6 of the Working Journalists Act, hours of work are prescribed, stating that no working journalist shall be required or allotted to work in any newspaper establishment for more than one hundred and forty‑four hours during any period of four consecutive weeks, exclusive of the time for meals. Under Section 7, provisions for leave are made laying down that every working journalist shall be entitled to earned leave on full wages for not less than one‑eleventh of the period spent on duty, leave on medical certificate on one‑half of the wages for not less than one‑eighteenth of the period of service. This is without prejudice to such holidays, casual leave or other kinds of leave as prescribed., Elaborate provisions are also made for wages payable to the working journalists under the Working Journalists Act. Section 9 states that for the purpose of fixing or revising rates of wages in respect of working journalists, the Central Government will constitute a Wage Board which shall consist of three persons representing employers, three persons representing working journalists, and four independent persons, one of whom shall be a person who is or has been a Judge of a High Court or the Supreme Court and who shall be appointed by that Government as the Chairman thereof. The Wage Board would then call upon newspaper establishments, working journalists and other persons interested in the fixation or revision of rates of wages of working journalists to make such representations. The Board shall then take into account the representations and, after examining the material placed before it, make such recommendations as it thinks fit to the Central Government for the fixation or revision of rates of wages in respect of working journalists. The Board shall have regard to the cost of living, the prevailing rates of wages for comparable employment, and the circumstances relating to the newspaper industry in different regions of the country. The Wage Board may exercise all or any of the powers that an Industrial Tribunal constituted under the Industrial Disputes Act to adjudicate an industrial dispute. Therefore, all aspects such as work hours, leave, wages and gratuity are covered under the Working Journalists Act. This clearly shows an emphasis on the special status of the working journalists., The guidance to answer the question whether working journalists have changed the status as workmen for all purposes or whether they remain an entity under the Working Journalists Act and whether the said Act is a complete code can be found in various judicial pronouncements., The leading decision on the Working Journalists Act is of the Constitution Bench rendered in 1959 in the case of Express Newspapers (Private) Ltd. where certain newspaper establishments had challenged the constitutional validity of the Working Journalists Act and the legality of the decision of the Wage Board constituted therein. The Constitution Bench held that the Act did not infringe any of the fundamental rights of the petitioners guaranteed under Article 19(1)(a), Article 19(1)(g), Article 14 and Article 32 of the Constitution of India. The Constitution Bench held that the functions of the Wage Board constituted under Section 8 of the Act were not judicial or quasi‑judicial but the fixation of rates of wages by the Wage Board was a legislative act., On this aspect, the report of the Press Commission, which preceded the enactment of the Working Journalists Act, also requires to be noted. The Supreme Court of India in the case of Express Newspaper (P) Ltd. referred to the observations of the Press Commission, which are as follows: We have already set out what the Press Commission had to say in regard to the position of the working journalists in our country. A further passage from the Report may also be quoted in this context: It is essential to realise in this connection that the work of a journalist demands a high degree of general education and some kind of specialised training. Newspapers are a vital instrument for the education of the masses and it is their business to protect the rights of the people, to reflect and guide public opinion and to criticise the wrong done by any individual or organisation however high placed. They thus form an essential adjunct to democracy. The profession must, therefore, be manned by men of high intellectual and moral qualities. The journalists are in a sense creative artists and the public rightly or wrongly expects from them a general omniscience and a capacity to express opinion on any topic that may arise under the sun. Apart from the nature of their work the conditions under which that work is to be performed are peculiar to this profession. Journalists have to work at very high pressure and as most of the papers come out in the morning, the journalists are required to work late in the night and all the news that breaks before that hour has got to find its place in that edition. Journalists thus become a highly specialised job and to handle it adequately a person should be well‑read, have the ability to size up a situation and to arrive quickly at the correct conclusion, and have the capacity to stand the stress and strain of the work involved. Their work cannot be measured, as in other industries, by the quantity of the output, for the quality of work is an essential element in measuring the capacity of the journalists. Moreover, insecurity of tenure is a peculiar feature of this profession. This is not to say that no insecurity exists in other professions but circumstances may arise in connection with the profession of journalism which may lead to unemployment in this profession.
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The security of journalists depends to some extent on the whims and caprices of the proprietors. Cases have shown that a change in the ownership of a newspaper or a change in its editorial policy has resulted in a considerable change in the editorial staff. In other industries a change in proprietorship does not normally entail a change in staff, but because the essential purpose of a newspaper is not only to give news but also to educate and guide public opinion, a change in proprietorship or editorial policy may result in a wholesale change of the editorial staff. These circumstances, which are peculiar to journalism, must be borne in mind in framing any scheme for improvement of the conditions of working journalists., The Press Commission considered these factors in recommending that working journalists receive special treatment compared with other employees of newspaper establishments in the matter of amelioration of their conditions of service., The working journalists constitute a distinct group that can be classified apart from other employees of newspaper establishments. If the legislature enacts legislation to ameliorate their conditions of service, there is nothing discriminatory about singling them out for preferential treatment. Such classification does not fall within the prohibition of Article 14 of the Constitution, because Article 14 only forbids differential treatment among persons belonging to the same class, which is not the case here., There was no industrial dispute as such between employers and working journalists in general, although a dispute could arise between an employer in a particular newspaper establishment and its own working journalists. The impugned Act contemplated a general fixation of rates of wages of working journalists to improve their conditions of service, and the constitution of a Wage Board for this purpose was an established mode of achieving that objective. Therefore, the machinery for fixing wages for working journalists was not objectionable and did not discriminate against other employees of newspaper establishments., Even if the Act is viewed as a measure of social welfare legislation, the State may begin with a particular industry without having to enact similar legislation for all other industries. The classification can be based on geographical basis, objects, occupations, or similar criteria, provided there is a nexus between the basis of classification and the object of the Act. In the present case, both conditions of permissible classification are fulfilled: the intelligible differentia distinguishes working journalists from other newspaper employees, and this differentia has a rational relation to the object of ameliorating the conditions of service of working journalists., In Express Publication (Madurai) Ltd. v. Union of India, the Hon'ble Supreme Court of India observed that journalists are the vocal organs and necessary agencies for the exercise of the right of free speech and expression. Any legislation directed towards the amelioration of their conditions of service must necessarily affect newspaper establishments and have repercussions on the freedom of the press. The Court held that the impugned Act does not intend to take away or abridge the right of free speech and expression guaranteed under Article 19(1)(a), and therefore the question of violation of that right does not arise., The Supreme Court, in the Express Newspaper case, noted that while framing the scheme, various circumstances peculiar to the press had to be taken into consideration. These considerations weighed with the Press Commission in recommending special treatment for working journalists. The Court affirmed that working journalists constitute a separate class and may be classified for preferential treatment without violating Article 14. The classification was based on an intelligible differentia that has a rational relation to the object of ameliorating their conditions of service., The press industry was held to be a class by itself. The definition of 'newspaper employee' includes all employees who are employed to do any work in, or in relation to, any newspaper establishment. The decision in the Express Newspaper case answers the contention that the press industry has been singled out against the petitioners. The Court also held that social welfare legislation may begin somewhere without extending similar benefits to other industries, and the absence of such extension does not invalidate the benefits given to employees of the press industry., In ABP Private Limited and Others v. Union of India & Others, the Hon'ble Supreme Court of India considered a challenge under Article 32 of the Constitution by newspaper establishments seeking a declaration that the Working Journalists Act is ultra vires and infringes fundamental rights under Articles 14, 19(1)(a) and 19(1)(g). The challenge was primarily to the Wage Board constituted under the Working Journalists Act. The Court rejected the challenge, pointing out the special status of working journalists., In Indian Express Newspaper (Bombay) Ltd. v. K. Karunakaran, the learned Single Judge of the Delhi High Court examined whether the City Civil Court had jurisdiction to entertain a suit for a declaration that the newspaper establishment was bound to recognise the plaintiff as a chief sub‑editor. The Judge noted Section 3 of the Working Journalists Act and held that the plaintiff, a sub‑editor, was a working journalist within the definition of Section 2(f) and therefore a newspaper employee within the meaning of Section 2(c). The Judge observed that the Working Journalists Act is a complete code regulating conditions of service, including provisions on retrenchment compensation, gratuity, working hours, constitution of a Wage Board, fixation of wages, and powers and procedure of the Board, which are analogous to those of an Industrial Tribunal under the Industrial Disputes Act., The journalists contended that the Working Journalists Act is not a complete code and merely makes provisions for other Acts such as the Industrial Disputes Act, lacking an independent machinery for wage implementation. The Court referred to the Supreme Court decision in Awaz Prakashan (P) Ltd. v. Pramod Kumar Pujari, which affirmed the special machinery under the Working Journalists Act and the special status of working journalists., The Division Bench of the Orissa High Court, in Pratap Chandra Mohanty v. General Manager, United News of India, considered whether the provisions of the Industrial Disputes Act would apply to newspaper employees other than working journalists. The Bench held that Section 3(1) of the Working Journalists Act makes the Industrial Disputes Act applicable to working journalists, but this does not preclude its application to other newspaper employees who satisfy the definition of 'workman' under the Industrial Disputes Act. The Court emphasized that a working journalist, as defined in Section 2(f), may not be a workman under the Industrial Disputes Act, yet the legislature intended to extend the benefits of that Act to working journalists., The learned Single Judge of the Delhi High Court, in The Management of M/s. Statesman Ltd. v. Lieutenant Governor, Delhi, examined a writ petition challenging the award of an Industrial Tribunal on a complaint by working journalists. The Judge observed that the issue was not whether working journalists are workmen, but whether they rank with workmen for the benefits of the Industrial Disputes Act. The Court noted that the Working Journalists (Industrial Disputes) Act of 1955 was enacted to extend the provisions of the Industrial Disputes Act to working journalists, defining them as persons employed in any establishment for the production or publication of a newspaper or in any news agency. Consequently, working journalists are fully entitled to the benefits of the Industrial Disputes Act without being labelled as workmen., In H.R. Adyanthaya and Others v. Sandoz (India) Pvt. Ltd. and Others, the Constitution Bench examined whether sales representatives were workmen and referred to the status of working journalists. The Bench observed that Section 3 of the Working Journalists Act applies the Industrial Disputes Act to working journalists, effectively making them workmen for the purposes of that Act, while emphasizing that this does not alter their substantive status., The legislative background and judicial pronouncements show that the Working Journalists Act confers a special status on working journalists, and disputes involving them must be settled according to the provisions of the Industrial Disputes Act. The Journalists attempted to connect the Maharashtra Regional and Town Urban and Public Utility Act (MRTU & PULP Act) by arguing that its definition of 'employee' includes workmen and therefore should include working journalists. However, the definition of 'employee' under the MRTU & PULP Act was amended in 1999 to specifically include sales promotion employees, with no reference to working journalists. Extending the legal fiction beyond the legislature's explicit ambit would improperly broaden the rights of working journalists.
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The arguments of the Journalists are based on the consequences if fiction is not extending it to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. What has to be kept in mind is the purpose of creating the fiction and the scope and ambit of the Working Journalists Act and the Industrial Disputes Act. As we already have discussed, the purpose and find that the scope of the legal fiction is limited., The Journalists also sought to contend that since the Working Journalists Act is a piece of beneficial legislation and two interpretations are possible, the one favouring the employees must be preferred. Reliance is placed on the decision of All India Reporter Karmachari Sangh and Ors. v. All India Reporter Limited and Ors., which arose from the application of this Act. The question before the Honourable Supreme Court of India in this case was the definition of a newspaper under the Working Journalists Act and whether it would include law reports. The High Court of India had held that to fall within the definition of newspaper, what is reported must be news. The Honourable Supreme Court of India in its judgment in appeal from the decision observed, referring to the definition of news, that the law reports published news about the judicial decisions. It is in this context that the observations were made that when there are two interpretations possible, one beneficial should be extended to the employees. The case at hand is of legal fiction which the Journalists are attempting to extend beyond its intended meaning. Therefore, there is no question of invoking the principle regarding choosing the interpretation which is more beneficial., The reliance of the Journalists on the decisions of M/s. Girdharilal & Sons v. Balbir Nath Mathur & Ors. and Crop Care Ltd. v. Competition Commissioner of India & Anr. that the intention of the legislature must be seen and absurdity would be avoided, is in fact, against the working journalists. This is so because according to us, the intention of the legislature is to keep the legal fiction restricted., Though various shades of the arguments have been advanced by working journalists based on the consequences, assumptions, and legal fictions, they must be considered within the ambit of the statutory provisions. The position is established by the judicial pronouncements that the working journalists form a class by themselves. The special status of the working journalists does not change to bypass this established position. Therefore, the Working Journalists Act is intended as a package deal for working journalists with special rights and privileges, and the reading of Section 3 of the Working Journalists Act would show that their status does not undergo a change. The working journalists are advancing various arguments to expand their rights while retaining their special privileges intact by interpretive process, which is rightly objected to by the Management., The next limb of arguments of the Journalists is based on the amendment as per Section 20(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act and the Schedule appended to the said Act., Under Section 20 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, the rights of the recognised union have been provided for, and Section 20(2) regulates the contingency where there is a recognised union for any undertaking. Section 20(2) states that where there is a recognised union for any undertaking that union alone shall have the right to appoint its nominees to represent workmen on the Works Committee constituted under Section 3 of the Industrial Disputes Act. Section 20(b) states that no employee shall be allowed to appear or act or be represented in certain proceedings under the Industrial Disputes Act except through the recognised union; and the decision or order made in such proceeding shall be binding on all the employees in such undertaking. It is then stated that the provisions of the Industrial Disputes Act shall stand amended in the manner specified in Schedule I., Schedule I as referred to under Section 20(2) reads as follows: 1. In Section 3, to sub‑section (1), the following proviso shall be added: “Provided that, where there is a recognised union for any undertaking under any law for the time being in force, then the recognised union shall appoint its nominees to represent the workmen who are engaged in such undertaking.” Explanation – In the proviso to sub‑section (1), the expression “undertaking” includes an establishment. 2. In Section 10, in sub‑section (2), after ‘appropriate Government’ insert “on such application being made by a union recognised for any undertaking under any law for the time being in force, and in any other case.” 3. In Section 10‑A (a) in sub‑section (1) after the words “workmen” insert “and where under any law for the time being in force, there is a recognised union in respect of any undertaking, the employer and the recognised union”; (b) to sub‑section (3‑A), the following proviso shall be added: “Provided that, nothing in this subsection shall apply where a dispute has been referred to arbitration in pursuance of an agreement between the employer and the recognised union under sub‑section (1) of this section;” (c) in sub‑section (4‑A), after the words “sub‑section (3‑A)” insert “or where there is a recognised union for any undertaking under any law for the time being in force and an industrial dispute has been referred to arbitration”. 4. In Section 18, (a) to sub‑section (1) the following proviso shall be added: “Provided that, where there is a recognised union for any undertaking under any law for the time being in force, then such agreement (not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee) shall be arrived at between the employer and the recognised union only; and such agreement shall be binding on all persons referred to in clause (c) and clauses (d) of sub‑section (3) of this section.” (b) in sub‑section (3), after the words “Section 10A” insert “or an arbitration award in a case where there is a recognised union for any undertaking under any law for the time being in force”. 5. In Section 19, (a) after sub‑section (2) the following sub‑section shall be added: “(2A) Notwithstanding anything contained in this section, where a union has been recognised under any law for the time being in force, or where any other union is recognised in its place under such law, then notwithstanding anything contained in sub‑section (2), it shall be lawful for any such recognised union to terminate the settlement after giving two months’ written notice to the employer in that behalf.” (b) to sub‑section (7) the following shall be added: “and where there is a recognised union for any undertaking under any law for the time being in force, by such recognised union.” 6. In Section 36, to sub‑section (1) the following shall be added: “Provided that, where there is a recognised union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any such proceeding (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration) except by such recognised union.”, The Journalists advanced elaborate arguments on the effect of this amendment and how, if the interpretation of the Management is accepted, the amendment to the Industrial Disputes Act would be nullified. The Journalists argue that these amendments to the Industrial Disputes Act are also for the working journalists in the collective bargaining and recognised unions as sole bargaining agents aligning them with the procedures outlined in the Industrial Disputes Act. They argue that the recognition of unions is crucial under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, since it gives exclusive power to recognised unions and ensures that the rights and conditions of working journalists are protected, such as the mandatory fourteen‑day notice before lockouts or strikes. It is argued that it would be illogical to assume that the legislature did not intend for this notice to apply to working journalists., It is contended by the Journalists that if the Industrial Disputes Act is made applicable to the working journalists only for a forum provided by the legislation, then even a changed forum should be made available. It is stated that the changed forum to approach the Court also gives right of recognised union for collective bargaining. The working journalists can represent the works committee, and they have the right to make a settlement with the management, and all these rights would be taken away. The working journalists seek to demonstrate from a chart which rights would be lost., The Management contends that there is no merit in the argument of the Journalists based on the amendment to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. They contend that as regards collective bargaining, the Working Journalists Act is a code by itself. Recognised unions are not necessary for the working journalists since their benefits are already outlined in the Act, distinguishing them from workmen who may require unions to raise demands. The Management contends that there are no such restrictions on the workmen within the meaning of Section 2(s) of the Industrial Disputes Act. It is further submitted that the nature of work as outlined in the definition of working journalist arises out of the classification of working journalists into various categories as made. It is submitted that the issue of the classification of working journalists and their wage structure is covered by the provisions of the Working Journalists Act of 1955, across the country. Working journalists enjoy certain benefits and it is submitted that if the working journalist were to be read with the Industrial Disputes Act as merely a workman within the meaning of Section 2(s) of the Industrial Disputes Act, then it would bring about an unharmonious reading of the Working Journalists Act and the Industrial Disputes Act and collective bargaining with working journalists and workmen at the same time in a newspaper establishment may disrupt industrial peace., We find that adequate provisions akin to collective bargaining are provided to the working journalists. Under Section 9, the Working Journalists Act makes provisions for wage boards. The composition of the Wage Board is three representatives of the working journalist and four independent persons. Therefore, the representatives of the establishment and the working journalists are in the same position with independent persons, one of whom could be a judge of the High Court of India or the Supreme Court of India. Therefore, for wages, machinery like collective bargaining is already provided to the working journalists., Apart from wages, the Rules framed under the Working Journalists Act titled Working Journalists (Conditions of Service) and Miscellaneous Provisions Rules, 1957 also need to be noted, which cover various aspects. Chapter II deals with the payment of gratuity, nominations, and deduction from gratuity. Under Chapter III, hours of work are specified. Rule 7 specifies special provisions regarding editors. Under Rule 8, normal working days are provided, stating that the number of hours which shall constitute a normal working day for a working journalist, exclusive of the time for meals, shall not exceed six hours per day in the case of a day shift and five and a half hours per day in the case of a night shift and no working journalist shall ordinarily be required or allowed to work for longer than the number of hours constituting a normal working day. Rule 9 specifies the interval for rest, stating that subject to such agreement as may be arrived at between a newspaper establishment and working journalists employed in that establishment, the periods of work for working journalists shall be so fixed that no working journalist shall work for more than four hours in the case of day shift and three hours in the case of night shift before he has an interval of rest, in the case of day shift for one hour, and in the case of night shift for half an hour., Under Rule 10 of the Rules of 1957, compensation for overtime work is provided stating that when a working journalist works for more than six hours on any day in the case of a day shift and more than five and a half hours in the case of a night shift, he shall, in respect of that overtime work, be compensated in the form of hours of rest equal in number to the hours for which he has worked overtime. Rule 11 provides for conditions governing night shifts, stating that no working journalist shall be employed on a night shift continuously for more than one week at a time or for more than one week in any period of fourteen days, provided that, subject to the previous approval of the State Labour Commissioner or any authority appointed by the State Government in this behalf, the limit prescribed in this Rule may be exceeded where special circumstances so require. Under Rule 12, an interval preceding a change of shift is also provided stating that in the case of a change of shift from night shift to day shift or vice versa, there shall be an interval of not less than twenty‑four consecutive hours between the two shifts and in the case of a change from one day shift to another day shift or from one night shift to another night shift there shall be an interval of not less than twelve consecutive hours, provided that no such interval may be allowed if such interval either coincides with or falls within the interval enjoyed by a working journalist under sub‑section (2) of Section 6 of the Act., Chapter IV of the Rules of 1957 specifies holidays available. It states that the working journalist shall be entitled to ten holidays in a calendar year. Compensatory holidays are provided to specify the details thereof. Wages for holidays are provided. Wages for a weekly day of rest are also provided. Chapter V deals with the various types of leaves and the procedure. This includes earned leave, wages during earned leave, cash compensation for earned leave not availed of, medical, maternity, quarantine, extraordinary, study, and casual leave., The Rules of 1957 read with the Working Journalists Act thus include exhaustive provisions exclusively governing the working journalists. There is therefore already an elaborate mechanism governing the services of the working journalists., Journalists contend that as per the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act the amendment to the Industrial Disputes Act confers rights on the working journalist regarding collective bargaining and since the working journalist falls under the definition of workmen under the Industrial Disputes Act, it could never have been the intention of the legislature that these rights are to be taken away. We find no merit in this contention. In an establishment generally there would be workmen and non‑workmen. Collective bargaining by a union can bind the workmen/employees, not the others. Therefore, the Management rightly points out that employees/workmen, excluding the working journalists, are free to negotiate and represent themselves. Once the working journalists are placed in a different class, they cannot make grievances regarding the same. The Courts in the above cited decisions have recognised this separate status and have confirmed their special benefits on that basis. Merely because working journalists would not form a trade union under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act does not mean that something not contemplated in the statute should be incorporated into it. On the other hand, if the argument of the working journalists is accepted, it would bring an anomalous situation. For instance, if a settlement takes place between management and working journalists as per the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act then all other employees/workmen from the establishment could demand the same benefits as are available to the working journalists under the Working Journalists Act proceeding on the basis that there is no difference between them and working journalists all being workmen. This could lead to breach of industrial peace. Therefore, harmoniously read, the legislative intent is clear that as far as working journalists are concerned, their rights and remedies remain the same, and the amendment to the Industrial Disputes Act under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act provides additional benefits for the other employees/workmen., Various safeguards are available to working journalists under the Working Journalists Act and the Rules of 1957, and all these rights are statutorily guaranteed. The working journalists enjoy a specific status under the Working Journalists Act and the Industrial Disputes Act, which, as observed earlier, is a package deal. The contention of the working journalists based on the consequences of the amendment to the Industrial Disputes Act as per the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act is an argument in reverse. The primary position is that the working journalists remain a special class governed by the service conditions prescribed under the Working Journalists Act and the Rules of 1957. Since the Working Journalists Act does not provide for machinery for dispute resolution, the same can be availed of under the Industrial Disputes Act. The purpose of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act is to provide a framework for regulating the rights and obligations of a specific class. The Act creates rights and liabilities and has provisions for enforcing such rights and obligations. This Act ensures that the recognition granted to unions under the Act is not defeated. The amendments made to the Industrial Disputes Act are in furtherance of the provisions of the Act but not contrary to it., Though arguments based on the principles of legislation by reference and by incorporation are sought to be advanced by the Journalists, the basic premise is that the special status of the working journalists and their package does not change. If there is no difference between the working journalist and workmen then it cannot be that the working journalist retain special privileges while they are denied to other workmen including non‑working journalists. By advancing various technical arguments, what the Journalists are attempting to do is to acquire rights available to other workmen on the basis they are similarly situated without relinquishing their special privilege, which are not available to other workmen. The scheme of the governing legislations does not permit the same., Journalists in the alternative contended that the definition of workman under Section 2(s) of the Industrial Disputes Act depends on the primary nature of the work and that working journalists, with varying roles across establishments can fall within the definition. The complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act is maintainable as long as the working journalist claims to be an employee within the Act. The complaint filed under the Act cannot be dismissed at the threshold as the complainant can demonstrate that the complainant falls within the definition of a workman under Section 2(s) of the Industrial Disputes Act, and the inquiry will have to be done on a case‑to‑case basis. It is argued that the definition of workmen as earlier stood under Section 2(s) of the Industrial Disputes Act only included unskilled and manual clerical work, thereafter, the definition has been amended to include persons who do unskilled, skilled, technical, operational, and clerical work. By further amendment, the definition of workmen was expanded. The Journalist also contended that in the case of Burma Shell Oil Storage and Distribution Co. of India Ltd. v. The Management Staff Association the Supreme Court has held that the Court has to ascertain the main work of the one claiming to be a workman, and this is a matter of evidence; therefore, the complaint cannot be dismissed at the threshold. Reliance is also placed on the decision in the case of Wang v. Chinese Daily News to contend that there could be a difference between the work of a journalist in a smaller establishment and that of a larger one and there can also be a difference between creative works. The Journalists thus contend that it should be kept open to the individual working journalist to prove that the complainant falls within the definition of Section 2(s) of the Industrial Disputes Act to be determined by pleadings as long as the pleadings are that the complainant is an employee within the meaning of Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act., We find no merit in the above contention raised by the Journalists. We have concluded that the status of working journalists does not undergo a change and referring to their special status, a limited legal fiction is created. Working journalists do not fall within the definition of an employee under Section 3(5) of the Industrial Disputes Act. That being the position, the complaint filed by the working journalists in the forum provided under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act on the premise of being an employee under Section 3(5) would not be maintainable because, as a special class the working journalists are not employees as defined under the Act. No question thus would arise of leading evidence as to how an individual working journalist would fall within the definition of employee as defined., In essence, shorn of technicalities, working journalists constitute a distinct class with unique privileges and protections in their employment. This recognition of special status, distinct from other workmen, has been upheld based on the premise that working journalists form a separate category. The framework provided by the Working Journalists Act and Rules under it, along with the recourse offered to journalists under the Industrial Disputes Act, forms a specific arrangement. While the Working Journalists Act establishes a legal fiction equating working journalists with workmen, this fiction is limited. The status of working journalists remains distinct from that of regular workmen due to the retention of their special privileges. The contention of working journalists seeking to assert themselves as employees, thereby enabling them to file complaints of unfair labour practices and avail of collective bargaining, aims at expanding their rights while preserving their special privileges. However, this course of action will contradict the combined reading of the governing statutes. Hence, the view taken by Justice Baldota in Shashikaran Shrivastava, which was the only definitive view and binding on the referral judge, correctly holds that working journalists cannot be considered employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act., As a result of the above discussion, we answer the Reference as follows., The working journalists under Section 3 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 are not included in the definition of “employee” under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Thus, a complaint of unfair labour practice filed by a working journalist under the Act is not maintainable. The view taken by Justice R.P. Sondurbaldota in Shashikaran Shrivastava lays down the correct position of law., The writ petitions be placed before the learned Single Judge for passing appropriate orders.
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id_1426
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Supreme Court Criminal Appeal No. 78/1985 Hari Narayan son of Rameshwar Prasad, Resident of Village Antala Tehsil Bairath District Jaipur (at present L.D.C. under Suspension in Deputy Transfer Officer Sikar) Appellant versus State of Rajasthan Respondent. For Appellant: Mr. Mahesh Gupta, Advocate; Ms. Priyanshi Katta, Advocate. For Respondent: Mr. Chandragupt Chopra, Public Prosecutor., Appellant has filed this appeal challenging the judgment and order dated 28 January 1985 / 2 February 1985 passed by the learned Special Judge, Additional Chief District Court, Jaipur in Criminal Case No. 15/1980, whereby appellant was convicted and sentenced for offences punishable under Section 161 of the Indian Penal Code and Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 as follows: Under Section 161 of the Indian Penal Code – three months simple imprisonment. Under Section 5(2) of the Prevention of Corruption Act, 1947 – three months simple imprisonment with a fine of Rs.500, and in default of payment of fine to undergo one month simple imprisonment. Both sentences were ordered to run concurrently., As per the prosecution, Sultanaram, resident of Dhani Rajwali Tehsil Neem Ka Thana, submitted a written report to the Deputy Superintendent of Police, Additional Chief District, Sikar alleging that he had purchased the tractor HMT Jetter in his father's name on 2 May 1979 and he wanted to change the registration of the tractor. He submitted the documents before the Deputy Transfer Officer, who wrote an order and sent it to Hari Narayan's clerk. When he went to Hari Narayan, he was told that there was no work to be done by him and that the Deputy Transfer Officer would handle it. He then approached Moolchand, another Deputy Transfer Officer, who said that Hari Narayan would do it. Upon returning to Hari Narayan, the appellant demanded that the complainant pay Rs.150 (Rs.50 for himself, Rs.50 for Ashok Jain and Rs.50 for Moolchand). The complainant refused to give the bribe and therefore complained before the Additional Chief District., After completion of trap proceedings and investigation, a charge-sheet was filed against the appellant. After hearing the arguments, charges were framed against the appellant under Section 161 of the Indian Penal Code and Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The accused appellant denied the charges levelled against him and claimed trial. To prove its case, the prosecution examined twelve witnesses. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973. He prayed that he was innocent and had been falsely implicated in this case. The appellant examined five witnesses in his defence., Learned counsel for the appellant submits that the learned Special Judge, Additional Chief District Court, Jaipur wrongly convicted the appellant under Section 161 of the Indian Penal Code and Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. He also submits that the trial court had not read the prosecution evidence in the correct perspective and that the prosecution witnesses were highly interested, rendering their evidence unreliable. He further submits that the prosecution failed to prove the demand and acceptance of the bribe because the evidence of the complainant Sultanaram was contradictory and he had also submitted an affidavit. He contends that the investigating officer wrongly investigated the case and omitted Ashok Jain and Moolchand. He also submits that the trial court wrongly framed the charges because, as per the prosecution averments, the appellant had taken Rs.50 for Ashok Jain and Rs.50 for Moolchand, but the charges did not mention these facts. He asserts that there is no evidence that the appellant ever demanded Rs. from Sultanaram and therefore the appellant should be acquitted. Learned counsel for the appellant has placed reliance upon the judgment passed by the Honourable Supreme Court of India in the case of P. Satyanarayana Murthy versus District Inspector of Police, State of Andhra Pradesh & Another reported in 2015 10 Supreme Court Cases., Learned Public Prosecutor has opposed the arguments advanced by the appellant's counsel and submitted that there is no illegality or infirmity in the judgment and order of the learned Special Judge, Additional Chief District Court, Jaipur. Hence, the appeal is devoid of merit and liable to be dismissed., I have considered the arguments advanced by the appellant's counsel as well as the Learned Public Prosecutor. As per the prosecution, Rs.150 were given by Sultanaram to the appellant but the prosecution failed to prove the demand and acceptance of the bribe. Only recovery of money could not be a ground to consider it as a bribe. The investigating officer deliberately omitted Ashok Jain and Moolchand. The learned Special Judge, Additional Chief District Court, Jaipur, in its order mentioned these lacunae. In my considered opinion, the learned Special Judge, Additional Chief District Court, Jaipur wrongly convicted the appellant under Section 161 of the Indian Penal Code and Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. Hence, the judgment and order of the learned Special Judge, Additional Chief District Court, Jaipur deserve to be set aside. Accordingly, this appeal is allowed. The impugned judgment and order passed by the learned Special Judge, Additional Chief District Court, Jaipur dated 28 January 1985 / 2 February 1985 is set aside. The appellant is acquitted of the charges framed against him. In view of the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the appellant, Hari Narayan son of Rameshwar Prasad, is directed to furnish a personal bond in the sum of Rs.25,000 and a surety in the like amount before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with the stipulation that in the event of a Special Leave Petition being filed against this judgment or on grant of leave, the appellant shall, on receipt of notice thereof, appear before the Honourable Supreme Court of India.
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id_1428
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Association of Indian Schools and others, Petitioners, versus the State of Maharashtra and others, Respondents. The petitioners include Arvind Rangnath Tiwari, Forum for Fairness in Education (NGO) represented by Jayant Babulal Jain, Global Education Foundation, Kasegaon Education Society, Sant Dnyaneshwar Mauli Sanstha, Unaided School Forum, Human Social Care Foundation, Maharashtra Samaj Ghatkopar, Aggrieved Parents Group of M.S.G.S. Universal School, Ghatkopar, and others. The respondents include the State of Maharashtra and its officials. Senior advocates appearing for the petitioners include Mr. Pratik Seksaria and wife, Mr. Nivit Srivastava, Ms. Sneha Patil, Mr. Nishant Chothani, Ms. Radhika Kulkarni, Ms. Yamini Maheshwari, and Maniar Srivastava Associates. Counsel for the State include Mr. A. V. Anturkar, Special Counsel with Mr. Prathamesh Bhargune and Mr. Yatin Malvankar, P. P. Kakade, Government Pleader, Mr. B. V. Samant, Additional Government Pleader for State, and others., These are a batch of petitions which primarily assail the Government Resolution dated 8 May 2020 directing the schools in Maharashtra, inter alia, not to increase the fees for the academic year 2020‑2021, in view of the pandemic. The petitions also assail the notices issued by the Education Officers to the educational institutions consequent to the impugned Government Resolution. The issue raised in the petitions revolves around the applicability of the provisions of the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 (the 2011 Act) and the amended provisions thereof, namely Sections 6(1A), 6(1B) and 6(1C) as brought about by the Maharashtra Educational Institutions (Regulation of Fee) (Amendment) Act, 2018 (the Amendment Act, 2018) with effect from 26 August 2019., We had taken up these petitions for final hearing. In the midst of the hearing, on 14 October 2020, we passed an order having noticed that certain basic facts were lacking, which were required for a just and proper decision on the issues raised in these writ petitions. We accordingly suggested to the petitioners to provide information to be placed on record in the following format: Name of the School; Date of starting classes after recognition; Increase proposed for academic year (Yes/No); Whether Section was invoked; If Section whether in one part or two parts; Date of commencement of process under Section 6(1A) or date of last increase; Date of declaration. Such information was accordingly placed on record on behalf of the petitioners., On 26 February 2021, when we commenced hearing of these petitions, Mr. Anturkar, learned Senior Counsel for the State, made two‑fold submissions: firstly, he reiterated the stand taken by the State Government that the Government Resolution dated 8 May 2020 prohibiting increase of fees for the academic year 2020‑2021 would be applicable prospectively; secondly, he drew our attention to the provisions of Section 10 of the Amendment Act, 2018. Mr. Anturkar submitted that the amendments brought about by the Amendment Act, 2018 by, inter alia, incorporating Sections 6(1A), 6(1B) and 6(1C) are applicable only in the manner as provided in Section 10 of the Amendment Act, 2018, and for the academic year as specifically provided in Section 10., Hearing such submissions, it was urged on behalf of the petitioners that if the Government Resolution dated 8 May 2020 has no retrospective application, that would take care of one part of their grievances qua such resolution. It was also urged that all the educational institutions have determined their fee structure for the academic year 2020‑2021 in accordance with the amended provisions of the 2011 Act, and such fee structure has also been accepted and implemented before the Government Resolution dated 8 May 2020 saw the light of the day., We have heard the parties further today. It has been disputed on behalf of the State that all the educational institutions have determined their fee structure in accordance with the provisions of the 2011 Act, as amended., On a perusal of Section 10 of the Amendment Act, 2018, it is likely that the increase of fees undertaken by certain institutions may fall within the ambit of the nature of the saving as provided by Section 10 of the Amendment Act, 2018 or it can be a situation even otherwise., Considering the above conspectus and more particularly the information placed on record by the institutions in pursuance of our order dated 14 October 2020, we are of the opinion that the interest of justice would be sufficiently served if the State considers the issues in regard to each of such educational institutions on a case‑to‑case basis, in the event any application or complaint is received by the State against any institution for violation of any of the provisions of the 2011 Act read with the provisions of the Amendment Act, 2018 or the Government Resolution dated 8 May 2020, or even suo motu upon receipt of any information in that behalf., Having given our due consideration to the complexion of the issues arising in these proceedings, we are of the opinion that it may not be necessary for us to adjudicate these petitions on the prayers as made by the petitioners; suffice it to observe that these petitions can be disposed of leaving it open to the education authorities to decide any issue qua any of the institutions as may arise under the 2011 Act read with the Amendment Act, 2018 and the impugned Government Resolution dated 8 May 2020 in regard to the fees determined by any such institution, in the manner we propose to direct. Accordingly, we dispose of these petitions by the following order: (i) The Government Resolution dated 8 May 2020 is only prospective in nature and cannot apply to schools which have already fixed or declared their fee for the academic year 2020‑2021 and/or where such fees are duly accepted in terms of the 2011 Act as amended and/or has been acted upon before the Resolution dated 8 May 2020. (ii) The question of validity of the Government Resolution dated 8 May 2020 as raised in these petitions is not decided and is expressly kept open. All the rights and contentions of the parties are expressly kept open and are not adjudicated upon by this order. (iii) The Government Resolution dated 8 May 2020 does not and cannot be construed as a direction for refund of any fees collected for 2020‑2021, subject to the following clause. (iv) The State Government may, if so permissible under the 2011 Act, on a complaint made to it or suo motu upon receipt of information that a particular school has violated the provision of the 2011 Act and the fees for the academic year 2020‑2021 are not determined by the school in accordance with the provision of the 2011 Act as amended by the 2018 Act, take such recourse in accordance with law. It is expressly clarified that all rights and contentions in this regard, especially whether the State has the power to conduct such inquiry, are kept open. (v) In the event of a complaint as aforesaid being received by the State or suo motu on receipt of information in relation to a particular educational institution, then such institution or the management shall not debar any student from attending either online classes or physical classes or attending the examinations on account of non‑payment of only the increased component of fees in respect of the academic year 2020‑2021 and the result shall not be withheld for non‑payment of the increased component. This protection shall continue should an adverse order be passed against any educational institution and till such time such adverse order is set aside. It is expressly clarified that what has been stated above does not entitle any parent to claim that the fees are not payable. It is further clarified that the above protection is only granted in the peculiar circumstances existing on account of the pandemic and therefore only for the academic year 2020‑2021 and does not prevent the educational institutions from taking such actions as may be permissible in law against the students who are in arrears or have defaulted in payment of fees for the earlier academic years or subsequent academic years. (vi) Any such complaint or suo motu inquiry, if commenced, shall be decided as early as possible and after giving the concerned educational institution an opportunity of being heard. Pending conclusion of such inquiry, if any, no action shall be taken against such institution and in the event of any adverse order being passed, the same shall not be implemented for a period of four weeks thereafter. (vii) It is also clarified that the protection to parents in respect of the academic year 2020‑2021 shall apply only in the event there is an increase in fees fixed in the academic year 2020‑2021 from the fees fixed in the academic year 2019‑2020 and even in such a case only in respect of the increased component of fees and not the entire fees. (viii) Any actions initiated or communications issued against any of the petitioner schools and/or their members on the basis of the Government Resolution dated 8 May 2020 shall stand withdrawn. But this shall not debar the State to proceed in terms of clause (iv) of paragraph 8 supra. (ix) This order is without prejudice to the rights and contentions of the petitioners in pending writ petitions with regard to the constitutionality of provisions of the 2011 Act and the Rules framed thereunder., The writ petitions and the interim applications are accordingly disposed of with no order as to costs. In view of the above order of disposal, the interim stay does not survive and stands vacated.
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id_1429
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The present criminal appeals arise out of the common Judgment & Order dated 13th December 2021 passed by the Aurangabad Bench of the Bombay High Court in Confirmation Case No. 1 of 2019 and Criminal Appeal Nos. 808 and 810 of 2019 whereby the Bombay High Court confirmed the death penalty and life imprisonment imposed upon Accused No. 1 Digambar (Appellant in Criminal Appeal Nos. 221-222/2022) and Accused No. 2 Mohan (Appellant in Criminal Appeal No. 280/2023) respectively, for conviction for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as Indian Penal Code) read with Section 34 Indian Penal Code., Pooja (deceased) was married to Jethiba Hashanna Varshewar on 10 June 2017. Pooja had been having a love affair with Govind (deceased) for the past five years. The appellant Accused Digambar is the brother of Pooja. On 22 July 2017, Pooja left her matrimonial home without informing anyone, and her husband lodged a missing report at Bhokar Police Station on the same day. Accused Digambar, aware of the love affair, was suspicious that Pooja might have gone with Govind. On 22 July 2017, he called Govind, who informed him that Pooja was not with him and told him to do whatever he wanted. Digambar searched for Pooja at various places but could not find her. He called Govind several times; each time Govind said Pooja was not with him. At night, Govind’s phone was switched off, which Digambar took as an indication that Pooja was with him., On 23 July 2017, Accused Digambar, together with co-accused Mohan, went to the house of Govind’s sister, where they found Govind and Pooja. Digambar assured Pooja that he would arrange her marriage to Govind since they had been in love for five years. Pooja was convinced by Digambar’s assurance but refused to leave without Govind. Consequently, Digambar, Mohan, Pooja and Govind left that place on a motorcycle., Near the village Beltaroda, Digambar asked Pooja and Govind to wait while he visited his aunt’s house and retrieved a sickle, which he concealed near his waist. He then returned to the spot, took the duo with him to his village, and stopped the motorcycle near a canal. He tried to convince them, but they were not ready to listen. At that time Digambar took out the sickle and assaulted Govind’s throat. When Pooja tried to intervene, he removed the handle of the sickle and thrust the backside of the sickle into Pooja’s neck. These attacks resulted in the deaths of both Govind and Pooja., Digambar then rushed to Bhokar Police Station and lodged FIR No. 404/2007 stating that he had committed the aforesaid crime., Pursuant to the investigation, a charge sheet was filed and trial was conducted by the Court of Additional Sessions Judge at Bhokar, Nanded. The Court, vide its judgment dated 17 July 2019, convicted Accused Digambar for offences punishable under Sections 302, 201 and 120-B of the Indian Penal Code and sentenced him to death, while Accused Mohan was convicted for offences punishable under Sections 302, 201, 34 and 120-B of the Indian Penal Code and sentenced to life imprisonment., Accused Digambar filed Criminal Appeal No. 810/2019 and Accused Mohan filed Criminal Appeal No. 808/2019 before the Bombay High Court. Confirmation Case No. 1/2019 was also lodged for confirmation of the death sentence imposed upon Accused Digambar. By the impugned judgment, the Bombay High Court confirmed the death sentence imposed upon Accused Digambar and dismissed the criminal appeals., We have heard Shri Sudhanshu S. Choudhari and Shri Subodh S. Patil, learned counsel appearing on behalf of the appellants, and Shri Chinmoy Khaladkar, learned counsel appearing on behalf of the State., Shri Choudhari submits that both the Court of Additional Sessions Judge and the Bombay High Court have grossly erred in convicting the appellant. He submits that the confessional statement made by the appellant Digambar to the police could not be relied upon for sustaining the conviction. He submits that apart from the extra‑judicial confession, there is absolutely no evidence to convict the appellants. He further submits that it is improbable that both the appellants and the two deceased travelled on one motorcycle. Learned counsel submits that only on the basis of the evidence of last seen together, without any corroboration, the conviction could not have been recorded by the Court of Additional Sessions Judge., Shri Subodh Patil also submits that the gap between the appellants being last seen in the company of the deceased and the deceased being found dead is long enough to give benefit of doubt to the appellants., Shri Choudhari submits that, in any case, the present case is not a fit case for sentencing the appellant Digambar to death. He submits that the present case cannot be considered to be a rarest of rare case so as to award death penalty., Shri Chinmoy Khaladkar, on the contrary, submits that the Court of Additional Sessions Judge as well as the Bombay High Court have rightly found that the appellants had committed the ghastly murder and awarded a capital sentence. He submits that the present case is nothing but a case of honour killing. It is submitted that since the accused were opposed to the deceased Pooja having an affair with deceased Govind, the accused assaulted and killed the deceased. Learned counsel submits that applying both the crime and the criminal tests, interference with the capital punishment would not be warranted. He submits that the appellant Digambar is not an illiterate person; he is an educated person and was also using a smartphone. It is submitted that the conduct of an educated person committing such a heinous crime cannot be pardoned. He therefore prays for dismissal of the appeals., With the assistance of the learned counsel, we have scrutinized the material evidence on record., The prosecution case mainly rests on the circumstances of the accused being lastly seen in the company of the deceased, and the death of the deceased occurring shortly thereafter., Insofar as the last seen theory is concerned, the prosecution mainly relies on the evidence of PW 5 Shankar and PW 6 Santosh., PW 5 Shankar is brother‑in‑law of deceased Govind. He stated in his evidence that on 22 July 2017 at about 6.00 a.m., Govind told him that Pooja called him on mobile phone. Pooja told Govind that she ran away to Nanded from her house and she called Govind at Nanded. He stated that, at about 6.00 p.m., Pooja came to his house. Thereafter, on the cell phone of his niece Punam, he contacted his brother‑in‑law Santosh (PW 6) and told him that Pooja had come to his house. He stated that he tried to convince Pooja that her conduct was not proper and that he would call her father on mobile. However, Pooja told him that he should not tell anybody because she would not leave Govind as she was in love with Govind for the last five years., PW 5 Shankar further stated that on 23 July 2017, in the morning at about 8.00 to 9.00 a.m., both the accused persons came to his house. Digambar told him that you know as to what type of person I am. When he asked about Pooja, PW 5 Shankar told him that she was in the house. PW 5 Shankar further stated that Digambar told him that he was aware that Pooja and Govind had a love affair since the last five years and, therefore, their marriage would be performed. PW 5 Shankar told Digambar that such type of marriage was not possible because Pooja is already married. On this, Digambar told him that Govind was his friend since childhood and thus he would get him married to his sister, Pooja. Pooja told Govind that Digambar is her brother and she had faith on him that he would perform her marriage with Govind. PW 5 Shankar stated that Pooja said that she will not leave Govind. At that point of time, accused No. 2 Mohan abused them. Thereafter, both the accused and both the deceased had left on the motorcycle. Accused Mohan was driving the motorcycle, Pooja and Govind were sitting in between and Digambar was sitting behind them. He stated that after some time, he and his brother‑in‑law Santosh (PW 6) proceeded towards Mudhol by autorickshaw. He called Govind on his cell phone and asked him where he was. Govind told him that he was ahead of village Beltaroda. He asked Govind to give cell phone to Digambar. However, Digambar switched off the cell phone without talking with him. He further stated that, at that time, his brother‑in‑law Santosh received a phone call from Bhokar Police Station on his mobile, who informed him that his brother Govind and Pooja were killed in between village Divshi to village Nigva., Though PW 5 Shankar was thoroughly cross‑examined, his statement, insofar as the accused and the deceased leaving together from the house of the said witness, is not shattered., Similar is the evidence of PW 6 Santosh, who is the brother of the deceased., PW 7 Sudam Kishanrao Thakre was a Police Head Constable attached to Bhokar Police Station at the relevant time. He, in his examination‑in‑chief, stated that on 23 July 2017 at 14:15 hours, he received a phone call from LPC Mundhe informing that a murder was committed of one girl and boy in between Divsi to Nigva. He went there and saw that one girl was injured and when he inquired her about the boy, she pointed her finger towards the river. He searched near the river and found one body soaked in blood. He submitted that he intended to take the injured girl to the hospital; however, she succumbed to the injuries at the spot., PW 8 Sushilkumar Pralhad Chavan was the Police Sub‑Inspector who recorded the confessional statement of the accused Digambar and conducted the investigation., Though the extra‑judicial confession of the accused Digambar cannot be taken into consideration, his conduct of going to the police station and surrendering before the police can certainly be taken into consideration in view of Section 8 of the Indian Evidence Act, 1872., It could thus be seen that the prosecution has established that the deceased and the accused persons left the house of PW 5 Shankar together and soon thereafter the death of the deceased person occurred. As such, the burden to show what happened after leaving the house would shift on the accused in view of Section 106 of the Indian Evidence Act. It is to be noted that what transpired after the accused left along with the deceased is only within the knowledge of the accused. However, the accused persons have utterly failed to discharge the said burden., In that view of the matter, we find that no interference would be warranted with the concurrent findings of the Court of Additional Sessions Judge and the Bombay High Court that the accused appellants are guilty of offence punishable under Section 302 of the Indian Penal Code., However, the only question that arises is whether the present case could be considered as one of the rarest of the rare so as to award death penalty., In the case of State of Uttar Pradesh v. Krishna Master and others, the accused had killed six persons and wiped out almost the whole family on the ground of saving the honour of the family. In the said case, though this Court found that the same would fall within the rarest of the rare case, it commuted the capital sentence to rigorous imprisonment for life and a fine of Rs.25,000 each., This Court in the case of Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka, wherein the accused had committed murder of his daughter, who was in the advanced stage of pregnancy, upheld the conviction of the accused under Section 302 of the Indian Penal Code, but commuted the sentence from capital punishment to imprisonment for life., There are certain other precedents of this Court as to which cases would fall under the category of rarest of rare case., In the case of Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, the appellant was a Senior Scientific Assistant. He wiped out his brother’s entire family. This Court found that this was done by him on account of frustration as his brother was not partitioning the alleged joint property. Though this Court held that the crime was heinous and brutal, it could not be considered to be rarest of rare case. This Court held that it is difficult to hold that the appellant is a menace to society and that there is no reason to believe that he cannot be reformed or rehabilitated., In the case of Mohinder Singh v. State of Punjab, this Court observed: It is well‑settled law that awarding of life sentence is a rule and death is an exception. The application of the rarest of rare cases principle is dependent upon and differs from case to case. However, the principles laid down and reiterated in various decisions of this Court show that in a deliberately planned crime, executed meticulously in a diabolic manner, exhibiting inhuman conduct in a ghastly manner, touching the conscience of everyone and thereby disturbing the moral fibre of the society, would call for imposition of the capital punishment in order to ensure that it acts as a deterrent. While we are convinced that the case of the prosecution based on the evidence adduced confirms the commission of offence by the appellant, however, we are of the considered opinion that still the case does not fall within the four corners of the rarest of rare cases., In the said case, the accused had committed murder of his wife and daughter. However, this Court found that the said could not be considered to be rarest of rare case., Recently, this Court, in the case of Sundar @ Sundarrajan v. State by Inspector of Police, held that the rarest of rare doctrine does not require that in such a case only death sentence has to be imposed. This Court held that, while considering whether the death sentence is to be inflicted or not, the Court will have to consider not only the grave nature of crime but also whether there was a possibility of reformation of a criminal., In the present case, both the appellants do not have any criminal antecedents. The appellant Digambar, who has been sentenced to capital punishment, was a young man of about 25 years at the time of the incident. The medical evidence would further reveal that the appellants have not acted in a brutal manner, as there is only a single injury inflicted on both the deceased. As such, we find that the present case cannot be considered to be rarest of rare., In any case, the report of the Probation Officer, Nanded as well as the Superintendent, Nashik Road Central Prison would show that the appellant Digambar has been found to be well‑behaved, helping and a person with leadership qualities. He is not a person with criminal mindset and criminal records., The report of the Probation Officer, Nanded further states: The Sarpanch and the people in the village stated that the inter‑caste marriage of deceased friend Govind and deceased sister Pooja was putting social pressure and being angry about it; the incident happened in sudden provocation by Digambar. Overall, everyone who were present during the Home Inquiry gave a good opinion about the behavior of Digambar Baburao Dasre., We are, therefore, of the considered view that the Bombay High Court as well as the Court of Additional Sessions Judge erred in holding that the present case would fall under the rarest of rare case to award capital punishment to appellant Digambar. We are, therefore, inclined to partly allow the appeals of appellant Digambar. However, insofar as the appellant Mohan, who has been awarded a sentence of life imprisonment, is concerned, we find that there is no reason to interfere., In the result, we pass the following order: (i) Criminal Appeal filed by appellant Mohan is dismissed. (ii) Criminal Appeals filed by appellant Digambar are partly allowed. Though the conviction of the appellant Digambar under Section 302 of the Indian Penal Code is maintained, the sentence of capital punishment is commuted to life imprisonment., Pending application(s), if any, shall stand disposed of.
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id_1430
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Date of Decision: 13 June 2022. Rashneet Kaur, Petitioner, versus State of Haryana and others, Respondents. Present: Mister Himanshu Sharma, Advocate for the Petitioner; Mister Parveen Kumar Aggarwal, Deputy Advocate General, Haryana; Mister Kanwaljeet Singh, Advocate for Respondents numbered 7 and 8. The present criminal writ petition under Article 226 of the Constitution of India has been filed for the issuance of a writ in the nature of habeas corpus directing the respondents to produce the minor girl child of the petitioner, aged four and a half years, daughter of Shri Avikash Turka, resident of House No. 174, Sector D, Defence Colony, Ambala Cantonment, and to hand over the custody of the minor child to the petitioner, who is the mother and natural guardian of the child., The brief facts as emanating from the petition are that the petitioner, who was born in Shahbad, District Kurukshetra, got married to Avikash Turka, son of respondents numbered 7 and 8, resident of 174, Sector D, Defence Colony, Ambala Cantonment, on 15 December 2021 at Gambhir Farms, Shahbad, District Kurukshetra. Immediately after the marriage the petitioner and Avikash Turka immigrated to Australia and, after three years of the wedlock, a female child was born on 1 August 2017 at Mater Hospital, South Brisbane, Queensland, Australia. The details of the passport of the minor child are attached as Annexure P‑3. Meanwhile, the petitioner qualified as a nurse with a Bachelor Degree in Nursing from Griffith University, Brisbane, Queensland, Australia and has been working at RSL Remembrance Village, Mount Austin, New South Wales, Australia drawing an annual salary of Australian Dollars 67,000., Though there was marital discord between the couple from time to time, the petitioner, who was residing in Australia along with her husband, travelled to India to meet her family and relatives between 29 April 2019 and 13 May 2019. Her parents‑in‑law, i.e., respondents numbered 7 and 8, also travelled to Australia for visiting the petitioner and her husband. As per the petitioner, on 23 January 2020 her in‑laws brought the minor child along with them to India and the petitioner was to visit India soon thereafter. However, due to the outbreak of COVID‑19 in 2020 followed by the unforeseen and unavoidable circumstances of overseas travel restrictions and suspension of international flights, the petitioner got stranded in Australia and could not visit India in 2020 and 2021. Thereafter the petitioner came to India on 21 March 2022 to visit family and relatives after a gap of two years and went to the matrimonial home situated at 174, Sector D, Defence Colony, Ambala Cantonment. The petitioner resided there for about a week and suffered domestic violence and maltreatment at the hands of her in‑laws, respondents numbered 7 and 8. Consequently, the petitioner decided to visit her parental home situated at Shahbad, District Kurukshetra, and after packing her bags and dressing up her daughter to visit her parental home, the respondents numbered 7 and 8 did not allow the petitioner to take her daughter with her., Due to the aforementioned incident and domestic violence, the petitioner approached Police Station Panjokhra and filed a complaint dated 28 March 2022 (Annexure P‑1) against respondents numbered 7 and 8 seeking the release of her minor daughter from the forcible custody of respondents numbered 7 and 8 and to hand over the custody to her. On 30 March 2022 respondents numbered 7 alone appeared before the police at Police Station Panjokhra and did not produce the minor child. The police again called respondents numbered 7 and 8 and the petitioner to Police Station Panjokhra on 6 April 2022 and directed them to produce the minor child. However, while respondents numbered 7 and 8 did appear on 6 April 2022, they did not produce the minor child and kept the matter pending on one pretext or another., The petitioner thereafter visited the matrimonial home again. However, the house was locked and, on inquiry, the neighbour informed her that the respondents numbered 7 and 8 had left the house and their current location was not known. Thus it was apparent that the intention of respondents numbered 7 and 8 was to harass the petitioner and keep her away from her minor daughter. Due to the foregoing facts, the present petition came to be filed before the High Court of Punjab and Haryana at Chandigarh., The matter came up for hearing on 8 April 2022 before the High Court of Punjab and Haryana at Chandigarh when notice of motion was issued for 5 May 2022. On the said date counsel appeared for respondents numbered 7 and 8 and the High Court directed the parties to appear before the Mediation and Conciliation Centre of the High Court with a further direction to respondents numbered 7 and 8 to pay a sum of Rs.25,000 to the petitioner. The matter was thereafter adjourned to 16 May 2022. On that day time was sought by respondents numbered 7 and 8 and the matter stood adjourned to 23 May 2022. Meanwhile, in the mediation proceedings a sum of Rs.25,000 was paid in cash to the petitioner but an amicable settlement could not be arrived at and, therefore, the matter was sent back to the High Court of Punjab and Haryana at Chandigarh. On 26 May 2022 counsel for respondents numbered 7 and 8 was asked to bring the minor child to the court on the next date, i.e., 27 May 2022. However, the child was not brought to the High Court., Meanwhile, a reply dated 28 April 2022 was submitted by way of an affidavit of Mister Raj Singh, Head Police Station, Deputy Superintendent of Police, Ambala on behalf of respondents numbered 1 to 3 and 6. As per the said reply, the petitioner on 8 April 2022 stated that she did not wish to take action against her in‑laws and would file an appropriate complaint separately at Kurukshetra. The statement of her husband Avikash Turka was recorded on the same day and he stated that he and his parents were willing to give the child to his wife as his daughter needed both parents and they could share custody for a period of six months each. This was because the child was being taken care of by his parents and otherwise did not want to go with the petitioner on 28 March 2022. However, they would let the child go with the mother if the child so wanted., The respondents numbered 7 and 8 did not file any reply during the course of proceedings before the High Court of Punjab and Haryana at Chandigarh. However, counsel for respondents numbered 7 and 8 stated that they were willing to share custody of the minor child with the petitioner. On a query as to how that would be possible, given that the petitioner and her husband Avikash Turka are residing in Australia and respondents numbered 7 and 8 are ordinarily residents of Ambala, Haryana, India, no response whatsoever was provided by their counsel., The counsel for the petitioner submits that the child had been brought by respondents numbered 7 and 8 to India in January 2020 with the clear understanding that the petitioner would follow the suit and thereafter bring the child back to Australia where she is ordinarily residing with the petitioner. However, due to COVID‑19 restrictions she was unable to travel back to the country until March 2022. When she came back and attempted to take her child to her own parental home, the same was objected to by respondents numbered 7 and 8. This unlawful, illegal and forcible retention of the child entitles the petitioner to the relief as prayed for in this petition, especially when the female child is less than five years old and needs the care, love and attention of the petitioner‑mother. In fact, the custody of the minor child has always been with the petitioner except for a few occasions in the past when the child resided with respondents numbered 7 and 8, but such an incident of respondents numbered 7 and 8 refusing to part with the child had never taken place. The welfare of the child is of paramount importance and, therefore, the custody ought to be handed over to the petitioner. Reference is made to Section 6 of the Hindu Minority and Guardianship Act, 1956 to contend that the custody of a girl child less than five years of age should ordinarily be with the mother., The counsel for respondents numbered 7 and 8 has only reiterated the version of Avikash Turka, as per his statement Annexure R‑1 recorded by the investigating agency. He has not been able to point out anything significant as to why the custody of the minor child should be retained by respondents numbered 7 and 8 except to say that the child is attached to the grandparents and that they were willing to share the custody with the petitioner. As has already been mentioned, he has been unable to explain how the child's custody could be shared with the grandparents, i.e., respondents numbered 7 and 8, who are residents of India, and the petitioner, the mother, who is a resident of Australia., The learned State Counsel has only reiterated the version in the State's reply dated 28 April 2022. Before proceeding further it would be necessary to examine the relevant provisions of the Hindu Minority and Guardianship Act, 1956 which are as follows: Natural guardians of a Hindu minor are, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), (a) in the case of a boy or an unmarried girl, the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father; (c) in the case of a married girl, the husband, provided that no person shall be entitled to act as the natural guardian of a minor under this section (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation: In this section, the expressions father and mother do not include a step‑father and a step‑mother. Welfare of the minor shall be the paramount consideration in the appointment of any person as guardian of a Hindu minor by a court. No person shall be entitled to guardianship by virtue of the provisions of this Act or any law relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor., The Honorable Supreme Court and the High Court of Punjab and Haryana at Chandigarh have on various occasions dealt with the issue in hand. In Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (2019) 3 Reported Cases and References (Civil) 104, the maternal aunt and uncles had custody of the child whose mother was ailing and subsequently died. The father sought custody and the Supreme Court, while granting custody of the child, held that the welfare of the minor is of paramount importance and that the custody of the minor child by the appellants cannot be said to be illegal or improper detention so as to entertain the habeas corpus, which is an extraordinary remedy. The Court relied on Doctor Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 Supreme Court Cases 92 and Sarita Sharma v. Sushil Sharma (2000) 2 Reported Cases and References (Civil) 367, and held that the welfare of children requires a full and thorough inquiry and therefore, the High Court should, instead of allowing the habeas corpus petition, have directed the respondent to initiate appropriate proceedings in the civil court. In Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 Supreme Court 93 and Smt. Manju Malini Sheshachalam daughter of Mr. R. Sheshachalam v. Vijay Thirugnanam son of Thivugnanam and others (2018) Supreme Court Cases Online Karnataka 621, the Supreme Court held that the natural guardian is entitled to maintain a writ petition for habeas corpus when the child is illegally detained. The Court observed that under the Mohammedan law, the mother of an illegitimate female child is entitled to its custody and refusal to restore the custody to the mother results in illegal detention within the meaning of Section 491 of the Code of Criminal Procedure. In Veena Kapoor, the issue of custody of a child was between natural guardians who were not living together. The mother filed a habeas corpus petition seeking custody of the child from her husband alleging that her husband was having illegal custody of the one‑and‑half‑year‑old child. The Supreme Court directed the District Judge to take down evidence and report to the Supreme Court on whether, considering the interest of the minor child, its mother should be given custody. In Rajiv Bhatia v. Government of NCT of Delhi and others (1999) 8 Supreme Court Cases 525, the habeas corpus petition was filed by the mother alleging that her daughter was in illegal custody of the husband's elder brother; the Court held that the High Court was not entitled to examine the legality of the adoption deed before deciding custody. In Manju Malini, the Karnataka High Court held that the refusal by respondents to hand over custody of minor Tanishka to the petitioner, the natural and legal guardian, amounted to illegal detention and kidnapping under Section 361 of the Indian Penal Code. The Court reiterated that habeas corpus is an extraordinary remedy to address illegal detention of a minor when ordinary remedies are unavailable or ineffective, and that the welfare of the minor is the paramount consideration.
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After referring to a number of judgments and observing that while dealing with child custody cases the paramount consideration should be the welfare of the child and due weight should be given to the child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, the Supreme Court of India in Nil Ratan Kundu v. Abhijit Kunu, 2008 (3) Report of Cases and Rulings (Civil) 936: (2008) 9 Supreme Court Cases 413, held that... In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148, the Rajasthan High Court observed that although the father is a natural guardian of a minor child and therefore has a preferential right to claim custody, the paramount consideration in matters concerning the custody of a minor child is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration of what is conducive to the welfare of the minor child. The Court also observed that keeping the welfare of the child as the sole consideration, it would be proper to ascertain the wishes of the child as to with whom he or she wants to live., In M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Madras 315, the Madras High Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to the human touch. The human touch is primary for the welfare of the minor because other material may be created by the parties themselves or on the advice of counsel to suit their convenience., In Kamla Devi v. State of Himachal Pradesh, AIR 1987 Himachal Pradesh 34, the Himachal Pradesh High Court observed that while deciding child custody cases in its inherent and general jurisdiction the Court is not bound by the mere legal right of the parent or guardian. Although the provisions of the special statutes governing the rights of the parents or guardians may be taken into consideration, nothing can prevent the Court from exercising its parens patriae jurisdiction, giving due weight to circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, health, education and general maintenance, and favourable surroundings. Such cases must ultimately be decided on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other., In our judgment, the law relating to custody of a child is fairly well settled. In deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom, but such cases cannot be decided solely by interpreting legal provisions. It is a human problem that must be solved with a human touch. While dealing with custody cases, the Court is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting the proper guardian of a minor, the paramount consideration should be the welfare and well‑being of the child. In exercising its parens patriae jurisdiction, the Court is expected, indeed bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts, moral and ethical values cannot be ignored; they are equally, if not more, important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference, although the final decision rests with the Court as to what is conducive to the welfare of the minor., The Supreme Court of India relied upon Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42, where it held that the dominant consideration for the Court is the welfare of the child. In McGrath (1893) 1 Ch 143, Lindley, L.J. observed that the welfare of the child is not to be measured by money only nor merely physical comfort; the word welfare must be taken in its widest sense, including moral or religious welfare and the tie of affection., When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court must look beyond a purely legalistic basis; human angles are relevant for deciding those issues. As observed recently in Mausami Moitra Ganguli case, 2008 (4) Report of Cases and Rulings (Civil) 551: (2008) 7 SCC 673, the Court must give due weight to the child's ordinary contentment, health, education, intellectual development and favourable surroundings, but over and above physical comforts, moral and ethical values have also to be noted. They are equal, if not more important, than the others., The word welfare used in Section 13 of the Hindu Minority Guardians Act must be construed literally and taken in its widest sense. The moral and ethical welfare of the child must weigh with the Court as much as its physical well‑being. Although the provisions of the special statutes governing the rights of the parents or guardians may be taken into consideration, nothing can prevent the Court from exercising its parens patriae jurisdiction in such cases., In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, the Supreme Court of India observed that the principle on which the Court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors., The children are not mere chattels nor are they mere play‑things for their parents. The absolute right of parents over the destinies and lives of their children has, in modern changed social conditions, yielded to considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of society. The guardian Court, in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them., The learned counsel for the appellants placed reliance upon G. Eva Mary Elezabath v. Jayaraj and Others, 2005 SCC Online Mad 472, where the custody of a minor child aged one month who had been abandoned by the father in church premises immediately on the death of his wife was in question. Custody was handed over to the petitioner, who cared for the child for two and a half years under the supervision of the pastor of the church. The father later snatched the child after two and a half years; although the father was a natural guardian, the Court declined to award him custody., In Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, 1993 (1) Report of Cases and Rulings (Criminal) 529: (1992) 3 SCC 573, the father of the children was facing charges under Section 498‑A of the Indian Penal Code and the children expressed their willingness to remain with their maternal uncle, who was looking after them very well, and they expressed a desire not to go with their father. The Supreme Court of India found the children intelligent enough to understand their well‑being and, in the circumstances of the case, handed over custody to the maternal uncle instead of the father., In the case at hand, the father is the only natural guardian alive and has neither abandoned nor neglected the child. Only due to the peculiar circumstances of the case the child was taken care of by the appellants. Therefore, the cases cited by the appellants are distinguishable on facts and cannot be applied to deny custody of the child to the father., As observed in Rosy Jacob earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all relevant circumstances. The welfare of the child includes factors such as ethical upbringing, economic well‑being of the guardian, the child's ordinary comfort, contentment, health, education, etc. The child Shikha lost her mother when she was just fourteen months old and is now being deprived of the love of her father for no valid reason. The High Court pointed out that the father is a highly educated person working in a reputed position and his economic condition is stable., The welfare of the child must be determined according to the facts and circumstances of each case and the Court cannot adopt a pedantic approach. In the present case, the first respondent has neither abandoned the child nor deprived the child of his love and affection. The circumstances were such that, due to illness of the parents, the appellants had to take care of the child for some time. Merely because the appellants, being relatives, cared for the child for some time, they cannot retain custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child; they merely contend that he has no female support to take care of the child. The first respondent is fully recovered from his illness, is now healthy, has the support of his mother and is able to take care of the child. In Mandeep Kaur v. State of Punjab & Others, 2021 (1) Report of Cases and Rulings (Civil) 152, the Court held that a habeas corpus petition is not liable to be dismissed on the ground that the natural guardian under Section 6 of the Hindu Minority Guardians Act is not illegal and that an alternative remedy of filing a petition for custody under the Guardians and Wards Act is available., In Criminal Appeal No. 127 of 2020 SLP (Criminal) No. 7390 of 2019, Yashita Sahu v. State of Rajasthan and others, decided on 20 January 2020, the Supreme Court of India observed that it is too late to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law has developed and now it is a settled position that the Court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw & Others (1987) 1 SCC 42, Nithya Anand Raghavan v. State (NCT of Delhi) & Anr. (2017) 8 SCC 454 and Lahari Sakhamuri v. Sobhan Kodali (2019) 7 SCC 311, among others. In all these cases the writ petitions were entertained., The exercise of extraordinary writ jurisdiction to issue a writ of habeas corpus in such cases is not solely dependent on a determination of illegality of detention; it is based on the paramount consideration of the welfare of the minor child irrespective of the legal rights of the parents. It follows that a petition for issuance of a writ of habeas corpus to recover custody of a minor child, if the child is in illegal custody or being detained in a manner detrimental to the interest of the minor, is maintainable. Cases such as Gohar Begam v. Suggi alias Nazma Begam (1960) 1 SCC 597; Manju Tiwari v. Rajendra Tiwari, AIR 1990 SC 1156; Syed Saleemuddin v. Dr. Rukhsana, 2001 (2) Report of Cases and Rulings (Criminal) 591; and Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others, 2019 (3) Report of Cases and Rulings (Civil) 104, illustrate this principle. The Supreme Court or High Court, in exercise of its writ jurisdiction under Article 32 or Article 226 of the Constitution, may direct by issuance of a writ of habeas corpus that custody of a minor be given to any other person until the question of its custody is decided by the Guardian or Family Court in accordance with law., The judgments relied upon by learned counsel for respondents No.4 and 5, such as Amit v. Nirmal Sahu (Allahabad High Court) 2009 (5) Report of Cases and Rulings (Civil) 258, Manjula Jha v. Ravindra Nath Jha (Allahabad High Court) 1988 (1) HLR 273, and Muthian Sivathanu v. Home Secretary, Government of Tamil Nadu and Others (Madras High Court) 2014 (38) Report of Cases and Rulings (Criminal) 219, are not of assistance because in those cases an alternative remedy under the Guardians and Wards Act was already pending before the Family Court. In the present case the petitioner was not pursuing any such remedy before filing the present habeas corpus petition., It follows from the above discussion that the present habeas corpus petition is not liable to be dismissed on the ground that custody of the minor daughter with respondent No.4 – the father – is not illegal and that an alternative remedy of filing a custody petition under the Hindu Minority Guardians Act or the Guardians and Wards Act is available., The next question is whether the petitioner is entitled to take custody of the minor daughter from respondent No.4., As between the parties who are Hindus, the Hindu Minority Guardians Act lays down the principles on which custody disputes are to be decided. Under Section 6(a) of the Hindu Minority Guardians Act, the natural guardian of a Hindu minor with respect to the minor's person as well as the minor's property (excluding his or her undivided interest in joint family property) is the father, in the case of a boy or an unmarried girl, and after him, the mother. However, the proviso to Section 6(a) provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother., The Supreme Court of India, in Roxann Sharma v. Arun Sharma, 2015 (2) Report of Cases and Rulings (Civil) 93, observed that the Hindu Minority Guardians Act postulates that custody of an infant or a tender‑aged child should be given to his or her mother unless the father discloses cogent reasons indicating that the welfare and interest of the child would be undermined or jeopardised if custody remained with the mother. Section 6(a) therefore preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person while the child is less than five years old. The provision does not disqualify the mother from custody of the child even after the child crosses the age of five years., A Coordinate Bench of this Court, in CRWP‑3013 of 2020 titled Neha v. State of Haryana and Others, decided on 1 June 2020, while interpreting Section 6(a) of the Hindu Minority Guardians Act, observed that the word ‘ordinarily’ is to be construed to mean that unless the father prima facie shows that the child would be better cared for by deprivation of motherhood, the mother is presumed to be the suitable custodian. The father must give cogent reasons indicating that the welfare and interest of the child would be jeopardised by exclusive motherhood., In the present case the question of welfare and interest of the minor daughter must be judged on the universally acknowledged superiority of the mother’s instinctive, self‑less love and affection, particularly for infants. The lap of the mother is the natural cradle where the safety and welfare of the infant can be assured; no substitute can equal the mother’s protection, love and care, which are indispensable for the healthy growth of infants., Accordingly, in view of Section 6(a) of the Hindu Minority Guardians Act, custody of the minor daughter, who is now about three and a half years old, should ordinarily be with the petitioner, who is her mother. The custody was with the petitioner until her arrest in a theft case registered against her, her parents and other family members at the instance of respondent No.4. The question of guilt or innocence in the theft case must be decided on the basis of evidence before the trial Court and is not required to be examined by this Court in the present proceeding. The petitioner has nothing to do with the criminal case registered against her father. The matrimonial dispute of her brother with his wife is also a personal matter. The petitioner cannot be said to be disabled by these matters from properly looking after and providing motherly care to the minor daughter. Respondent No.4, being a businessman, has to go out of the house to attend to his business, and respondents No.4 and 5 cannot be said to be in a better position to take care of the minor child compared to its mother. Respondents No.4 and 5 have not given any cogent reasons indicating that the welfare and interest of the minor daughter would be jeopardised by entrusting interim custody to the mother. Therefore, there is no valid ground to deny interim custody of the minor daughter, who is less than five years old, to her mother—the petitioner—which is essential to the welfare and best interest of the child. While custody with the father, who is the natural guardian, cannot be said to be illegal, the statutory right conferred by Section 6(a) of the Hindu Minority Guardians Act and the essential welfare considerations entitle the mother to interim custody., In the case of Neha v. State of Haryana & Others, 2020 (4) Report of Cases and Rulings (Civil) 643, the mother filed a habeas corpus petition before the High Court for custody of her minor daughter who had been taken away by the father. The father contended that the child was in his lawful custody and that the writ petition was not maintainable because alternative remedies were available. The Court observed that the writ petition was maintainable and that the paramount consideration is the welfare of the minor child irrespective of the legal rights of the parents., The Court further observed that even though there are allegations and counter‑allegations between the petitioner and respondent No.4 regarding their matrimonial conduct, such issues are best left for appropriate proceedings. The paramount consideration is what serves the best interest and welfare of the minor daughter, and the availability of other remedies does not render the present petition non‑maintainable.
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It is a settled position in law that a writ of habeas corpus is maintainable to ensure the safety, security, welfare and happiness of a minor child. In such matters, what has to be decided is not merely the legal rights of the spouses involved but, more predominantly, the criteria to be adopted by the High Court of Punjab and Haryana is what is in the interest and welfare of the minor child rather than the interest of the parents. Every child is a national asset and it is the bounden duty of the court also to watch and ensure the welfare and interest of a child in trouble, that best suits his/her upbringing. Parental love and affection, their rights and duties vis‑a‑vis their child are not to be undermined in any manner; the court is only to supplement after weighing all the pros and cons., Another aspect that is particularly noteworthy herein is the tender age of the minor daughter. She is merely four years old and, ordinarily, per Section 6 of the Hindu Minority and Guardianship Act, 1956, custody of a minor who is less than five years has to be with her mother. For ready reference, the section is reproduced as follows: 6. Natural guardians of a Hindu minor – The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl – the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother., The provision postulates that custody shall ordinarily be with the mother, but the word ‘ordinarily’ is to be construed to mean that unless, prima facie, it is shown otherwise by the father that the child would be better cared for by deprivation of motherhood, the father must give some cogent reasons indicative of the welfare and interest of the child being jeopardised or the exclusive motherhood being imminently non‑conducive to the upbringing of the child. In the present family scenario there is no such cogent reasoning forthcoming to deny the statutory right of a mother. Said motherhood right, in fact, is essentially more for the benefit and welfare of the minor child. The spirit of Section 6 hypothesises that, given the tender age of a minor, suitability of custody is not the predominant factor; what is more relevant is the requisite biological and natural environment, which gives rise to a general presumption that the mother is first and best suitable for child‑care of a minor of that age., In the aforesaid background, while there is no dissent with the proposition that respondent No. 4, being the father of the minor daughter, cannot be stated to be in illegal or unlawful custody, since the minor daughter is less than five years, the mother is therefore entitled to the benefit of Section 6. That apart, prima facie this High Court of Punjab and Haryana is of the opinion that until the prayer of the parties qua custody of the minor child is decided by the Guardian Court, the welfare and interest of the minor child would be better in the hands of the mother‑petitioner., Having given careful thought to the entire family set‑up vis‑a‑vis the welfare of the child involved herein and the relevant statutory provisions, I am of the opinion that it may not be desirable to continue the custody of the minor child with respondent No. 4, especially when the minor daughter, since her childhood, was with both parents until, in a surreptitious manner, she was taken away by the father‑respondent No. 4 to have exclusive custody., It is also made clear that respondent No. 4 shall be at liberty to file an appropriate fresh application for temporary or interim custody keeping in view the paramount interest and welfare of the child. My aforesaid observations are merely preliminary and the Guardian Judge, without being influenced therefrom, shall deal with the pending petition under Section 25 and proceed to pass appropriate orders in accordance with law. Since liberty has already been given to respondent No. 4 to file an appropriate application seeking custody, it would be appropriate at this stage to grant temporary custody of the minor to the petitioner till any further appropriate orders are passed by the Guardian Court., In the case of Mandeep Kaur v. State of Punjab, CRWP 8319‑2020, decided on 10 May 2021, the wife filed a habeas corpus petition against the husband‑father and there was an interim order of the Australian Courts directing the husband to return the minor child to her mother. This High Court of Punjab and Haryana, while granting custody to the mother, held: The petitioner, who is the mother, is seeking custody of a four‑year‑old girl child. The child would require love, care and affection of the mother for her development in the formative years. The support and guidance of the mother would also be imperative during adolescence. The mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, which is reproduced hereunder: “Natural guardians of a Hindu minor – The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl the father, and after him the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her the father; (c) in the case of a married girl the husband. No person shall be entitled to act as the natural guardian of a minor under this section (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation – In this section, the expression father and mother do not include a step‑father and a step‑mother.” The Court also drew support from judgments in Neha v. State of Haryana and others, and Rajat Agarwal v. Sonal Agarwal, FAO No. 4545 of 2017, decided on 25 February 2021, which upheld the order of the Family Court granting custody of a 13‑year‑old child to the mother., The Division Bench observed: “Keeping in view the totality of facts and circumstances of the present case, we are of the considered opinion that the respondent‑mother is the best person to educate and bring up her minor daughter and to effectively take care of her interest and welfare. The role of the mother in the development of a child's personality can never be doubted. Mother shapes a child's world from the cradle by rocking, nurturing and instructing her child. Particularly, the company of a mother is more valuable to a growing‑up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother.”, Mother is a priceless gift, a real treasure and an earnest heartfelt power for a child, especially for a growing girl of the age of thirteen years, which is a crucial phase of life involving major biological and psychological shifts. At this age the daughter looks for a mother or female companion with whom she can share and discuss certain issues comfortably. There are many matters a daughter could not discuss with her father, and therefore the mother shall be the best person to take care of her at this growing age. The petitioner has permanent residency in Australia, earns Australian $70,000 per annum and a handsome sum would be payable by the Australian authorities for the maintenance of the child. She has bought a house in Australia. Although the petitioner should have been more forthcoming and categorical in disclosing her educational qualification, the lapse is not significant enough to oust her from writ jurisdiction for issuance of a writ of habeas corpus for custody of a child, as the paramount consideration for this High Court is the interest and welfare of the child. The petitioner can avail opportunities for further studies in Australia and enhance her qualification. She is nonetheless employed in Australia and commands a financial status which would enable her to bring up the child by imparting good education. The father is an Australian citizen, has obtained a diploma in Hospitality Management, is employed in Australia and has recently come to India. He owns a small piece of agricultural land and has some rental income. Both parties had gone to Australia in furtherance of their career prospects and were working there. The child was born in Australia and in the initial years was brought up there. Ideally it would be in the best interest and welfare of the child to have the love, affection and company of both parents especially in the formative years. This High Court mooted the idea of reconciliation but there was no headway as the petitioner wants to live in Australia while respondent No. 4 wants to settle in India, although he has a professional degree in Australia and his prospects there appear bright. This is not to suggest that a child raised by a single parent would be at a disadvantage; modern times are replete with instances of children raised by a single parent growing up as responsible adults contributing to nation‑building in various fields., In Jaswinder Kaur v. State of Punjab & Ors., 2010(2) RCR (Criminal) 891, the mother filed a habeas corpus petition against the grandparents after the father had passed away. The Supreme Court of India held that the writ of habeas corpus is maintainable to hand over custody of minor children where the custody has been taken by the other party by force or not in a legal manner, and the custody should be returned to the guardian, keeping in view the welfare of the minors. The Court further observed that while awarding custody the welfare of the children is the paramount consideration and custody can even be handed over to relatives who are not natural guardians, according to the Hindu Minority and Guardianship Act., In the matter concerning the deceased Anil Kumar, the father was the natural guardian of the person and separate property of his minor children and, next to him, the mother, under Section 6 of the Hindu Minority and Guardianship Act, 1956. The age of the minors in the present case is seven years and nine years (date of birth of Ekta: 20 August 2000; date of birth of Mohit: 25 August 2002). The petition records that after the death of Anil Kumar on 2 March 2009, the children remained in the custody of the mother until 2 March 2009. The Guardian Court, after considering the whole circumstances, is of the considered view that for the welfare of the minors, custody should be handed over to the mother till the decision of the application under Section 25 of the Act., In Gurmeet Kaur Batth v. State of Punjab & Ors., CRWP 1165‑2008, decided on 20 January 2009, the mother filed a habeas corpus petition against the grandmother and the Canadian Court had given interim custody of the child to the mother. The High Court of Punjab and Haryana, while granting custody to the mother, held that before passing any order regarding custody of the child, the material question of maintainability of the habeas corpus petition in matters of custody of a minor child must be determined. It is a settled principle of law that in all disputes pertaining to custody of a minor child, the interest and welfare of the minor is the predominant criteria., The Supreme Court of India, in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another, AIR 1987 SC 3, considered a dispute pertaining to custody of a minor child in a criminal writ petition where one minor child was born of an Indian father and an American mother. The father abducted the minor illegally in India. The Court held that the mother, full of genuine love and affection, could be safely trusted to look after the child, educate him and attend to his proper upbringing. The child’s presence in India was a result of an illegal act of abduction and the father was not entitled to claim any advantage., In Marilynn Ainat Dhillon Gilmore @ Anita Dhillon v. Margret Nijjar and others, 1984 (1) I.L.R. (Punjab) 1, the parents were citizens of the United States but had come to India. The wife filed a habeas corpus petition for custody of her minor child. The High Court held that it could go into the question of custody of the children in habeas corpus proceedings and observed: “Children need the love and care of both parents. If they cannot get it from both then at least they must get it from one. The course which would deprive them of both must be avoided and adopted as the last resort.” The Court emphasized that the welfare of the children is the supreme consideration when employing the remedy of habeas corpus., In Syed Saleemuddin v. Dr. Rukhsana, AIR 2001 SC 2172, the Supreme Court of India considered the scope of a habeas corpus petition regarding custody of minor children and held that the petition is maintainable. While granting custody of the children to their mother till the Family Court disposes of the petition for custody, the Court observed that the principal consideration is whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody be changed., In Mrs. Kuldeep Sidhu v. Chanan Singh and others, AIR 1989 P&H 103, the mother had an order of interim custody in her favour from a foreign Court and the father had, in an unauthorized manner, removed the children from Canada to India. The habeas corpus petition was allowed and custody of the children was directed to be handed over to the mother., In Eugenia Archetti Abdullah v. State of Kerala, 2005 (1) RCR (Crl.) 259, a Division Bench of the Kerala High Court observed that for custody of children less than three years the lap of the mother is a natural cradle where safety and welfare can be assured and there is no substitute for the same. The Court held that the High Court can exercise jurisdiction under Article 226 of the Constitution of India for issuance of a writ of habeas corpus when there is illegal detention or wrongful custody., In Surabhai Ravikumar Minawala v. State of Gujarat, 2005 (2) RCR (Civil) 822, the habeas corpus petition of the mother regarding custody of a nine‑month‑old child was allowed, holding that no amount of wealth can take the place of a mother’s care and love., In Manjit Kaur v. State of Punjab, Crl. W.P. No. 608 of 2008, decided on 14 August 2008, a minor child of nine months was taken away by his grandparents when their daughter‑in‑law, an NRI, had come from abroad for a short period. The Court held, relying upon Manju Tiwari’s case, that the habeas corpus petition was maintainable as the child had been illegally snatched away from the mother, and custody was handed over to the mother, leaving the parties to avail other remedies in accordance with law., Counsel for the respondents vehemently contended that a habeas corpus petition for custody of the child is not maintainable and that the only remedy available to the petitioner is to approach the Family Court where the matrimonial dispute is pending. He placed reliance on the judgment of Sheela v. State of NCT of Delhi and another, 149 (2008) Delhi Law Times 476 (DB), where the writ petition was dismissed after the child was returned to the father following the wife’s failure to comply with interim directions. He also relied on Saihba Ali v. State of Maharashtra and others, 2003 (4) RCR (Civil) 273, where the Supreme Court held that the writ was not maintainable but the Court could pass an order in the interest and welfare of the minor children granting the mother visiting rights. Further reliance was placed on judgments of the Allahabad High Court in Manjula Jha v. Ravindra Nath Jha, 1998 (1) All India Hindu Law Reporter 273, and Vaidehi v. I. Gopinath, 1993 (2) All India Hindu Law Reporter 647, where the writ petitions were dismissed but directions were given to produce the children before the Guardian Judge. The Punjab and Haryana High Court in Smali Bagga (Smt.) v. State of Punjab and another, 1996 (2) RRR 202, dismissed the habeas corpus petition but directed the Guardian Judge to decide the case within three months. In Sumanlata v. Omprakash Saini and others, 1990 (1) All India Hindu Law Reporter 286, it was held that where the paramount interest of the minor does not demand any action, the Court will be slow in issuing the writ of habeas corpus. After discussing the ambit and object of Article 226(3) of the Constitution in relation to the issuance of a writ of habeas corpus for custody of minor children and the law laid down by various judgments of the Apex Court and High Courts, the writ petition of the mother was dismissed.
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After careful perusal of the judgments cited by counsel for the respondents, I am of the considered opinion that in none of the said judgments it has been laid down as a rule of law that in all cases of production and custody of the child by a natural guardian should be dismissed merely because it is for another Court that is Court of Guardian Judge to determine the question of welfare of the minor child in custody of another person. In view of the ratio of the judgments that is Manju Tiwari's case (supra) and a Division Bench of Kerala High Court in 32 of 36 Eugenia Archetti Abdullah's case (supra), the Supreme Court of India is of the opinion that High Court can exercise jurisdiction vested in it under Article 226 of the Constitution of India with respect to the issuance of a writ of habeas corpus when the custody of the child has been taken away by one of the natural guardians by playing a fraud upon the other., Mr. Navkiran Singh has also relied upon Sumedha Nagpal v. State of Delhi and others 2000 (9) Supreme Court Cases 745 to say that till the issue of guardianship of the child is decided, custody of the child cannot be given to the mother., I am of the view that this judgment is not of any help to the counsel for the respondent grandmother. In the present case, custody of the child was entrusted by the mother to the grandmother. Therefore, on the demand made by the mother for return of the child, she is bound to comply and return the child as she is not a natural guardian. Respondent grandmother has failed before the Guardian Judge and before the Supreme Court of India in Civil Revision No. 757 of 2008. Furthermore, the court of competent jurisdiction in Canada has held that the mother is entitled to the custody of the child. Even otherwise, the mother's lap is the natural cradle. Therefore, respondent is bound to produce the child in the Supreme Court of India and hand over to the mother, who is a natural guardian. The petitioner mother will be permitted to take the child, along with travel documents, to Canada., A perusal of Section 6 of The Hindu Minority and Guardianship Act, 1956 along with various judgments (supra) would show that in child custody matters, the ordinary remedy lies under the Hindu Minority and Guardianship Act, 1956 and The Guardianship and Wards Act, 1890 as the case may be. There are significant differences between an inquiry by the Civil Courts and the exercise of powers by a Writ Court which is of summary nature where rights are determined on the basis of affidavits. Therefore, where the court is of the view that a detailed inquiry is required the court may decline to exercise the extraordinary jurisdiction of a Writ Court and direct the parties to approach the Civil Court. Consequently, it is only in exceptional cases, where the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction in a petition for habeas corpus. Thus, where in the circumstances of a particular case the ordinary remedy of the Civil Courts is either not available or is ineffective, a writ of habeas corpus is certainly maintainable, especially where it is shown that the detention of the minor child by a parent or others was illegal, without any authority of law and was also to the detriment of the child., Thus it is apparent that the paramount consideration ought to be the welfare of the child and due weight should be given to the child's comfort, contentment, health, education, intellectual development, familiar surroundings etc. The question of the welfare and interest of a minor child has to be judged on the consideration of the acknowledged superiority of the mother's love and affection for her children. The lap of the mother is a natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same. No amount of wealth or mother‑like love can substitute for a mother's love and care and, therefore, maternal care and affection is indispensable for the healthy growth of a child., In the present case, the girl child was born on 01.08.2017 and is therefore less than five years old. She was brought back to India by respondent no. 7 and 8 on 23.1.2020 after which, due to COVID‑19, the petitioner‑mother was unable to see her till March 2022. Consequently, when the child left the company of the petitioner she was approximately two years old and spent her growing years in the company of her grandparents, i.e., respondent no. 7 and 8. According to the father, the child refused to go with the petitioner when the petitioner left for her parental home on 28.03.2022. Even if the father's statement is taken as true that the child refused to go with the mother, that by itself does not have significance because a child of such tender age does not know what is in her best interest. The child had not met her mother for two years between January 2020 and March 2022. For reasons beyond her control the petitioner was unable to return to India. The minor girl child may have developed a bond with respondents 7 and 8 with whom she has been residing for more than two years, which might have led her to state that she does not wish to go with her mother. However, in the long term, for the benefit and welfare of the child, it cannot be said that the welfare of the child would be better taken care of by the grandparents as opposed to the mother. Moreover, for a child who is less than five years old, custody should ordinarily be with the mother. No significant argument has been raised by respondents 7 and 8 as to why custody should not be with the mother., With respect to sharing custody, the mother is a resident of Australia and so is the father. Respondent no. 7 and 8 (the grandparents) are residents of India; therefore, the father's suggestion that the petitioner and respondents 7 and 8 could share custody is illogical, unreasonable and cannot be accepted. Issues of the child's education, health, etc., are best dealt with by the mother unless it is shown that the mother is completely incapable of maintaining the minor child., In view of the above discussion, the present petition is allowed. Respondent no. 3 and 4 are directed to ensure that the custody of the minor child is handed over by respondent no. 7 and 8 (grandparents) to the petitioner (mother) immediately. Pursuant thereto, an affidavit regarding compliance with this order shall be furnished by respondent no. 3 and 4 to the Supreme Court of India within one week of the handing over of custody of the minor child to the petitioner.
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Writ Petition No. 7284 of 2021. Petitioners: Daughter of Mr. V. Senthil Kumar, G-11, Gaiety Palace No. 1, Blackers Road, Chennai 600002; Daughter of Mr. R. Udhayakumar, G-11, Gaiety Palace No. 1, Blackers Road, Chennai 600002., Respondents: Commissioner of Police, Greater Chennai Police, No. 132, Commissioner Office Building, E.V.K. Sampath Road, Vepery, Chennai 600007; Commissioner of Police, Madurai, Alagar Kovil Road, Madurai 625002; Mr. V. Senthil Kumar; Mr. R. Udhayakumar; Inspector of Police, Thallakulam Police Station, Madurai; Inspector of Police, Avaniyapuram Police Station, Madurai; Home Department, Government of Tamil Nadu, represented by Secretary to Government, Fort St. George, Chennai 600009; Tamil Nadu State Legal Services Authority, represented by its Member Secretary, North Fort Road, High Court Campus, Chennai 600104; Ministry of Law, Government of Tamil Nadu, represented by Secretary to Government, Fort St. George, Chennai 600009; Ministry of Social Justice and Empowerment, represented by Secretary, Government of India, Shastri Bhavan, Dr. Rajendra Prasad Road, New Delhi 110001; Director, Social Justice and Empowerment, Shastri Bhavan, Dr. Rajendra Prasad Road, New Delhi 110001; National Medical Commission, represented by its Chairman, Dwaraka, New Delhi 110077; Indian Psychiatric Society, represented by its office, Plot 43, Sector 55, Gurugram, Haryana 122003; Rehabilitation Council of India, represented by its Member Secretary, B-22, Qutub Institutional Area, New Delhi 110016; Department of Higher Education, Government of India, represented by its Joint Secretary, 122-C, Shastri Bhawan, New Delhi 110001; Department of School Education & Literacy, represented by its Joint Secretary, 217-C, Shastri Bhawan, New Delhi 110001; School Education Department, Government of Tamil Nadu, represented by Secretary to Government, Fort St. George, Chennai 600009; Higher Education Department, Government of Tamil Nadu, represented by Secretary to Government, Fort St. George, Chennai 600009; University Grants Commission, represented by its Secretary, Bahadur Shah Zafar Marg, New Delhi; All India Council for Technical Education, represented by its Advisor-1 (Approval), 7th Floor, Chandralok Building, Janpath, New Delhi; National Council of Educational Research and Training, represented by its Director, Sri Aurobindo Marg, New Delhi; Secretary to Government, Union of India, Ministry of Health and Family Welfare, Nirman Bhavan, Near Udyog Bhavan Metro Station, Mouland Azad Road, New Delhi 110001; Ministry of Women and Child Development, represented by its Secretary, Government of India., Prayer: Writ Petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus directing Respondents 1 to 3 to inquire with the parents of the petitioners and instruct them not to interfere with the life of the petitioners and consequently to grant necessary police protection to the petitioners. For petitioner: Mr. S. Manuraj. For Respondents 1, 2, 5 and 6: Mr. Hasan Mohammed Jinnah, State Public Prosecutor. For Respondent 3: Mr. Mithelesh. For Respondent 4: Mr. P. Thilak Kumar. For Respondents 7, 8, 9, 17 and 18: Mr. Shanmugasundaram, Advocate General, assisted by Ms. Shabnam Banu, Government Counsel. For Respondents 10 to 16, 19, 20, 21, 22 and 23: Mr. Shankaranayanan, Additional Solicitor General, assisted by Mr. V. Chandrasekar, Central Government Standing Counsel., This Writ Petition has brought to light an important issue requiring de‑stigmatisation and acceptance in society. Madras High Court has consciously refrained from adopting the usual course of disposing cases of this nature that knock on the doors of this institution., The crux of the case is as follows. The petitioners, a lesbian couple whose relationship was opposed by their parents who are the fourth and fifth respondents, fled to Chennai from their respective houses in Madurai. With support extended by certain non‑governmental organizations and persons belonging to the LGBTQIA+ community, they secured accommodation and protection and were searching for employment to financially sustain themselves. Meanwhile, the fourth and fifth respondents individually filed girl‑missing complaints before the sixth and seventh respondent police, and two FIRs were registered. Having faced interrogation by the police at their residential premises and apprehending threat to their safety and security, the petitioners approached Madras High Court seeking a direction to the police not to cause harassment and protection from any form of threat or danger to their safety and security from the fourth and fifth respondents., Madras High Court, feeling that the case required detailed attention, passed an order on 22 March 2021. The learned Government Advocate, who took notice on behalf of the respondent police, submitted that the respondent police will be instructed in this regard and the safety of the petitioners will be ensured., The case requires to be dealt with more sensitivity and empathy and is a sample case of how society is still grappling to come to terms with same‑sex orientation. Considering the sensitivity of the issue, Madras High Court wants to hear the parties in camera. The matter was posted on 29 March 2021 at 2:15 p.m. in the Hon’ble Chief Justice’s Chamber., On 29 March 2021, the petitioners, the fourth and fifth respondents and the sixth and seventh respondent police were present in person before Madras High Court with their representing counsel. The proceedings of the chamber hearing and the order passed thereof are extracted herein., Madras High Court thought it fit to talk to the petitioners and their parents in order to assess their mental status and understand their stand before proceeding further. The first petitioner is about 22 years old, has completed Bachelor of Science in Mathematics and is presently pursuing Master of Business Administration in correspondence mode at Madurai Kamaraj University. The second petitioner is about 20 years old and is pursuing Bachelor of Arts in Tamil through correspondence mode at Madurai Kamaraj University. The petitioners have known each other for the last two years; their friendship blossomed into love and they were clear that they would be partners for life., The parents of the respective petitioners learned about the relationship and it was not to their liking. Opposition and pressure mounted, and the petitioners left Madurai on 09 February 2021 for Chennai. The petitioners are presently supported by a non‑governmental organization namely International Foundation for Crime Prevention and Victim Care (PCVC) and are searching for a job to financially sustain themselves., Madras High Court individually interacted with the parents of the petitioners. The parents are shocked and not immediately able to accept the relationship. They are concerned about the security of the petitioners and fear exploitation. They are eager to talk with their daughters, having not heard from them for more than a month., The Court immediately requested the Mediation Centre to allot two cabins to enable the parents to have a one‑to‑one interaction with their daughters. They spent nearly an hour with their respective daughters in the Mediation Centre., The Court thought it fit to refer the petitioners and their respective parents to a counsellor who specialises in working with LGBTQI+ individuals. This move is vital as the Court is moving into uncharted waters, and a report from a specialist will provide support to the Court., I personally spent some time doing research and collecting materials to arrive at a proper understanding of this issue. It would have been possible to pack the order with a lot of research material and be applauded by the outside world for rendering a scholarly order. A call from inside kept reminding me that venturing into such an exercise at this stage would be hypocritical, as the order would not reveal my true and honest feeling about this very important issue. To be open, I am also trying to break my own preconceived notions about this issue and am in the process of evolving, sincerely attempting to understand the feelings of the petitioners and their parents, thereafter proceeding to write a detailed order on this issue. That is the reason why I am trying to develop this case brick by brick and ultimately construct something purposeful on this issue., The request put forth by the Court was readily accepted by all concerned. The Court also requested Ms. Vidya Dinakaran, Master of Science in Counselling Psychology, to counsel the parties and the request was readily accepted by the specialist. The parties were informed that the counselling will take place during the third week of April 2021, and that they will be intimated of the exact date, time and venue through their counsel., After spending sufficient time with the parties, the Court got an impression that the parties will work towards a peaceful resolution, and what is required for the present is an understanding of the issue in hand. The parents were informed that the present status quo will be maintained and the petitioners will continue to be under the protection of the above‑said organisation. The parents were ready for this arrangement and the only request made by them was that they should have regular interaction with the petitioners. The petitioners also agreed to interact with their parents on a regular basis., Mr. Thilagar, Special Sub‑Inspector of Police, was present from Thallakulam Police Station. Mr. Sankar, Sub‑Inspector of Police, was present from Avaniyapuram Police Station. Both officers were informed that the girl‑missing complaint pending in their police station must be immediately closed. The learned Government Advocate submitted that the police will not interfere in this issue any longer, and that the complaints will be immediately closed., The learned counsel appearing on either side requested the Court to continue hearing this case since the Court has interacted with the parties, and it will be more convenient for the parties to put forth their grievance in future hearings and by regularly monitoring this case, the Court can resolve the issue at the earliest., The Court requests Ms. Vidya Dinakaran, Master of Science in Counselling Psychology, to send a report to the Court in a sealed cover preferably on or before 26 April 2021., Considering the request made by the counsel appearing on either side, the Registry is directed to place this order before the Hon’ble Chief Justice and obtain the necessary administrative permission., Post this case, for further hearing on 5 [date missing]. On 28 April 2021, the matter came up for hearing and the Court passed the following order., Pursuant to the earlier orders passed by the Court on 29 March 2021, the matter has been placed before the Court as a specially ordered case, after obtaining appropriate orders from the Hon’ble Chief Justice. The petitioners as well as their respective parents were directed to attend counselling before Ms. Vidya Dinakaran, Counselling Psychologist. On the request made by the Court, the psychotherapist also readily accepted to counsel the parties., A report has been sent by Ms. Vidya Dinakaran in a sealed cover. The report is set out under four heads. The first part explains the falsified notions of sex, gender, sexual orientation and how those terms must be understood. The second part deals with the mental status and observations made after counselling the petitioners on 13 April 2021. The third part deals with the mental status and observations made while counselling the parents of the first petitioner on 14 April 2021. The fourth part deals with the mental status and observations made while counselling the parents of the second petitioner on 16 April 2021., Insofar as the petitioners are concerned, the psychologist has opined that both petitioners perfectly understand the relationship they have entered into and there is absolutely no confusion in their minds about the same. It is also observed that they have a lot of love and affection for their parents and their only fear is that they may be coerced into separation, which would cause mental trauma. The petitioners want to continue their education and work simultaneously, to take care of themselves and remain in touch with their family members. They are also willing to wait for their parents, whom they fervently hope will understand the relationship at some future point., Insofar as the parents are concerned, it is observed that they are more concerned about the stigma attached to the relationship in society and the consequences it may have on their family. They apprehend being looked down upon by society and their own community. They are also very much concerned about the safety and security of their daughters. The parents would rather prefer their daughters to live a life of celibacy, which they consider more dignified than having a partner of the same sex. They have serious confusions regarding lineage, adoption and other consequences that follow a heterosexual relationship and how the same would apply in a case of same‑sex relationship., The learned counsel appearing on either side submitted that the petitioners are continuously in touch with their parents and talk on a regular basis over phone. It was also brought to the notice of the Court that the petitioners have the continued support of the non‑governmental organization., The learned counsel appearing on behalf of the petitioners submitted that pursuant to the Court taking cognizance of the writ petition, the petitioners are safely taken care of by the NGO and they also continue to talk with their parents on a regular basis. Apart from that, there is no threat exerted by the police after the Court intervened in this matter. The counsel requested the Court to issue certain guidelines to deal with cases of similar nature, so that persons involved in same‑sex relationships are treated with dignity and their safety is also ensured., In the considered view of the Court, there has been appreciable progress due to the cooperation extended by the petitioners and their respective parents. The Court places on record its appreciation to Ms. Vidya Dinakaran for having readily accepted the request made by the Court to counsel the parties. It must be seen how far the earlier counselling has impacted the minds of the parents and how far they are able to understand the relationship between the petitioners. Obviously, the evolution cannot take place overnight and requires continuous effort. Therefore, the Court deems it fit to direct the parents of the petitioners to undergo one more round of counselling with Ms. Vidya Dinakaran, Counselling Psychologist., The Court once again requests Ms. Vidya Dinakaran to fix a date during May 2021 and conduct one more counselling for the parents of the petitioners and submit a report before the Court. The learned counsel appearing on behalf of the parents shall coordinate and intimate a convenient date and, considering the ongoing pandemic, the counselling can be held through video conferencing., Insofar as the request made by the learned counsel for the petitioners for setting out guidelines in cases of this nature is concerned, I want to give myself some more time to churn. Ultimately, the words must come from my heart and not from my head, and the same will not be possible if I am not fully awake on this aspect. For this purpose, I want to subject myself to psycho‑education with Ms. Vidya Dinakaran and would request the psychologist to fix a convenient appointment for the same. I honestly feel that such a session with a professional will help me understand same‑sex relationships better and will pave the way for my evolution. If I write an order after undergoing psycho‑education, I trust that the words will fall from my heart., It is brought to the notice of the Court that despite the directions issued by the Court, the police are yet to close the First Information Report. The learned Government Advocate assured that the First Information Report will be closed immediately and reported before the Court., Post this case, for further hearing on 07 June 2021 at 2:15 p.m., Consequent to the order dated 28 April 2021, the fourth and fifth respondents each attended another session of counselling with Ms. Vidya Dinakaran, Counselling Psychologist and a report dated 21 May 2021 was submitted. The report conveys the following in brief: Parents of both petitioners feel great amount of shame, fear and social disdain because of their daughters' homosexual relationship. Both parents expressed exhaustion in dealing with the litigation and felt let down that their daughters have not paid heed to their sentiments and beliefs and are ready to let go of them to live as they wish. However, this did not come from a place of acceptance but from a sense of hopelessness and unwillingness that they had no say in their decision any more. Both parents expressed concern over the safety, security and future of their children. They also expressed their belief that their daughters' homosexual relationship would cause damage to their future. One of the petitioners' parents expressed that happiness is fundamental to them and that they accept her despite differing opinions about homosexuality and the social exclusion they apprehend to face due to the same. The summation reveals that there is no substantial marked change in the attitude of the parents during the second counselling session. At best, one of the parents had the heart to let their daughter live her life even though they were not able to accept their same‑sex relationship with the other petitioner. Even though the counselling of the parents did not ultimately achieve the desired result, the Court has the satisfaction of making all efforts to assuage their feelings and ensure they were not left in the lurch. The Court places on record its appreciation for the parents of the petitioners who willingly cooperated to undergo counselling and make an effort to understand the same‑sex relationship of their daughters., Pursuant to the order dated 28 April 2021, I underwent a session of psycho‑education under Ms. Vidya Dinakaran on 07 May 2021, and I deem it fit to extract the entire report for the sake of transparency, understanding and awareness of all stakeholders. The organic flow of the session was possible because of the openness with which the client came in and the honesty with which thoughts and beliefs were shared. The session began with the client expressing the lack of narratives around homosexuality and how the mere understanding of this orientation poses difficulty due to lack of exposure or personal experience. The need for this session arose from the need to further the understanding of the lived experiences of a homosexual couple. He shared how the subtleties and emotions surfacing in this case demand the usage of a lens that is well‑aware of the narrative. A misconception that came to the forefront was how homosexuality is often viewed only with a sexual connotation, i.e., a relationship confined only to sex. The client expressed how listening to the petitioners made him realise the flawed notion he had and how two women came to be seen as a couple by the end of that discussion for him. He came in with awareness of the prejudice he holds. This was deepened by understanding that no two heterosexuals in a relationship will be judged immediately as being together only to engage in sex and it should not be different for any two people with any other orientation. He believed that even a couple of words of truth and understanding is more valuable than writing a scholarly order in cases like these. The discussion also covered the responsibility he holds now, the awareness that he needs to bring within himself before he paves way for that in society. The result of all such processes undertaken is to enable the judgement to arise from the heart and not just from a superficial understanding on a cognitive level. It was recognised how the role of a system as powerful as this, stepping with the mindset to unlearn, understand and enable a change of this nature instils hope in the queer communities. A major part of the session addressed the problematic binary understanding of sex, gender and sexuality. This problem has its genesis when a newborn child is assigned a male or female sex based on the genitalia, with no inclusivity of people born with organs that do not fit what the normative bodies offer, i.e., intersex. It is also to be noted that intersex is a term that not only refers to the external sexual anatomy but also internal organs and chromosomes leading to the identification of intersex anatomy much later in life. It is a form of coercion when such individuals have the binary system thrust upon them in the form of gender reassignment surgeries. The issue gets intensified when the child is gendered based on the normative idea of sex as mentioned above. This comes with the norms relating to the roles and ways of expression that are expected out of the assigned gender, e.g., any person assigned female comes with an innate quality of politeness and desire to sacrifice, or any person assigned male should never break down and offer protection to everyone in the family. What this leads to is the blemished notion that heterosexuality is the only natural orientation that can arise out of the binary system. A notion that goes along with this is any sexual relationship that does not result in procreation is not the right or a valid relationship. This understanding formulates a rigid way of being which is considered normal. Anything that falls out of this structure is looked at as shameful, abnormal or even abominable. This leads to a heteronormative understanding, i.e., a biased notion that attraction between people of the opposite sex is the only acceptable relationship, thus debasing homosexuality. This heteronormativity is upheld not only through overt behaviours but also through invisible yet impactful subtleties. Hypothetically if a child's genitals are not revealed the exposure that will be presented to them will be varied and expansive, with right to autonomy. And why should it be any different when it is known. The understanding of this by the client was evident when he said he realises how someone's genitals does not determine whom they will be attracted to. The client questioned how something that is so authentic forms an exceedingly small percentage in society and why it is rather treated as a new phenomenon. Homosexuality existed ever since the existence of any other orientation. There are enough references to this even in Hindu scriptures, mythologies and in the iconography of temples. Queer individuals incur losses that a hetero‑normative individual never has to endure. Because of the stigmatised notions, any exposure to what lies beyond heteronormativity is limited. Adding to this is the erasure of any available queer narratives with absolutely no representation even in the present education system. A more evident cause for this is the loss of sense of safety that comes with wearing a queer identity on one's sleeve. The moment a queer person puts out their identity the safest place for any human being, their own home, can turn into a hostile environment. So how they will be treated in a normativity society can be imagined. With truly little to no support, queer people are forced to navigate life away from home. The brutality of constantly having to consciously hide their identity at every corner they turn is unimaginable. A heteronormative individual does not have to pay attention to their identity or how he/she is seen by others. The invisibility of queer lives also plays a significant role here. Queer folks face a constant battle of whether to out themselves in a potentially homophobic group or continue to invisibilise themselves and be invisibilized. The latter has been true for many homosexual individuals who are coerced into living a heteronormative life. The homonegativity can be witnessed in every direction they turn to like loans, jobs, housing, all of it starting with same‑sex marriage not even recognised by the law and hence considered illegitimate. Forces that are supposed to offer protection turn out as potential dangers. There are incidences beyond count in police stations when queer individuals who seek support and protection are met with demeaning dialogues. All these reasons contribute to suicide and self‑harm amongst the queer community, the rate of which is manifold when compared to cis individuals with heterosexual identity. The client shared how the shift towards financial independence by the queer folks enable them to hold their ground stronger than ever before and to even uproot themselves if need be. The client also expressed how the first two orders were welcomed by the members of the community. He said that he was able to understand how the community was yearning for the smallest amount of hope on an institutional level. They also questioned the client on why his order included counselling for the petitioners, pointing out that it might give the impression that people in same‑sex relationship have an issue and hence will have to undergo counselling; it is rather those who find it difficult to understand such a relationship who need it more. The client recollected addressing this thought with the petitioners themselves stating that they both had absolute clarity concerning the relationship and it was to develop that clarity in himself that he wanted them to counsel. The intent was only to obtain an understanding through a professional's lens. He in fact added how mindful he was, when he did not ask the petitioners to attend the second round of counselling in his subsequent order. He reinstated that the overwhelming responses from youngsters initiated him to think how there can be such a level of acceptance if something is considered abnormal by another group of people. It is only recently that young people with the support of informed organisations raise voice against the injustices faced by a queer person. He realised that there is something fundamentally misunderstood by him and part of the society. And what matters more is the wellbeing of the upcoming generations and work must be done for their well‑being as the rigidity held by some people cannot be changed. The client also shared his belief that an institution is something that is supposed to work for the betterment of society and hence is not separate from it. A judge is a public servant and hence the work is directed at the well‑being of society and if that cannot be achieved then the person is unfit to hold such a position. What was also addressed in the session was the pathologisation of any other gender or sexuality that lies outside the binary system. The diagnostic guidelines and interventions suggested were dehumanising. These interventions were built on the false belief that homosexuality is a condition, that the problem was either in the person's genitals or their brain and that it can be cured. Not only the practice is unethical but also extremely detrimental to the physical and psychological health of the individual. The subtle and overt ways in which patriarchy is benefited due to heteronormativity was also looked at. Looking at this case in hand, this becomes evident when the family shows a willingness to accept their daughter had she fell in love with a man and provide him with monetary comfort. They even questioned what they will do with all the property in their daughter's name as there is no male in the family to pass it onto now. It was surprising to them that the property was intended for their daughter and it does not concern whom she chose as a partner.
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Another backward notion that came into the discussion is how an act of sex that involves only penile penetration is recognised as normal and anything else is debased. The client also pointed out the significance of the role of sex in a heterosexual marital relationship and how emotional intimacy and satisfaction derived by both partners are of prime importance. He shared how an unsatisfactory sexual relationship brings about disharmony in married life and wanted to understand how the same works in a same‑sex relationship. The reflection that followed revealed that it is logical to think that predictors of sexual satisfaction remain the same for any orientation, such as lack of open communication, mental health, history of trauma or abuse, and physical factors. However, unique stressors faced by queer couples, such as internalised stigma, invisibilisation, lack of safe space, and limited accessibility to support systems, must be accounted for., The client spoke about his involvement in reading and sometimes adhering to religious and spiritual texts. He recalled a follower who bases his beliefs on the Bhagavata Purana, stating that the purpose of human life is to reach the Supreme or the Atman and that the only way to do that is through procreation, thus claiming that sex should only serve that purpose and any other desire is perverted. He added that several Indian philosophical resources treat desire as an integrative part of life, citing the four Purusharthas—Dharma, Artha, Kama and Moksha—where Kama refers to the sensual aspect, including sexual pleasure. The client noted that he has never come across any verse in the Bhagavad Gita or Bhagavata Purana that condemns homosexuality; they speak of love and integrity as necessities for a healthy relationship without requiring a man and a woman., Towards the end of the session, the client questioned his responsibility and purpose in the case, which helped him move beyond simply stating that the petitioners are adults with the right to choose partners. He expressed gratitude for the institutional power he holds and affirmed that it must be used to correct misperceptions about homosexuality and pave the way forward. He acknowledged that his views may be condemned by some, but believes an increasingly aware and inclusive society will benefit from this work., One of the client’s colleagues mentioned that the client is having a session with a psychotherapist and that various scientific studies exist, hoping that the insights from the session will align with those findings. The client observed that while scholarly articles are easy to quote, personally working through the material and sharing what he has gained will be more relatable and impactful. He described himself as the society with its misconceptions, now engaged in the process of unlearning, and felt responsible for conveying this understanding to the rest of society., An interaction was scheduled with Dr. L. Ramakrishnan, Vice President, SAA THII, Ms. Shanmathi, PCVC, Dr. Trinetra Haldar Gummaraju, a transwoman, digital‑content creator, actor, MBBS intern at Kasturba Medical College, and her mother Ms. Haima Haldar. Dr. Trinetra generously shared her journey and lived experiences, furthering the client’s holistic understanding of the LGBTQIA+ community. During the interaction, Justice Venkatesh requested that Dr. Trinetra share her brief journey. She explained that she was assigned male at birth but, from the age of three or four, identified as a girl, rejecting stereotypical boy colours, toys and games. She noted that most children label gender groups between 18 and 24 months and solidify their own gender identity by age three., At four years old, a group of Hijra individuals visited her home. When she asked about the singing and dancing, her parents sent her away, and her questions were met with hostility and reprimand. She realised that non‑conformity was taboo and that any further expression would be met with hostility from neighbours. She described how, as a child, she was called “point‑five,” meaning half‑man half‑woman, and faced regular beatings, mockery and harassment by teachers and peers., Justice Venkatesh asked whether any external effort attempts to make someone feel homosexual or gender non‑conforming, to which Dr. Trinetra replied that such identities are deeply felt and cannot be changed by external manipulation. She recounted that scientists attempted aversion therapies, including shocks with homosexual pornographic stimuli, chemical castration, electro‑convulsive therapy, and religious treatments, all of which failed. A study by the Kerala Development Society on behalf of the National Human Rights Commission reported that 99 % of transgender persons have faced social rejection, 52 % experience harassment from classmates and 15 % from teachers., The narrative referenced Alan Mathison Turing, an English mathematician and pioneer of computer science, who was prosecuted in 1952 for homosexual acts under the Labouchere Amendment of 1885. He accepted chemical castration with diethylstilbestrol as an alternative to prison and died in 1954 from cyanide poisoning, ruled a suicide. In 2009, British Prime Minister Gordon Brown issued a public apology on behalf of the UK government for the appalling way Turing was treated., It is unfortunate that pseudoscientific conversion therapies continue to be offered to anxious parents of LGBTQIA+ children by quacks and some doctors, often with impunity and sometimes aided by law enforcement. Families also resort to alternative medicine such as Ayurveda, Yoga, Unani, and Homeopathy to ‘treat’ trans and gender non‑conforming people. Religion can become a source of additional violence, with parents forcing exorcisms and other rituals on queer children. Corrective rape of lesbian women and trans‑masculine persons is a brutal outcome of queer phobia, underscoring the need for appropriate criminalisation., When puberty began around age 13‑14, the client found himself attracted to boys and used the internet to discover gender and sexuality. He continued to dress in secrecy, wearing jewellery, make‑up and sarees, which a poorly educated psychiatrist at age ten deemed unnatural and disordered. When his parents finally consulted a psychotherapist, the client’s coming out caused an enormous shock due to the complete lack of education about gender and sexuality. It took his parents ten years to understand and accept that their first‑born son was, in fact, their daughter., It is now recognised that gender identity, gender expression, biological sex and sexual orientation operate independently, and one does not necessarily indicate the other. According to Bruce Bagemihl, author of *Biological Exuberance: Animal Homosexuality and Natural Diversity*, same‑sex behaviour has been documented in over 450 animal species. Many fish species exhibit sequential hermaphroditism, a normal anatomical process, and roughly 65,000 animal species are hermaphroditic. Parthenogenesis, a natural form of asexual reproduction, occurs in species such as the New Mexico whiptail lizard., Draconian legislation like Section 377 once criminalised non‑heterosexual relations, claiming they were against the order of nature. Nature, however, does not maintain caste purity, does not enforce Victorian morality, and has always stood for diversity. The legal framework should therefore follow suit., The client concluded that, in medical college, he recognised himself as a transgender woman with a predominantly heterosexual orientation, explaining his attraction to men. He noted that psychological counselling can help individuals and families accept queer identity, but psychiatry and psychology have historically perpetuated queerphobia. He observed trans‑phobic and homophobic literature in medical textbooks, despite the Medical Council of India’s 2018 Competency Based Undergraduate Curriculum for the Indian Medical Graduate, which was expected to incorporate modern scientific beliefs and avoid pathologising LGBTQIA+ identities., Nevertheless, the current forensic medicine curriculum still describes sodomy, lesbianism and oral sex as sexual offences and labels transvestism as a sexual perversion, despite the Hon ble Supreme Court’s verdicts in *National Legal Services Authority v. Union of India*, *Navtej Singh Johar v. Union of India*, and *Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India*. It is imperative that directions be issued to the National Medical Council and State Medical Councils to remove pathologisation and criminalisation of non‑heterosexual relations, gender non‑conformity, gender incongruence, transgender identity and gender expression from curricula, especially in forensic medicine and obstetrics‑gynecology. Unscientific terms such as “defloration” and the two‑finger test must also be eliminated., When curriculum changes are difficult, medical colleges should collaborate with NGOs and NPOs to inculcate gender and sexuality literacy early in undergraduate training, before outdated information spreads during the four and a half years of MBBS. Failure to do so leads to negligence, with many doctors refusing to treat, examine or operate on LGBTQIA+ persons., Justice Venkatesh acknowledged that discriminating on the basis of gender identity and sexual orientation is absurd and that, when fully supported, there is no difference in capabilities between cis‑heterosexual persons and members of the LGBTQIA+ community., Mrs. Haima Haldar, the mother of a transgender child, stated that parents are often products of their circumstances. Sex education in schools is severely lacking, and parents are rarely literate about gender and sexuality when their child is ready to come out, leading to disastrous outcomes. Natal families can become sites of violence against LGBTQIA+ children, forcing them to flee and encounter queer‑phobic institutions such as law enforcement, shelters and doctors. The nexus of discrimination must be stopped, and chosen families—partners, Hijra‑gharanas and other non‑traditional support systems—should be recognised by law as legitimate., Non‑heterosexual couples must receive state support to enjoy the same privileges as heterosexual couples, including the right to marry, adopt, share and inherit property. An accepting natal family can be the difference between life and death for many queer individuals. A study by the Institute of Mental Health and Neuro Sciences, Bengaluru, found that 50 % of Indian transgender persons attempted suicide at least once before age 20, with risk factors including victimisation, discrimination, bullying, family rejection, intimate partner violence, police harassment and ill‑treatment in health‑care settings. Supportive families dramatically improve physical and mental health outcomes., Mrs. Haldar explained that once she accessed accurate information, acceptance became easy, and that judicial and legislative assistance could reduce excuses and hurdles for families. Parental support can boost self‑esteem and overall development of LGBTQIA+ persons, enabling them to succeed and lead fulfilling lives., Justice Anand Venkatesh listened intently, acknowledging a fundamental flaw in how generations, including his own, grew up believing falsehoods and remaining ignorant of cis‑heterosexual privileges and the pains faced by LGBTQIA+ individuals. He affirmed that listening to lived experiences is a powerful means of understanding queer lives and that the institutions of this country have no right to interfere with aspects of identity that are natural and integral., The client expressed gratitude to Justice Venkatesh for his time and observations, confident in his allyship and support to the LGBTQIA+ community in delivering an order that safeguards the rights and freedoms of this vulnerable population., The session, though arranged for the client’s understanding, functioned as a psycho‑educational experience that cleared many personal misconceptions. Interacting with a transwoman who has broken societal shackles and is becoming a successful medical doctor provided inspiration and support to the broader LGBTQIA+ community., The client reflected that the bench’s involvement of psycho‑education and professional counselling was not an attempt to label homosexuality as a psychological anomaly. The Supreme Court, in *Navtej Singh Johar v. Union of India* (2018) SCC 1, has held that homosexuality is neither unnatural nor a mental disorder. As a matter of judicial discipline, this Court is bound by the Supreme Court’s obiter dicta., Unlike regular litigations, the present case offers the Court an opportunity and responsibility to weigh inclusivity and justice against discrimination rooted in social morality and tradition. The client admitted belonging to the majority of commoners who have yet to fully comprehend homosexuality, acknowledging that ignorance does not justify discrimination., The client took upon himself the duty to deliver justice in its true spirit, cutting across personal prejudices and educating himself so that his ignorance does not interfere with guiding the LGBTQIA+ community toward social justice., Having never personally known homosexual persons, the client realised that understanding their emotions requires stepping into their shoes, something society and his upbringing have traditionally denied., Societal impact shapes our subconscious understanding of relationships, leading us to endorse only those deemed fit by society. As individuals form their own ideas, conflicts with ingrained norms can spark reforms, though historically such conflicts have cost lives., The client described a rapid change in perspective within fifteen minutes of hearing the petitioners describe their love in terms comparable to cis‑heterosexual relationships, prompting him to question the source of conflict., The sole reason for referring the petitioners to counselling was to enable the client to understand the relationship from a professional standpoint. Without this understanding, any final outcome would be half‑baked and ineffective.
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When two persons of the same sex are friends and continue that relationship for their entire life, society does not view anything abnormal in that relationship. No one objects to such a friendship; in fact, it is often encouraged and regarded as one of the greatest relationships between two human beings. The confusion begins when the same two individuals slightly alter their stance and, instead of being just friends, enter into a partnership that is understood as a same‑sex relationship. Live‑in relationships, whether between heterosexuals or homosexuals, have not been given any legislative sanctity so far, and the parties can enter and exit the relationship at any time without legal consequences. Both types of relationships lack legal recognition, but society readily accepts live‑in relationships between cis‑heterosexuals while it is hostile to same‑sex relationships. The real problem, therefore, is not merely the lack of legal recognition but the absence of societal sanction. Change must occur at the societal level, and when complemented by law, it will bring a remarkable shift in societal outlook by recognising same‑sex relationships., For a proper understanding, we can recall how persons with differential abilities and mental illnesses were treated by society in the past, and how societal awakening combined with appropriate legislation brought about a huge change in recognising the rights of such differently abled persons. The issue at hand is very important and requires awakening in society; law by itself may not achieve the desired result. A law cannot be effective without societal acknowledgment, and such awakening will not happen overnight. It requires regular deliberation and must emerge strongly from constitutional institutions. The judiciary, particularly the Supreme Court of India, has a major role to play in spreading awareness and awakening society. It is hoped that the legislature will also show greater interest in this issue, especially as the present generation is increasingly vocal about the need for the LGBTQIA+ community to live peacefully. Until the legislature enacts a law, the LGBTQIA+ community cannot be left in a vulnerable atmosphere without guarantee of protection and safety. This gap is now sought to be filled by issuing guidelines until law takes over and guarantees safety and protection., Before the Supreme Court of India ventures to issue a slew of directions by way of mandamus, it is duty bound to trace the constitutional rights and their guarantees that are available to the petitioners and all those belonging to the LGBTQIA+ community. The Supreme Court of India cannot proceed to issue directions to the State and its instrumentalities unless such directions are based on legal rights. In view of this, the Supreme Court of India proceeds to trace the relevant provisions under the Constitution of India, 1950 (hereinafter referred to as the Constitution) which guarantee such a right., Article 14 of the Constitution embodies a guarantee that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. While the expression \equal protection of the laws\ is drawn from the Fourteenth Amendment of the United States Constitution, the expression \equality before the law\ has its origins in the concept of the rule of law formulated by Professor A.V. Dicey. This was pointed out by Chief Justice Rajamannar in the Full Bench judgment of the Supreme Court of India in V.G. Row v. State of Madras reported in AIR 1951 Madras 147. Referring to Article 14, the learned Chief Justice observed that the article relates to two different concepts: equality before the law and equal protection of the laws. Two obligations are cast upon the State: to secure to a person equality before the law and also to give equal protection of the laws to the person., The expression \equality before the law\ is not used in the American Constitution, though \equal protection of the laws\ occurs in the Fourteenth Amendment. The expression \due process of law\ is used in a more elastic sense to include both equality before the law and equal protection of the laws. Professor Dicey, in his *Law of the Constitution*, treats equality before the law as one of the three meanings of the expression \rule of law\ which formed the fundamental principle of the English Constitution. He defines it as the equal subjection of all classes to the ordinary law of the land administered by ordinary courts; the rule of law excludes any exemption of officials or others from the duty of obedience to the law that governs other citizens or from the jurisdiction of ordinary tribunals., Having thus declared a general guarantee of equality in Article 14, the Constitution particularises the equality principle in the two succeeding provisions, Articles 15 and 16, which are species of the genus contained in Article 14. Article 16 is not relevant for the present purpose. Article 15(1) embodies a constitutional injunction against the State forbidding any discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them., For quite some time, the law required a complainant to plead and establish that the discrimination complained of was only on account of any of the grounds set out in Article 15(1). In particular, the word \sex\ in this article was construed to mean gender simpliciter, i.e., male and female. There exists, in law, a distinction between sex and sexual orientation, as was pointed out by the Honorable Supreme Court of India in NALSA v. Union of India reported in 2014 (5) SCC 438. The Court observed that sexual orientation refers to an individual's enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender‑variant people with varied sexual orientation, and it may or may not change during or after gender transition. Gender identity and sexual orientation are different concepts. Each person's self‑defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self‑determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity., Soon after the First War of Indian Independence in 1857, Queen Victoria issued a proclamation in her capacity as the Queen Empress of India on 1 November 1858. The proclamation contained an early version of the equality guarantee, stating that subjects of whatever race or creed should be freely and impartially admitted to offices in her service, qualified by education, ability and integrity. After Queen Victoria, her successor King Edward VII reiterated the guarantee of equality to the subjects of the Crown. His proclamation dated 2 November 1908 declared that no man among his subjects had been favoured, molested or disquieted by reason of his religious belief or worship, and that all men had enjoyed protection of the law administered without disrespect to customs and ideas rooted in civilisation., The next development was the passing of the Government of India Act by the British Parliament in 1935. Section 298(1) of that Act provided that no subject of His Majesty domiciled in India shall, on grounds only of religion, place of birth, descent, colour or any of them, be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India. A similar guarantee against sex discrimination was contained in Section 275 of the Government of India Act, 1935. The Statutory Commission, which reported on the draft of the Act, observed that abstract declarations are useless unless there exists the will and the means to make them effective., Article 15(1) of the Constitution largely captures Section 298 of the Government of India Act, 1935, with the important addition of sex as a prohibited ground of discrimination. The inclusion of the word \only\ in Draft Article 9 (present Article 15) attracted criticism from several members of the Constituent Assembly. The Constituent Adviser, Dr. B.N. Rau, argued that retaining the wording would prevent discrimination against South African Europeans in India on the ground of race alone, a reasoning later judged inaccurate because the draft applied only to citizens, not foreigners., In construing Section 298(1) of the Government of India Act, 1935, the Privy Council in *Punjab Province v. Daulat Singh* reported in AIR 1946 PC 66 laid down the test that the question is not whether the impugned Act is based only on one or more of the specified grounds, but whether its operation may result in a prohibition only on those grounds. The proper test is to ascertain the effect of the impugned Act on the personal right conferred by the sub‑section; if the effect involves an infringement of that right, the object of the Act does not obviate the prohibition., After the advent of the Constitution, the construction of Article 15(1) came up for consideration before the Calcutta High Court in *Sri Mahadeb Jiew v. Dr. B. B. Sen* reported in AIR 1951 Cal 563. The Court observed that the word \only\ in Article 15(1) is of great importance; the impugned law must be shown to discriminate because of sex alone. If other factors besides sex are involved, the discrimination does not fall within Article 15(1). The test and construction laid down in *Daulat Singh* were approved by the Honorable Supreme Court of India in *State of Bombay v. Bombay Educational Society* reported in AIR 1954., A Division Bench of the Punjab and Haryana High Court in *Raghubans Saudagar Singh v. State of Punjab* reported in AIR 1972 P&H 117 observed that the Constitution bars discrimination on the ground of sex alone. The language of Article 15(1) attaches salient significance to the word \only\. Discrimination on the ground of sex alone is prohibited, but when sex is combined with a variety of other factors that form a reasonable nexus for the classification, the bar of Article 15(1) is not attracted., When things stood thus, global jurisprudence on sex, sexual orientation and gender identity witnessed a sea change. In the Canadian case *James Egan v. The Queen* reported in 1995 2 SCR 513, two homosexuals challenged the Old Age Security Act. Section 15 of the Canadian Charter declares that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, including on the basis of sexual orientation. The Supreme Court of Canada held that sexual orientation is more than a status; it is demonstrated in an individual's conduct by the choice of a partner, and therefore deserves protection., The European Parliament, in its legislation prohibiting discrimination on the basis of sexual orientation, specifically sought to address the discrimination faced by homosexuals not only as individuals but as couples. The resolution on equal rights for homosexuals and lesbians in the European Community (A3‑0028/94) confirms that homosexuals, whether as individuals or couples, form an identifiable minority that has suffered serious social, political and economic disadvantage., In South Africa, Section 9(3) of the Constitution specifically listed sexual orientation as a prohibited ground of discrimination. In *National Coalition for Gay and Lesbian Equality v. The Minister of Justice* reported in 1998 ZACC 15, the Constitutional Court of South Africa outlawed the offence of sodomy as violative of Section 9(3), observing that the concept of sexual deviance needed to be reviewed and that the law must acknowledge the variability of human beings and affirm equal respect for all., Even in the United Kingdom, there was a conscious break from Victorian puritanism when, in *Ghaidan v. Godin Mendoza* reported in 2004 UKHL 30, the House of Lords upheld the judgment of the Court of Appeal holding that discrimination based on sexual orientation was unacceptable. In 2006, a distinguished group of human‑rights experts assembled at Yogyakarta in Java and drafted the Yogyakarta Principles, which affirm that all human beings are born free and equal in dignity and rights, and that persons of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights. The principles call on States to embody universality, interrelatedness, interdependence and indivisibility of human rights in their legislation, to amend discriminatory laws, to undertake education and awareness programmes, and to ensure equal and effective protection against discrimination on the basis of sexual orientation or gender identity., Given the significant developments across the globe, it was only a matter of time before interpretive tensions surrounding the expression \grounds only of\ in Article 15 of the Constitution would appear before Indian courts. Could it still be successfully maintained that the prohibited classification on the ground of sex in Article 15(1) did not and could not include sexual orientation?, The first salvo was fired in *Naz Foundation v. Government of the NCT of Delhi* reported in 2010 Cr LJ 94, where the constitutional validity of Section 377 of the Indian Penal Code, 1860 was questioned before a Division Bench of the Delhi High Court. The High Court declared that Section 377, insofar as it criminalised consensual sexual acts of adults in private, violated Articles 21, 14 and 15 of the Constitution. Taking a cue from the Canadian Supreme Court decision in *James Egan*, the Court held that sexual orientation is a prohibited ground analogous to sex in Article 15(1). Chief Justice A.P. Shah of the Delhi High Court stated that sexual orientation is a ground analogous to sex and that discrimination on that basis is impermissible, even on the horizontal application of rights under Article 15. The Court identified personal autonomy as the golden thread running across all prohibited grounds in Article 15., The decision was taken on appeal before the Honorable Supreme Court of India in *Suresh Kumar Kaushal v. Naz Foundation* reported in 2014 (1) SCC 1, where the Supreme Court reversed the Delhi High Court decision without commenting on the High Court's interpretation of Article 15. Around the same time, in *NALSA v. Union of India* reported in 2014 (5) SCC 438, a two‑judge bench of the Supreme Court examined a grievance of the transgender community. The Court, after a careful appraisal of global jurisprudence and the Yogyakarta Principles, held that Articles 14, 15, 16, 19 and 21, although gender‑neutral in language, encompass hijras and transgender persons. It declared that gender identity is an integral part of sex and that no citizen can be discriminated against on the ground of gender identity, including those who identify as third gender., In view of the observations of the two‑judge bench, review petitions were filed to re‑examine the law laid down in *Suresh Kumar Kaushal*. These review applications were placed before a Constitution Bench in *Navtej Singh Johar v. Union of India* reported in 2018 (1) SCC 791. The Constitution Bench of the Supreme Court of India overruled the decision in *Suresh Kumar Kaushal* and approved the decision of the Delhi High Court in *Naz Foundation*, thereby affirming that sexual orientation is a prohibited ground of discrimination under Article 15 of the Constitution.
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Adverting to Article 15(1) of the Constitution and the formalistic interpretation of the expression on grounds only of Dipak Misra, Chief Justice observed that this formalistic interpretation of Article 15 would render the constitutional guarantee against discrimination meaningless. For it would allow the State to claim that the discrimination was based on sex and another ground (sex plus) and hence outside the ambit of Article 15. Latent in the argument of the discrimination are stereotypical notions of the differences between men and women which are then used to justify the discrimination. This narrow view of Article 15 strips the prohibition on discrimination of its essential content. It fails to take into account the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio‑political and economic context. For example, a rule that people over six feet would not be employed in the army would be able to stand an attack on its disproportionate impact on women if it was maintained that the discrimination is on the basis of sex and height. Such a formalistic view of the prohibition in Article 15 rejects the true operation of discrimination, which intersects varied identities and characteristics., In her concurring judgment, Justice Indu Malhotra rightly noticed that the elements running across the prohibited grounds in Article 15(1) of the Constitution were those over which the person has no control. In other words, they are what Professor Robert Wintemute (Sexual Orientation and Human Rights, Oxford University Press, 1995) termed immutable characteristics. Justice Malhotra reasoned that any discrimination based on these grounds would undermine the personal autonomy of the individual. The learned judge also held that the word sex is not merely restricted to the biological attributes of the individual but also their sexual identity and character as well as sexual orientation (see paragraph 638.2 of the report). In his concurring judgment Justice Chandrachud traced the protection to the constitutional values of liberty, dignity, autonomy and privacy guaranteed under Article 21 of the Constitution. The learned judge pointed out that the right to privacy is intrinsic to liberty, central to human dignity and the core of autonomy. These values are integral to the right to life under Article 21 of the Constitution. The Court concluded that a meaningful life is a life of freedom and self‑respect and nurtured in the ability to decide the course of living., After the decision in Navtej Singh Johar (cited supra), it is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals complete autonomy over the most intimate decisions in their personal life, including their choice of partners. Such choices are protected by Article 21 of the Constitution as the right to life and liberty encompasses the right to sexual autonomy and freedom of expression. That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. Lesbian, gay, bisexual, transgender, queer, intersex and other persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof. This right and the manner of its exercise are constitutionally protected under Article 21 of the Constitution. Furthermore, the enactment of the Transgender Persons (Protection of Rights) Act, 2019 is a clear pointer that Parliament has recognised varying forms of sexual identity. This is clear from the definition of transgender in Section 2(k) which is defined to mean a person whose gender does not match with the gender assigned to that person at birth and includes trans‑man or trans‑woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender‑queer and person having such socio‑cultural identities as kinner, hijra, aravani and jogta. Under these circumstances, the Supreme Court of India, as the sentinel on the qui vive, must exercise its jurisdiction to protect the rights of the petitioners, which are constitutionally guaranteed under Articles 14, 15 and 21., Before rounding out the discussion, it is necessary to notice a recent decision of the United States Supreme Court in Bostock v. Clayton County, Georgia reported in 2020. Title VII of the Civil Rights Act, 1964 makes it unlawful for an employer to refuse to hire or discharge an employee or to otherwise discriminate against an individual because of, inter alia, sex. The argument of the employer before the Supreme Court was predictable enough. The employers turned to Title VII's list of protected characteristics race, colour, religion, sex, and national origin. Because homosexual and transgender status cannot be found on that list and because they are conceptually distinct from sex, the employers reasoned, they are implicitly excluded from Title VII's reach. Put another way; if Congress had wanted to address these matters in Title VII, it would have referenced them specifically., Rejecting these arguments, the Supreme Court of India made the following pertinent observations: The statute's message for our cases is equally simple and momentous: an individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but‑for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalises a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we have seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a canon of donut holes, in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. Sexual harassment is conceptually distinct from sex discrimination, but it can fall within Title VII's sweep (Oncale, 523 United States at 79‑80). Same with motherhood discrimination (Phillips, 400 United States at 544). Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them., The aforesaid discussion would demonstrate that the time‑worn aids of literal and pedantic construction which plagued the early jurisprudence of Article 15 of the Constitution no longer hold sway today. The grounds enumerated in Article 15 of the Constitution are not water‑tight compartments to be viewed divorced from discrimination which is the sheet anchor of the provision. The grounds are merely instruments to find and eliminate discrimination and are, therefore, a means to an end. Discrimination is not a self‑referencing concept. A meaningful attempt to identify and eliminate discrimination must necessarily involve the identification and protection of the constitutional values of personal autonomy, dignity, liberty and privacy., The discussion supra leads the Supreme Court of India to the final portion of this judgment, namely, framing of guidelines and issue of directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life chosen by them. The Court expects the respective departments, authorities and institutions to implement these guidelines in letter and spirit not for the sake of complying with a judicial fiat but to ensure that society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of society., The Supreme Court of India proceeds to issue the following interim guidelines and directions: A. The police, on receipt of any complaint regarding girl, woman or man missing cases which upon enquiry or investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements close the complaint without subjecting them to any harassment. B. The Ministry of Social Justice and Empowerment shall enlist Non‑Governmental Organizations including community‑based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such organisations along with the address, contact details and services provided shall be published and revised periodically on the official website. Such details shall be published within eight weeks from the date of receipt of copy of this order. C. Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted organisations for safeguarding and protecting their rights. D. The concerned organisation in consultation with the Ministry of Social Justice and Empowerment shall maintain confidential records of such persons who approach the enlisted organisations and the aggregate data shall be provided to the concerned Ministry bi‑annually. E. Such problems shall be addressed with the best‑suited method depending on the facts and circumstances of each case, be it counselling, monetary support, legal assistance with the support of the District Legal Services Authority, or to co‑ordinate with law enforcement agencies about offences committed against any persons belonging to the LGBTQIA+ community. F. With specificity of issue of accommodation, suitable changes are to be made in existing short‑stay homes, Anganwadi shelters and Garima Greh (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities; besides, it will provide support for capacity‑building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community who require shelters and/or homes. The Ministry of Social Justice and Empowerment shall make adequate infrastructural arrangements in this regard within a period of twelve weeks from the date of receipt of copy of this order. G. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelising them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and Departments shall endeavour to devise such measures and policies. H. For the sake of creating awareness, the Court suggests the following sensitisation programmes to be conducted by the concerned Ministry of the Union or State Government(s). This list is only indicative and not exhaustive., The issue involved in the present writ petition requires regular monitoring and follow up with various concerned departments to ensure that the directions issued by the Supreme Court of India are executed and enforced. In view of the same, the Court is inclined to keep this writ petition pending and issue continuing mandamus from time to time after hearing the parties concerned., Post this case on 31.08.2021, for passing further orders, the learned Advocate General representing the State and other State Government Departments, the State Public Prosecutor representing the police and the learned Additional Solicitor General representing the Union of India and other Central Government Departments and Institutions shall ensure that the concerned departments file their reports on the steps and measures taken by them to implement the interim directions issued by the Supreme Court of India., Commissioner of Police, Greater Chennai Police, No. 132, Commissioner Office Building, E.V.K. Sampath Road, Vepery, Chennai‑600007; Commissioner of Police, Madurai, Alagar Kovil Road, Madurai‑625002; Inspector of Police, Thallakulam Police Station, Madurai; Inspector of Police, Avaniyapuram Police Station, Madurai; Secretary to Government, Home Department, Government of Tamil Nadu, Fort St. George, Chennai‑600009, Tamil Nadu, India; Member Secretary, Tamil Nadu State Legal Services Authority, North Fort Road, High Court Campus, Chennai‑600104; Secretary to Government, Ministry of Law, Government of Tamil Nadu, Fort St. George, Chennai‑600009, Tamil Nadu, India; Secretary, Government of India, Ministry of Social Justice and Empowerment, Shastri Bhavan, Dr. Rajendra Prasad Road, New Delhi‑110001; Director, Social Justice and Empowerment, Shastri Bhavan, Dr. Rajendra Prasad Road, New Delhi‑110001; Chairman, National Medical Commission, Dwaraka, New Delhi‑110077; Indian Psychiatric Society, Plot 43, Sector 55, Gurugram, Haryana, India, Pin 122003; Member Secretary, Rehabilitation Council of India, B‑22, Qutub Institutional Area, New Delhi‑110016; Joint Secretary, Department of Higher Education, Government of India, 122‑C, Shastri Bhawan, New Delhi‑110001; Joint Secretary, Department of School Education and Literacy, 217‑C, Shastri Bhawan, New Delhi‑110001; Secretary to Government, School Education Department, Government of Tamil Nadu, Fort St. George, Chennai‑600009, Tamil Nadu, India; Secretary to Government, Higher Education Department, Government of Tamil Nadu, Fort St. George, Chennai‑600009, Tamil Nadu, India; Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi‑110; All India Council for Technical Education, 7th Floor, Chandralok Building, Janpath, New Delhi‑110000; Director, National Council of Educational Research and Training, Sri Aurobindo Marg, New Delhi; Secretary to Government, Union of India, Ministry of Health and Family Welfare, Nirman Bhavan, Near Udyog Bhavan Metro Station, Moulana Azad Road, New Delhi‑110001.
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WP.Nos.29203, 29204 & 29205 of 2023 Reserved on: 21.12.2024 Pronounced on: 06.03.2024 WP.Nos.29203, 29204 & 29205 of 2023 & WM P.Nos.29853, 31023, 31025 & 31026 of 2023 WP.No.29203 of 2023 Kishore Kumar Petitioner 1. P. K. Sekar Babu, son of P. Krishnasamy, Honourable Minister for Hindu Religious and Charitable Endowments, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600009 2. The Secretary, Tamil Nadu Legislative Assembly, Secretariat, Fort St. George, Chennai-600009 (second respondent amended vide this order) Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Quo Warranto calling upon the first respondent herein to show cause under what authority of law he is holding the post of the Minister of the Tamil Nadu State and also as a Member of Legislative Assembly., WP.No.29204 of 2023 V. P. Jayakumar Petitioner son of S. K. Andimuthu, Member of Parliament, No.3/125, Mariamman Koil Street, Vellur Village & Post, Perambalur-621104. 2. The Secretary, Lok Sabha, Parliament House, New Delhi-110003 Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Quo Warranto calling upon the first respondent herein to show cause under what authority of law he is holding the post of Member of Parliament., WP.No.29205 of 2023 T. Manohar Petitioner 1. Udhayanidhi Stalin, Honourable Minister for Youth Welfare and Sports Development, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600009 2. The Secretary, Tamil Nadu Legislative Assembly, Secretariat, Fort St. George, Chennai-600009 (second respondent amended vide this order) Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Quo Warranto calling upon the first respondent herein to show cause under what authority of law he is holding the post of the Minister of the Tamil Nadu State and also as a Member of Legislative Assembly., Case Nos. For Petitioners For Respondents WP.No.29203 of 2023 Mr. G. Karthikeyan for Ms. A. Jagadeswari Mr. N. Jothi, Senior Counsel for Mr. K. Chandru (for first respondent) Mr. R. Shunmugasundaram, Additional Advocate General Assisted by ..., S.No. Table of Contents Page Number I Introduction and brief description of parties II Background including relevant extract of the speeches/statements (referred to in common as statements/offending statements) III (i) Maintainability on the anvil of non‑joinder and mis‑joinder of necessary parties – Rival contentions and conclusion (ii) Locus of Petitioners to have filed these writ petitions – Rival contentions and conclusion (iii) Maintainability to be tested only on the aspect of eligibility qua qualification – Rival contentions and conclusion (iv) Is the evidence filed in line with the provisions of Section 65B of the Evidence Act – Rival contentions and conclusion IV Rival contentions and conclusion on (a) whether the offending speeches are in tune with the Constitutional scheme, or do they amount to misinformation and hate speech (b) whether a Writ of Quo Warranto will lie in view of the prevailing Constitutional scheme (i) Petitioners' Submissions (ii) Reply of the Respondents Conclusions on the question of whether the offending statements amount to misinformation and hate speech Conclusions on the question of law On the judgment in Re. Kaushal Kishore., These Writ Petitions are filed by three individuals seeking a Writ of Quo Warranto calling upon the first respondent in each petition to show cause under what authority of law they are holding constitutional posts in the Government of the State of Tamil Nadu. The first respondent in Writ Petition No. 29203 of 2023 is a Member of Legislative Assembly holding the post of Minister for Hindu Religious and Charitable Endowments. The first respondent in Writ Petition No. 29204 of 2023 is a Member of Parliament. The first respondent in Writ Petition No. 29205 of 2023 is a Member of Legislative Assembly holding the post of Minister for Youth Welfare and Sports Development. The first respondents in the three writ petitions are collectively referred to as individual respondents, and separately by name., Heard the detailed submissions of Mr. T. V. Ramanujan, Mr. G. Rajagopalan and Mr. G. Karthikeyan, learned Senior Counsels appearing on behalf of Ms. A. Jagadeswari, learned counsel on record for the petitioners in the Writ Petitions, Mr. N. Jothi, learned counsel for Mr. P. K. Sekar Babu (first respondent) in Writ Petition No. 29203 of 2023, Mr. Viduthalai, learned Senior Counsel appearing for M/s. Wilson Associates for Mr. A. Raja (first respondent) in Writ Petition No. 29204 of 2023, P. Wilson, learned Senior Counsel appearing for M/s. Wilson Associates for Mr. Udhayanidhi Stalin (first respondent) in Writ Petition No. 29205 of 2023, Mr. R. Shunmugasundaram, learned Advocate General, assisted by Mr. K. M. D. Muhilan, learned Additional Government Pleader for the Special Secretary, Tamil Nadu Legislative Assembly (second respondent) in Writ Petitions Nos. 29203 and 29205 of 2023 and Mr. K. Ramanamurthy, learned Central Government Standing Counsel for the Secretary, Lok Sabha (second respondent) in Writ Petition No. 29204 of 2023., The petitioners are aggrieved by the participation of two of the individual respondents in a convention entitled Sanatana Ozhippu Manadu, meaning Convention for the destruction of Sanatana Dharma, conducted by the Tamil Nadu Progressive Writers and Artists Association, a wing of the Communist Party of India, in Chennai on 02 September 2023, and their statements making reference to, and comparing Sanatana Dharma to virulent diseases. A copy of the invitation supplied in the course of the hearing reveals that the purpose of the convention was to deride Sanatana Dharma and discuss the continuous deleterious impact that, according to the individual respondents, it has had on society., The purpose of the convention was to deliberate on strategy for the destruction (Ozhippu) of Sanatana Dharma. Mr. P. K. Sekar Babu was present at the convention but did not deliver a speech. His participation was questioned and he explicitly chose to support the cause espoused in the convention in a press conference conducted on 06 September 2023. Mr. Udhayanidhi Stalin delivered a speech at the convention on 02 September 2023. Mr. A. Raja was a speaker in a meeting conducted on 02 September 2023 under the aegis of the Tamil Nadu Murpokku Ezhuthalar Kalaignargal Sangam entitled Sanatana Ozhippu Manadu., Speech of Mr. Udhayanidhi Stalin: I would like to express my salutations and gratitude to the organizing committee of the Tamil Nadu Progressive Writers and Artists Association for giving me the opportunity to deliver the felicitation speech at this Sanatana Abolition Conference. The title of this conference is very apt. My congratulations to you for calling it Sanatana Abolition Conference instead of Anti‑Sanatana Conference. Some things must be abolished and cannot be resisted. We should not resist mosquitoes, dengue, fever, malaria, corona and so should we eradicate them. That is how this Sanatana is. The first thing we need to do is to eradicate Sanatana rather than oppose it. Therefore, you have put the most suitable topic for this conference, so my best wishes for it. What is Sanatana? The name Sanadhanam is derived from Sanskrit. Sanatanam is against equality and social justice. Sanatana means fixed and unchangeable. It means that no one can question it. The Communist movement and Dravida Munnetra Kazhagam have the principle that everything must be changed, nothing is fixed, we must question everything. The Dravidian model of government is implementing schemes that uplift the people. But the BJP government is trying to push our people backwards. Manipur is ruled by BJP. It has divided people into two groups in their own state and fueled riots. This is Sanatana. Riots have been going on there for the past five months. More than two hundred people have been killed in the riots. Then our Chief Minister invited the athletes there to train in Tamil Nadu saying that I will take care of you. Eighteen swordsmen came here and trained for twenty days. Our Chief Minister provided food and accommodation for them here. Then they congratulated our Chief Minister that even in our state they do not treat us like this. This is Dravidianism. Sanatana is spreading false news and inciting riots. A few months ago, the media spread false news that the North State workers were being killed here. But our Chief Minister handled it very well. Our officers went to Bihar and the officials there came here and inspected. Our Chief Minister shattered the fake news of fascism by ensuring that no untoward incident took place anywhere. We come up with the necessary programs for our children to study but fascists come up with many schemes to make sure that children are not allowed to study. Sanatana's plan is that we should not study. In the context of this war between Sanatana and Dravidianism, the Tamil Nadu Progressive Writers and Artists Association is organizing the Sanatana Abolition Conference very well. This is a very necessary conference, you are holding this conference once a year, but that is not enough, you should hold it as often as possible throughout the year, I request. Some of the Sanatanists will surely get upset while watching this conference. Let them burn, you must hold this conference continuously. The conference will start at 8.30 a.m. today and will be held for the entire day. Many people here are going to speak on the topic against Sanatana. I convey my congratulations and best wishes to all those who attended here. We must not talk here and go away like that. We have to take our ideas to the people., Speech of Mr. A. Raja: A huge gathering was held in Puducherry yesterday to inaugurate the statue of Kalaignar. I have posted all my condemnation there, but they are coming on social media, and I will address you briefly then leave. All those who spoke before me said that the speech made by Tamil Nadu Minister brother Udhayanidhi has become a topic of discussion across India today. This program also answers the topic of discussion because Sanatana and Vishwakarma are not different. But I find it strange that Udhayanidhi Stalin said it very gently, that it should be eradicated like malaria and dengue. Malaria and dengue do not have a social stigma that society looks at as disgusting. To compare Sanatana with abomination, there was once leprosy and HIV. Therefore, Sanatana should be seen as a miserable disease. The Prime Minister says to follow Sanatana Dharma. If he had followed it, he would not have travelled abroad so much because a good Hindu should not cross the ocean. Your job is to roam around. What a scoundrel it is to say that a person who goes around in defiance of Sanatana should save Sanatana. For this scoundrel, call the cabinet today and talk well about Sanatana and spread it. I have challenged the Prime Minister and Amit Shah yesterday. If you want to know about the four varnas and Sanatana or if you want to have a discussion, I will say on behalf of the Dravida Munnetra Kazhagam with the permission of our Chief Minister. Mr. Modi, Mr. Amit Shah, gather ten lakh people or one crore people in Delhi. Make your Shankaracharya sit above everyone else. Bring all your weapons, bow, arrow, knife, dagger and keep everything close at hand. I come with only Periyar and Ambedkar books. The debate is in Delhi because the Prime Minister and all of you are Maha Vishwaguru, Jagat Guru in your view. I am just a Panchama Shudra. I am coming to debate but I do not know Hindi. I only speak in English. I cannot do anything if you do not know English. So I am saying on this stage that Udhayanidhi's speech is very soft and if you ask me, I will speak even more harshly. So if there is anyone among you to discuss Sanatana, I challenge you in front of Tamil Nadu leaders, mark the date anywhere in Delhi, I am ready for Raja to come. Subbiah said beautifully, Their job is to take this and add it to the caste. If we take it a step further, Ambedkar has said that in every country there is a carpenter and in every country there is a scavenger and in every country there is a barber. If you go to London, you have a barber shop and a goldsmith shop. They are not caste. A society needs separation of occupations. I had even spoken yesterday that if I had to put cotton on my shirt and weave myself on my shirt and sew it myself, we would all have to go around naked. Cannot do that. Social Harmony requires another to work to fulfil our needs. Dr. Ambedkar meticulously studied that the religion here had done the strange thing that this division of labour was to be done in foreign countries and that this was what his son should do by tying it to a caste and clan occupation, in which he said that the ascending order of reference, defending order of contempt. When the caste is divided like that, the upper caste is a good job and the lower one is a socially disgraced job. He said that this religion is the only religion in the world that inculcates this technique. So it is not just their job here to save casteism. Their job is not just to save the industry, their aim is to keep it as a Hindu Rashtra. It will not be if everyone does all the business. So even Hitler did not do this delicate work, they are doing it. We have a compelling duty to overcome this and only we can. In another way, I want to thank the teacher K. Veeramani who has started here and all our struggle has ended here in South India. First of all I said that Sanatana Hindu is different from ordinary Hindu. They have translated it into twelve languages. That A. Raja divided Hinduism. Now he has started in Tamil Nadu, Karnataka, Kerala, you were saying Shudra. Now the whole of North India is on fire. They are going to call it Bharat. I see this platform as the starting point for a whole socialist secular country over the next ten years, not only in the sense of the Constitution, but also as a starting point for something that will consciously create it. I salute all of you and say that this struggle should continue. They have said that the government will also stand by you. I am saying good‑bye to you only by conveying this message to you. Thank you., Statement of Mr. P. K. Sekar Babu: Though I had not spoken at the convention, I expressed solidarity with the sentiments expressed by Mr. Udhayanidhi Stalin and with the theme of the convention in a press meet. As far as we are concerned, Hindu religion and Sanatana Dharma can be equated to a banana. If Hindu religion is the fruit, Sanatana Dharma is the skin of the fruit. The fruit can be eaten only after discarding the skin. Our policy is to protest against the unnecessary portions of Sanatana Dharma. It is not our policy to militate against or destroy those who refer to Sanatana. Our Honourable Minister Udhayanidhi Stalin has explained this clearly. He has settled this dispute once and for all. As far as we are concerned, it is the principles of Sanatana we object to, and we say they should be destroyed; we have never said that Sanatana itself must be destroyed. When asked about the matter pending in the High Court, I said the matter was subjudice and I am being represented by counsel in the High Court. Any action required would be contemplated at a later stage. When asked if I regret having participated in the Sanatana Dharma conference, I said that as far as the Dravida Munnetra Kazhagam is concerned, once a move is taken, they will not retract or take a step back. Since the matter is subjudice, I do not wish to elaborate further. Further actions will be taken once the matter is decided., Preliminary objections to maintainability are raised by Mr. Wilson who argues that the writ petitions are not maintainable for mis‑joinder and non‑joinder of necessary parties. The second respondent in Writ Petition Nos. 29203 and 29205 of 2023 is the Special Secretary, Tamil Nadu Legislative Assembly, Secretariat, Fort St. George, Chennai-600009, whereas the appropriate authority to have been arrayed should have been the Secretary of the Legislative Assembly., Reliance is placed on a judgment of the Honourable Supreme Court in the case of Chief Conservator of Forests, Government of Andhra Pradesh v. Collectors and others. The learned Advocate General supports the argument stating that the proper authority to have been arrayed would have been the Secretary, as Head of the Legislative Assembly. According to the respondents, this is not a curable or formal defect but amounts to mis‑joinder and non‑joinder of necessary parties that goes to the root of the matter. The petitioners, for their part, state that the array is liable to be amended and have filed an application in Writ Miscellaneous Petition No. 21023 of 2023 seeking amendment of the array of the second respondent in Writ Petition No. 29205 of 2023 from Special Secretary to Secretary., It is true that the array of the second respondent in Writ Petition Nos. 29203 and 29205 of 2023 is Special Secretary. The learned Advocate General circulates S.O. (Ms.) No. 23 dated 02 March 2018, a Special Order issued by the Legislative Assembly Secretariat. That order notifies a rule to the effect that the rules applicable to the holders of the permanent post of Secretary, Legislative Assembly, Secretariat (Category I Class I) shall apply to the holder of the post of Special Secretary in the Tamil Nadu Legislative Assembly Secretariat service, subject to modifications set out therein. The rule has been in force since 14 December 2017. The Special Order clarifies that the post of Special Secretary is a temporary post unlike that of the Secretary, a permanent post. The roles and responsibilities of the Special Secretary are different and distinct when compared with those of the Secretary. Hence, the proper party to be arrayed ought to have been Secretary, Tamil Nadu Legislative Assembly, Secretariat., In the case of Chief Conservator of Forests, Government of Andhra Pradesh (supra), the Honourable Supreme Court considered a challenge to maintainability on the ground of mis‑joinder/non‑joinder of necessary parties. The appeal had been filed from a judgment of the Andhra Pradesh High Court. The petitioners sought a declaration of title with other reliefs including rendition of accounts. Appeals had been filed by the Land Acquisition Officer that resulted in adverse orders, and further appeals were filed before the Supreme Court. The respondents in the appeals raised a preliminary objection on the ground that the Government or the State shall sue or be sued only in the name of the State. They relied on Article 300 of the Constitution, Section 79 of the Code of Civil Procedure and Order 27 Rule 1 of the Code of Civil Procedure. The defence put forth that the Chief Conservator of Forests had obtained specific orders in regard to the filing of the appeals and thus the appeals should be deemed to have been filed by the Government notwithstanding that it was the Chief Conservator of Forests that was the appellant. After considering the matter, the Division Bench accepted the argument on maintainability holding that it was the State that ought to have filed the appeals in its own name., The Court distinguished between mis‑description or misnomer of a party and mis‑joinder or non‑joinder of a party. If it is a case of mis‑description, the Court may permit correction of the cause title so that there is proper description of the parties before the Court. The specific question was whether the array of Chief Conservator of Forests was a mis‑description for the State of Andhra Pradesh or whether it would amount to a case of non‑joinder of the State of Andhra Pradesh, a necessary party. Order 1 Rule 9 of the Code of Civil Procedure mandates that no suit should be defeated by the mere reason of mis‑joinder or non‑joinder of parties, but the proviso clarifies that nothing in that rule would apply to non‑joinder of a necessary party., In the present case, the Special Order circulated by the learned Advocate General makes it clear that the relief sought by the petitioners, even if granted by the Court, could be practically enforceable only if the proper official respondent had been arrayed. The Special Order also makes apparent that the posts of Secretary and Special Secretary are not interchangeable and their roles and responsibilities are different., The petitioners have filed amendment petitions seeking correction in the array of parties. In the decision in the case of Chief Conservator of Forests, Government of Andhra Pradesh (supra), the Supreme Court, while accepting the preliminary contest, observed that the High Court could have, had it deemed fit, added the State of Andhra Pradesh as a party. However, the High Court proceeded as though the State of Andhra Pradesh had been the petitioner, which the Supreme Court held was erroneous., Thus, at this initial stage of litigation, it is for this Court to decide whether the proper party should be arrayed to regularize the litigation. While the proper authority, the Secretary, must be arrayed as a party, the error committed in arraying the Special Secretary is not fatal to the cause of the petitioners and can be corrected., Rule 3 of the Madras High Court Writ Rules, 2021 sets out the form of writ petitions requiring, at paragraph 2(c), that the writ petition shall contain the name, description and the address of the petitioner and the respondent. The miscellaneous petitions seeking amendment of cause title are thus ordered and the Registry is directed to amend the cause title to the writ petitions, such that the second respondent in Writ Petition Nos. 29203 and 29205 of 2023 shall read Secretary, Tamil Nadu Legislative Assembly, Secretariat, Fort St. George, Chennai 600009., Maintainability in the context of locus: Respondents argue that the writ petitions are filed by officials of the Hindu Munnani, are politically motivated and thus not maintainable. The petitioners, while acknowledging that they are members/office bearers of the aforesaid political party, retort that there is no bar in law against members of political parties engaging in litigation of the present nature., A writ petition with the prayer for Quo Warranto assumes the nature of a public interest litigation. The respondents argue that the petitioners being members of a political party, these writ petitions are nothing but a political ploy. This submission was raised in the case of Hardwari Lal v. Ch. Bhajan Lal, Chief Minister, Haryana, and decided as follows: The question whether the petitioner has locus standi to approach this Court for the relief claimed need not detain us much although the learned Advocate‑General, Haryana, appearing for the respondents, severely criticised the motive and purport behind this writ petition as political and only aimed at personal grievances by a political rival of the Chief Minister, yet we do not find that the locus standi of the petitioner to approach the Court was seriously questioned. The substance of the respondents' contention is that the Court shall not exercise discretion in favour of a person who has approached the Court only with oblique motives, but we think that the antecedents or status of persons lose all significance if the information conveyed to the Court even by such a person may justly require the Court to exercise its jurisdiction to protect the rights and liberties of the citizens. A Full Bench of the Andhra Pradesh High Court in D. Satyanarayana v. N. T. Rama Rao observed that being a politician by itself is no sin. In our democratic set‑up, Government is run by political parties voted to power by people. It is unrealistic to characterise any espousal of cause in a Court of law by a politician on behalf of the general public complaining of constitutional and statutory violations by the political executive as a politically motivated adventure. If the interests are not personal and the litigation appears to be for no personal gains, the person approaching the Court is not a busybody nor an interloper, the relief may not be denied. Thus, whatever may be their political affiliations, the petitioners cannot be estopped from pursuing the writ petitions for Quo Warranto as any citizen can question the authority under which a public post is held., There have been vitriolic exchanges between the parties in regard to the political sentiments of the day. The Court has made it clear at the time of hearing, reiterated now, that its interest lies only in resolution of legal issues and not in the politicisation of issues. I have thus eschewed all reference to political sentiments despite some grandstanding by the parties in the course of the hearing., Maintainability on the ground of apparent satisfaction of the provisions relating to qualification is addressed in paragraph 29.
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Respondents submit that the prayer for quo warranto may be maintained only if the individual respondents do not hold the requisite qualifications as prescribed under Article 173 of the Constitution in the case of the MLAs or Article 84 of the Constitution in the case of the MP, or under the relevant provisions of the Representation of Peoples Act, 1951. In the present case, the individual respondents hold the requisite qualifications under Articles 173 and 84 and do not attract any disqualification as provided for under Articles 191 and 102 respectively. Moreover there is an in‑built scheme in the Constitution that vests in the Governor (or the President in the case of an MP) the authority to decide on the question of disqualification. Hence, the present writ petitions are not maintainable as apparently, the individual respondents are qualified to hold their respective posts and for availability of an efficacious remedy as well., A writ of quo warranto is a serious ingress into the personal liberty of an individual and such writ must not be sought lightly. The burden rests heavy upon the petitioners to establish even at the outset what the disqualification or bar is that is sought to be mulcted upon the individual respondents. Maintainability of the writ petition will have to be decided based on the factual and legal position that presents itself on an apparent reading of the writ petition and since the pleadings do not reveal any constitutional or statutory bar, the writ petitions must be dismissed in limine., The petitioners respond by stating that their prayer is premised on the position that the individual respondents have committed breach of their oath and the offending statements amount to a fraud played on the Constitution. These issues go to the root of the matter. A writ of quo warranto is one of four constitutional writ remedies and hence the question of maintainability does not arise in circumstances where the petitioners have raised disputes that are fundamental to the matter. The question of an efficacious alternate remedy is one which should be considered by the Madras High Court as part of its decision on judicial review and this process cannot be bypassed or short‑circuited by the respondents., I agree with the petitioners that rejecting the writ petitions at this juncture would be premature and, in a way, putting the cart before the horse. The question of whether the individual respondents have the requisite authority to hold their posts can be determined only upon a proper analysis of the requisite provisions of the Constitution and other enactments including the Representation of Peoples Act, 1951. Respondents argue that they apparently possess the required qualifications and there is no need to look further. This may well be so. However, the arguments of the petitioners do warrant a deeper study and appreciation and it would, in my considered view, be an oversimplification of the matter to state that an apparent and peripheral reading of the provisions is all that is required in a matter of this nature. Casting the writ petitions away at this stage would be a miscarriage of justice. After all, if the Madras High Court, after hearing the parties, finds that the individual respondents do hold the requisite qualifications, they will succeed. This objection has no merit and is rejected., The admissibility of the electronic evidence is challenged on the ground that it is without certification under the provisions of the Indian Evidence Act, 1872. The evidence is of two kinds, firstly, a pen drive containing three videos of the offending statements and transcripts thereof. The petitioners have remedied the position by filing certificates dated 14 October 2023 under Section 65B of the Indian Evidence Act for admission of the pen drive. In fact, with this, the objections of the respondents stand addressed and redressed., It is alleged that the digital evidence is truncated and incomplete, modified or digitally edited by a third party and constitutes disputed questions of fact. The videos that have been filed contain the complete speeches of Mr. Udayanidhi Stalin and Mr. A. Raja and there is nothing to support the assertion that they have been digitally modified. In fact, the speeches and extracts therefrom have been available in public media ever since they were delivered in the convention and subsequent meeting and too much water has flown under the bridge for the individuals to raise a technical issue on this aspect now., Moreover there has been no contra evidence produced by the individual respondents to support the allegation of tampering with the evidence. After all, the individual respondents are best equipped with the knowledge of what had been stated from the podium. Except for the bald allegations made, there is nothing to commend the position that the offending statements have been doctored and the transcription filed is incorrect. No material has been placed before me in this regard. That apart, the statements alleged to have been made are available in the public domain., On an aside, in a matter of the present nature, there is nothing to be gained by being hyper‑technical. If the individuals are adopting a position of principle it would have been preferable that they stick to that position and argue on the strength of that principle rather than succumb to hyper‑technical objections. Hence the Madras High Court proceeds on the basis that the video clips as well as the texts represent a true version of what transpired. With this, the writ petitions are held to be maintainable and Writ Petition No. 29853 of 2023 is closed., Sanatana Dharma represents and expounds core values of Hinduism. The call for eradication of Sanatana Dharma is thus nothing but a call for eradication of Hinduism itself and this has been justified on the anvil of Dravidian ideology. The individual respondents are well aware of the fact that Sanatana Dharma is the same as Hinduism, as one of the earlier speakers in that very conference had clearly stated the same, in as many words. Thus, if the speakers had been of the view that Sanatana Dharma connoted anything other than Hinduism, it was for them to have clearly expressed their divergence in view, which has not been done., The speeches and participation of the ministers was clearly in their official capacity. They have not denied their statements anywhere and the only explanation put forth is reliance upon the speeches of Periyar and Ambedkar who had not held constitutional posts. They point out that the Varna or caste system is not one which operates based upon birth, but one which is attained by action and avocation. While the entire blame for the caste system in society is attributed to the Vedic varna system which is different from Sanatana Dharma, the State of Tamil Nadu has a list of 184 castes falling within backward and most backward categories. Such divisions do not arise from Vedic literature and are a creation of recent times., If the individual respondents are truly interested in preventing divisions and fostering integration as they claim, it is for them to erase the distinction between the prevailing castes in the State and bring about equality. Petitioners specifically point out that Tamil Nadu has a 69 % reservation as against 50 % reservation held by the rest of the Country and this is not a function of the varna system of Vedic times., Petitioners refer to Article 51A of Part IVA of the Constitution that enumerates the fundamental duties cast upon all citizens. They emphasize that while it is the duty of every citizen to promote harmony and the spirit of common brotherhood amongst people of India transcending religious, linguistic and regional or sectional diversities, all the more, is it the duty of constitutional functionaries., The statements made by the individual respondents amount to disinformation and hate speech prohibited both under Article 19 and Article 25 of the Constitution. The right of free speech under Article 19 is not an absolute right as sub‑article (2) imposes reasonable restrictions on the exercise of the right in certain demarcated situations such as the protection of the sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence., The law protects against statements that would prove a danger to public order and the integrity of the Country. The statements made by the individual respondents openly promise to destroy and do away with Sanatana Dharma or Hinduism and thus threaten the sovereignty of the Country., Sanatana Dharma references everything valuable and noble in Hinduism and by pledging to eradicate it like a virus, the individual respondents have spewed hate and vengeance on all practitioners of Hinduism. Article 25 of the Constitution protects the freedom of conscience and free profession as well as practice and propagation of religion. Hinduism or Sanatana Dharma is a religious faith, the practice of which is protected under Article 25., Hence, the actions of the individual respondents who are functionaries under the Constitution constitute a fraud played upon the Constitution and an abuse of their high offices. They point out that a speech of a sitting minister would amount to an actionable tort and rely on the judgment of the Supreme Court in Kaushal Kishor v. State of Uttar Pradesh., Mr. T. V. Ramanujan refers to Schedule III of the Constitution of India that deals with forms of oaths and affirmations. The text of the oath to be made prior to assumption of office reads thus: “I, [name], do swear in the name of God / solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the State of … and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill‑will.”, Since the text of the oath requires an affirmation that the candidate should act in conscience with the Constitution, there is a constitutional requirement cast upon them to act without fear, favour, affection or ill‑will, treating all persons equally irrespective of their faith. By their statements, the respondents have failed to uphold the principles of the Constitution violating the oath taken by them under Schedule III of the Constitution of India., Article 164(3) states that it is mandatory for the Governor to administer the oath of office and secrecy upon a minister prior to his entering into office and such oath is not an empty formality. The Division Bench of the Madras High Court in Anbazhagan K. etc. v. The Secretary, The Tamil Nadu Legislative Assembly & others held that legislators who burnt a copy of the Constitution were expelled and that such act constituted a breach of the oath., In the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner & others, election to the Chennai Corporation was set aside in a writ petition as it had been marred by violence. This relief was granted despite the availability of the alternate remedy of an election petition under the provisions of the Chennai City Municipal Corporation Act, 1919., The argument relating to breach of oath was defended by the learned Advocate General citing several cases to the effect that quo warranto would not lie on the basis of an allegation that there had been violation of the oath of office by the answering respondents, as the Constitution contains an in‑built scheme to address this issue. Courts have uniformly concluded that an MLA holds office at the pleasure of the Governor and hence it is only the Governor who is the competent authority to decide on the question of his disqualification., Perhaps realising the vulnerability of the argument relating to breach of oath, the petitioners then argue that the individual respondents have perpetrated fraud on the Constitution by virtue of their offensive statements and participation in the convention. Reference is made to the judgments in Andhra Pradesh Scheduled Tribes Employees Association v. Aditya Pratap Bhanj Dev and K. Venkatachalam v. A. Swamickan. Those judgments dealt with the concept of fraud played on a statute and the Court states that the concept of fraud committed on the Constitution was very similar to fraud being played on a statute. Any action which would subvert the object and purpose of the Constitution would amount to fraud on the Constitution. Mr. T. V. Ramanujan argues that the comparison by Mr. Udhayanidhi Stalin and others of Sanatana Dharma to diseases like Corona, dengue, malaria, HIV and leprosy is unconstitutional, in extremely bad taste and reveals the hatred of the individual respondents towards Hindus., He makes reference to the Constitution Assembly Debates on 10 September 2019 in the context of the article relating to right to property. Pandit Jawaharlal Nehru, while referring to the basic principle that no person shall be deprived of his property save by the authority of law, refers to the fixation of compensation and the fact that there should be no challenge to the same except if there had been fraud committed on the Constitution in the following terms: “Naturally the judiciary comes in to see if there has been a fraud on the Constitution or not. But normally speaking one presumes that any Parliament representing the entire community of the nation will certainly not commit a fraud on its own Constitution and will be very much concerned with doing justice to the individual as well as the community.”, Mr. Ramanujan then refers to the speech of Dr. B. R. Ambedkar as follows: “Now, Sir, I come to the amendments of my honourable Friend, Friend, Kazi Syed Karimuddin. His first amendment which I propose to take for consideration is amendment No. 1152. By this amendment he wants to add treason, bribery and other high crimes and misdemeanours after the words, violation of the Constitution. My own view is this. The phrase violation of the Constitution is quite a large one and may well include treason, bribery and other high crimes or misdemeanours. Because treason, certainly, would be a violation of the Constitution. Bribery also will be a violation of the Constitution because it will be a violation of the oath by the President. With regard to crimes, the Members will see that we have made a different provision with regard to the trial of the President for any crimes or misdemeanours that he may have made. Therefore, in my view, the addition of these words, treason and bribery, are unnecessary. They are covered by the phrase violation of the Constitution.”, In Andhra Pradesh Scheduled Tribes Employees Association (supra), the principles of law in relation to fraud and misrepresentation have been summarized as follows: (1) In judicial proceedings, fraud renders a judgment of a Court a nullity and void. (2) In proceedings other than judicial, an order obtained by fraud and misrepresentation cannot be allowed to stand. (3) In private law, mere misrepresentation without proof of deceit cannot vitiate the contract; it is only voidable. In public law, fraud on public authorities denies the person the benefit obtained by fraud. (4) The concept of fraud on the statute and fraud on the Constitution has similarities; any action which subverts the objects and purposes of the Constitution amounts to fraud on the Constitution. (5) A person who does not belong to SC/ST/BC and secures appointment by producing a fake certificate must be held guilty of fraud on the Constitution. (6) The principle of finality of litigation cannot be pressed when fraud is alleged to be the basis for the decision. (7) Fraud can be challenged in any Court even in collateral proceedings. (8) Fraud can be proved by established facts or inferred from admitted or undisputed facts; when fraud is inferred under Section 44 of the Indian Evidence Act, the Court may ignore a decision obtained by fraud., My attention is drawn to the conclusion at serial No.4 above, which states that any action which subverts the objects and purposes of the Constitution would amount to fraud on the Constitution. He thus impresses that the offending statements of the individual respondents amount to fraud on the Constitution, since they are in direct opposition to constitutional principles of fraternity, secularism and equality of all faiths., In the case of A. Swamickan v. K. Venkatachalam and another, the Madras High Court and thereafter the Supreme Court held that the whole of the election process was vitiated with fraud. The challenge to the election of K. Venkatachalam from Lalgudi Assembly Constituency was set aside on the factual basis that the appellant had impersonated another person with the same name in the application form. Cases cited by Mr. T. V. Ramanujan include Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Others v. State of Gujarat and Others (1975) 1 SCC 11; Subhash Desai v. Sharad J. Rao and Others (1994) SCC 446; Lily Thomas and Others v. Union of India and Others (2000) 6 SCC 224; State of Karnataka and Another v. Dr. Praveen Bhai Thogadia (2004); Dr. D. C. Wadhwa and Others v. State of Bihar and Others (1987) 1 SCC; Magesh Karthikeyan v. The Commissioner of Police, Police Commissionerate, Avadi, Chennai and another (WP No. 30692 of 2023); K. C. Chandy v. R. Balakrishna Pillai (1985 SCC Online Ker 198); Alappey Asharaf v. Chief Minister, Govt. Secretariat, Thiruvananthapuram-695 001 and others (2018) 1 KLT (SN 40) 30; 1986 SCC Online Mad 1149 (1999) 4 SCC 526., Mr. G. Rajagopalan specifically refers to the statements by Mr. P. K. Sekar Babu as well as his presence and participation in the convention, pointing out that such acts are in violation of several guarantees set out under the Constitution. The Preamble guarantees liberty of thought, expression, belief, faith and worship and Article 25, the right of freedom of religion. Article 51(c) urges respect to international law and Article 51A(f) to value and preserve the rich heritage of our composite national culture., A distinction was drawn between the freedom of speech under Article 19(1)(a) which is subject to reasonable restriction under Article 19(2) and Article 25 which grants the right to freedom of religion which is absolute, except on the grounds of public order, morality and health. Article 25 requires to be implemented not only qua the State but qua co‑citizens as well and any violation of this guarantee must be interfered with and set right. All the more if the violator is one holding constitutional office., The constitutional guarantee of freedom of religion flows from obligations under international covenants and in this context reference is made to the International Bill of Human Rights, 1948 and the International Covenant on Civil and Political Rights, 1966. Particular exception is taken to the offensive statements on the ground that government in the State is expected to be secular. Members of all faiths are required to be treated equally and it is an aberration for an individual holding a constitutional post to express an opinion against any one particular religion., A specific argument is raised on the distinction between personal morality and constitutional morality, in that, while a citizen may hold a set of morals that are general in nature or even coloured by personal prejudices, sitting ministers are expected to be above such prejudices. The offensive statements and participation of the minister holding portfolio of Hindu Religious and Charitable Endowments Department in the convention for abolition of Sanatana Dharma reveals his deep‑seated prejudice as far as Hinduism and Hindus are concerned., The Hindu Religious and Charitable Endowments Minister heads a department that supervises more than 30,000 temples in the State. The temples espouse Hinduism and Hindu philosophy that are based upon the core values of Sanatana Dharma. In fact, the officials of the department have to make an oath as provided for under the Manner of Proof of Professing Hindu Religion Rules, 1961 issued under Government Order No. 4055 Revenue dated 23 September 1961., The rule requires the pledge to be taken by the appointee in the immediate presence of the Executive Officer or Chairman, Board of Trustees of the religious institution before the presiding deity in the nearest Hindu religious institution selected, in the presence of two witnesses. Such pledge, once taken, should be reduced to writing and placed before the head of the office as a permanent record., The form of pledge is as follows: “Every person appointed or deemed to be appointed under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 shall sign a pledge in the form appended to these rules. I, son of residing at village taluk district, appointed to the post of … do solemnly swear that I am a Hindu by birth and profess the Hindu religion.” (Signature, witnesses, etc.), The Hindu Religious and Charitable Endowments Act, 1959 proceeds on the statutory premise under Section 10 that all appointees under that Act, such as the Commissioner and other servants of the department, would be persons who profess the Hindu religion. Section 25 of the Act requires the appointees to observe the forms and ceremonies appropriate to religious institutions and hence it is all the more incumbent upon the individual holding the portfolio of Hindu Religious and Charitable Endowments to ensure that he does not speak against the very philosophy of the faith which he professes to oversee and protect., The specific argument is that in this view of the matter, there is little need, and it is unnecessary, to restrict oneself to the specific stipulations of the Representation of Peoples Act. The obligations under the Constitution must be implemented in letter and spirit. The Directive Principles of State policy, especially Article 51A, must be given meaning and purpose, especially the spirit of brotherhood. Such a requirement would have to be read into the law as otherwise there would be gross distortion of the constitutional scheme., Mr. Karthikeyan submits that Mr. A. Raja is an elected member of the Lok Sabha having contested the election in the Reserved Constituency for Scheduled Castes. Clause 3 of the Scheduled Caste Order, 1950 states that notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu religion shall be deemed to be a member of a Scheduled Caste. Thus this individual has necessarily to profess Hinduism, since he is admittedly part of the Scheduled Caste community. In such circumstances, his statements equating Sanatana Dharma to diseases like HIV/AIDS and leprosy are in total violation of constitutional principles and constitute rank fraud played upon the Constitution., As it is self‑destructive for one who is expected to profess Hinduism to seek eradication of that very faith, clearly he is not a practitioner of that faith and loses his eligibility to contest the election in the Reserved Constituency. One way or the other, his statements amount to a fraud on the Constitution attracting the writ of quo warranto., Reply of the respondents: In common, all individual respondents have referred, in extenso, to a publication of the year 1902 by the Board of Trustees of the Central Hindu College, Banaras titled “Sanatana Dharma: An Elementary Textbook of Hindu Religion and Ethics”. The publication states that the basis of Sanatana Dharma are the Vedas and other compendiums, the chief of which is referred to as Aryan Law by Manu., Chapter VII of the publication refers to four castes and specific reference is made to a passage from the Rig Veda where the avocations to be followed by the four castes are set out. The Brahmana was … etc., The above verse has been referred to point out the inequality in the caste system. According to them, it is this system of inequality that has perpetrated through the centuries leading to oppression of certain classes of societies, at the instance of the upper castes., Several other portions of the book have also been referred to, such as reference to the Aryan invasion theory, all of which tie up with their stand relating to caste discrimination and domination of the Aryans from the North who imposed on the Dravidians. Their case is thus that Sanatana Dharma is nothing but Varna Dharma.
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The convictions referred to in Section 8 of the Representation of the People Act relate to specific offences alone and the individual respondents have not suffered any convictions on those scores. There is a presumption, as noticed by the Supreme Court of India in the case of Y.S. Rajasekara Reddy, that the appointment of a representative of the people is in order unless such a representative has usurped that office. The Constitution provides for elected representatives to serve at the pleasure of the Governor. As the eligibility criteria under the Constitution and the Representation of the People Act have been met and the individuals do not attract any disqualifications, the question of quo warranto does not arise. Only the Governor, as the appointing authority, could decide on the continuance of their appointment., Cases cited by the Advocate General include Samsher Singh v. State of Punjab [(1974) 2 SCC 831], B.P. Singhal v. Union of India [(2010) 6 SCC 331], Manoj Narula v. Union of India [(2014) 9 SCC 1], Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1], U.N.R. Rao v. Indira Gandhi [(1971) 2 SCC 63], K.R. Ramaswamy alias Traffic Ramaswamy v. State, rep. by the Chief Secretary, Government of Tamil Nadu [(2012) 2 CTC 481], Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly [(2020) SCC OnLine SC 55], Ramachandran v. M.G. Ramachandran, Chief Minister of Tamil Nadu [(1987) 100 LW 178], Dr. Y.S. Rajasekara Reddy v. Sri Nara Chandrababu Naidu [(AIR 2000 AP 142)], Hardwari Lal v. C.Bhajan Lal, Chief Minister, Haryana [(1993) 1 SCC 184]., Mr. Wilson adopts the arguments of the learned Advocate General on the question of law, reiterating that only a candidate attracting the disqualifications mentioned in Section 8 of the Representation of the People Act could be disqualified. Such disqualifications must be construed strictly and cannot be expanded by the Court. Cases cited by Mr. Wilson include Navtej Singh Johar v. Union of India [(2018) 10 SCC 1], Dr. Ranjeet Suryakant Mohite v. Union of India (PIL No. 139 of 2010), Indibily Creative Private Limited v. Government of West Bengal [(2020) 12 SCC 436], Union of India v. S.P. Anand [(1998) 6 SCC 466], Anna Mathews v. Supreme Court of India [(2023) 5], Manikka Sundara Bhattar v. R.S. Nayudu, Executive Officer and Trustee of Sri Minakshi Sundareswarar Devasthanam, Elangovan v. Secretary, Home Department, Secretariat, Fort St. George, Chennai, S. Khushboo v. Kanniammal [(2010) 5 SCC 600], Supriyo @ Supriya Chakraborty v. Union of India [2023 SCC OnLine SC 1348], Kaushal Kishor v. State of Uttar Pradesh, Kedar Nath Singh v. State of Bihar [(1962) SCC OnLine SC 6], People's Union for Civil Liberties v. Union of India [(2003) 4 SCC 399], Shreya Singhal v. Union of India [(2015) 5 SCC 1], S. Tamilselvan v. Government of Tamil Nadu [(2016) 3 LW], Ramji Lal Modi v. State of U.P. [(AIR 1957 SC 620)], Retired Armed Forces Medical Association v. Union of India [(2006) 11 SCC 731], Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, University of Mysore v. C.D. Govinda Rao, State of West Bengal v. Anindya Sundar Das [(2022) SCC OnLine SC 1382], AIIMS Students' Union v. AIIMS [(2002) 1 SCC 428], Lily Thomas v. Union of India [(2013) 7 SCC 653], Manoj Narula v. Union of India [(2014) 9 SCC 1], Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, S. Ramachandran v. State of Tamil Nadu, Public Interest Foundation v. Union of India, Nand Kishore Garg v. Govt. of NCT of Delhi., Mr. Jothi expresses suspicion about the motives of the petitioners in approaching the Supreme Court of India and argues that the writ petition is malafide. He chronicles the achievements of Mr. P.K. Sekar Babu after assuming the post of HR & CE Minister, stating that he inspected 271 temples from June 2021 to 31 December 2022 and 29 temples in 2023. Several measures have been taken for the betterment of temples under the HR & CE Department, including sanctioning grants that benefit both temples and devotees., The department is reconciling websites of various State departments to reflect temple land holdings. Stolen idols have been recovered and strong rooms and icon centres are being set up on an ongoing basis to protect idols and precious items. Training schools have been established for Odhuvars and festivals are being conducted grandly throughout the State., Benefits such as enhanced salaries and retirement benefits have been granted. Temple premises, including temple tanks, and the quality of prasadams are not only being maintained but are being consistently improved., Mr. Jothi would impress upon the Supreme Court of India that his client is a religious person who is a devotee of Lord Ayyappa and a Hindu, but he asserts that he does not practise Sanatana Dharma. He attacks a publication by Central Banaras University, claiming that its ideology is based on the permanence of Dharma, which he finds objectionable because, according to him, nothing is eternal in the world., He refers to extracts from a publication titled *Manu Neethi (Smruti) Dharma Shasthiram* and a work by Swamy titled *Hindu Madham 1000 Kelvibathilgal* (translated as *Hinduism – 1000 Questions and Answers*). Both books illustrate the pitfalls and inequality of the caste system, which he identifies as Sanatana Dharma. Referring to Vallalar, he speaks of oneness among humans and universal equality, questioning why Manu Smriti should be taken as the basis of Hinduism, arguing that the caste system violates Articles 15 and 17 of the Constitution. Cases cited by Mr. Jothi include Gopala Moopanar v. Dharmakarta Subramaniya Iyer, Hadibandhu Behera v. Banamali Sahu, Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, Sardar Govindrao v. State of Madhya Pradesh, S.P. Mittal v. Union of India, All India Democratic Women’s Association v. Union of India, Jai Singh v. Union of India, State of Karnataka v. Appa Balu Ingale, Pannalal Bansilal Pitti v. State of A.P., A.S. Narayana Deekshitulu v. State of A.P., F. Ghouse Muhiddeen v. Government of India, N. Adithayan v. Travancore Devaswom Board, Bhagwan Dass v. State (NCT of Delhi), Arumugam Servai v. State of Tamil Nadu, Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, Paitabhirama Ayyar v. Michell, Thiru Sabanatha Oil Sivachariyar v. Commissioner, H.R. & C.E. Department, Chennai., Mr. Viduthalai submits that Mr. A. Raja is a representative of the Nilgiris constituency, comprising predominantly persons from the most backward, suppressed and marginalised communities. He has served in the Union Cabinet and has been a Member of Parliament for more than twenty years. Having witnessed the marginalisation propagated by Sanatana Dharma, he feels the need to highlight social evils and archaic facets of Sanatana Dharma that conflict with Constitutionally enshrined principles of equality and justice., Sanatana Dharma, according to him, is not a holy grail but is used by many in society to perpetrate socially divisive practices. The original texts incorporate the idea of division of labour determined by birth, known as Varna, which classifies individuals into four classes, the last serving the other three., Historically, Sanatana Dharma relegates women to a subservient status. Mr. Jothi asserts that his speech was intended solely to achieve congruity among fundamental rights enshrined in Articles 14, 15, 19 and 25 and to protest unconstitutional ideologies as envisaged in the texts of Sanatana Dharma., Mr. Raja, a law student, authored an article titled *The Constitutional Irrelevance of Sanatana Dharma* in a weekly. The article argues that definitions of Sanatana Dharma have largely been supplied by non‑Indian, non‑Hindu Indologists, that contemporary debates are politicised, and that remarks by the Prime Minister have been myopic. It references a 1916 Central Banaras University publication, writings of Dr. B.R. Ambedkar, Sarvepalli Radhakrishnan and Shyama Prasad Mukherjee, and notes that Ambedkar, in February 1949, warned against legislation that leaves inequality untouched., The article states that the Ashoka wheel represents the wheel of law and Dharma, that institutions such as caste and untouchability are woven into social fabric, and that unless these are scrapped, truth and virtue cannot be pursued. It describes Dharma as perpetual, not a fixed deposit, and emphasizes movement and flexibility as essential to a democratic society. Sir C. P. Ramaswami Iyer, in *Hindu Faith and Culture*, acknowledges the advanced civilisation of Dravidians and the interaction with Aryans, noting a comprehensive legal system across the region., The conclusion is that orthodox Hindu customs, Shastras and other outdated sacred texts must be tested against the Constitution, whose principles of liberty, equality and fraternity leave no room for shastrical interpretations. He cautions that any executive, legislative or judicial authority that patronises outdated Dharmas is legally irrelevant and attempts to defame the Constitution., Articles 84, 102 and 103 of the Constitution provide for qualifications, disqualifications and the competent authority to disqualify a Member of Parliament. The grounds of disqualification under Article 102(1)(e) refer to Sections 8, 8A, 9, 9A, 10, 10A, 11 and 11A of the Representation of the People Act, 1951. No disqualification of the nature projected by the petitioners exists, and a new disqualification cannot be read into the Constitution or the Act. Consequently, the writ petition lacks merit., Halsbury’s Laws of England clarifies that a writ of quo warranto and an injunction in lieu thereof cannot be granted as a matter of course. The case of Henry Farran Darley v. Robert Kinahan (1846) held that a writ of quo warranto is a severe proceeding not normally favoured by law and must be exercised sparingly., A writ of quo warranto lies only where a holder of public office lacks requisite qualifications or continues in office despite statutory or constitutional disqualification. The appropriate authority is the constitutional functionary, as the question of qualification falls within parliamentary privilege and is not cognisable by courts. The respondents distinguish Venkatachalam’s case, maintaining that no fraud has been committed., All citizens enjoy the freedom of speech, a positive right encompassing the right to critique, negate and differ. It provides for constructive criticism and encourages contrary views, serving as a prerequisite for meaningful dialogue and the development of the State and the economy., Legislative intent has been highlighted repeatedly by courts, concluding that progress requires freedom to speak, write, think, experiment, criticize (including government criticism) and dissent. The European Court of Human Rights in *Handyside v. United Kingdom* emphasised that freedom of expression is an essential foundation of a democratic society and that restrictions must be proportionate to a legitimate aim., Cases cited by Mr. Viduthalai include Indian Young Lawyers Association (Sabarimala Temple) v. State of Kerala [(2019) 11 SCC 1], Henry Farran Darley v. Robert Kinahan [(1846) 12 Cl. & F. 520], Bharati Reddy v. State of Karnataka [(2018) 6 SCC 162], University of Mysore v. C.D. Govinda Rao [(AIR 1965 SC 491]), Dr. Y.S. Rajasekara Reddy v. Sri Nara Chandrababu Naidu [(AIR 2000 AP 142)], Vidadala Harinadha Babu v. N.T. Rama Rao [(AIR 1990 AP 20)], P.N. Dubey v. Union of India [(AIR 1989 MP 225)], B. Premanand v. Mohan Koikal [(2011) 4 SCC], Aswini Kumar Ghose v. Arabinda Bose [(1952) 2], Rohitash Kumar v. Om Prakash Sharma [(2013) 11 SCC], Kallara Sukumaran v. Union of India [(AIR 1986 Ker 122)], Government of Andhra Pradesh v. P. Laxmi Devi [(2008) 4 SCC], Baldev Singh Gandhi v. State of Punjab [(2002) 3 SCC 667], Handyside v. United Kingdom [(1976) 2 EHRR 601], S. Rangarajan v. P. Jagjivan Ram [(1989) 2 SCC 574], Supriyo @ Supriya Chakraborty v. Union of India [2023 SCC OnLine SC 1348], Indira Nehru Gandhi v. Raj Narain [(1975) 1 SCC], Dr. Ashwani Kumar v. Union of India [(2020) 13 SCC 585], Divisional Manager, Aravalli Golf Club v. Chander Hass [(2008) 1 SCC 683]., While not intending this to be a theological paper, it is necessary to discuss certain religious concepts as a precursor to legal issues, especially because the individual respondents are constitutional functionaries. The term *Sanatana* means eternal, timeless and perpetual; it qualifies the noun *Dharma*, which means principles or a value system. Thus *Sanatana Dharma* means an eternal or perpetual value system or code of conduct., An instructional book titled *Sanatana Dharma Catechism* (published by Theosophical Publishing House, 1949) used for moral instruction contains the following: Q1: What is the meaning of the words *Sanatana Dharma*? A1: *Sanatana* means eternal; *Dharma* means religion. Q2: To what religion is this name given? A2: It is given to the Hindu religion, the oldest in the world. Q3: Is eternity the only reason for the name? A3: No, it is also because the great truths taught in it are eternal., Simultaneous with creation, *Rta* (truth or order) led to the doctrines of *Dharma* (duty) and *Karma* (effects of actions) pervading the universe. *Rta* is the physical order of the universe and the moral law of the world. It is a central concept in early Vedic philosophy, later expressed as *Satya* in the mid‑Vedic period and as *Dharma* in the post‑Vedic period. In each era, *Rta*, *Satya* and *Dharma* were fundamental to the proper functioning of natural, moral, religious and sacrificial orders., Dharma is universal in application, irrespective of an individual's faith. Universal values such as honesty, integrity, respect for elders and compassion elevate societal quality and are timeless virtues. The core principles of Dharma are those that admit no divergence of opinion and apply to all living beings. The *Yajnavalkya Smriti* and *Manu Smriti* describe Dharma as self‑possession, patience, self‑control, integrity, purity, restraint, intelligence, learning, truthfulness and absence of anger, as well as harmlessness, truth‑speaking, refraining from theft and control of the senses., The respondents appear to regard Sanskrit as elitist, exclusionist and on the brink of extinction. However, the principles of Sanatana Dharma are contained in Vedic texts written in Sanskrit, and a proper understanding requires authentic commentaries by scholars such as Skandaswamy, Sayanar or Bhattabhaskar. Translations and unauthenticated commentaries are insufficient., The submissions indicate that no serious study of primary texts has been undertaken. Instead, popular notions such as the Aryan invasion theory are articulated without in‑depth research. The term *Aryan* denotes a qualification meaning noble and can refer to any individual possessing that qualification., The universal and eternal code of morality advocated by Sanatana Dharma is not limited by language. In Tamil it is referred to as *Aram*, expounded in literature such as *Tholkappiyam*, *Agananuru*, *Purananuru*, *Thirukkural*, *Prabandham* and *Thevaram*. *Thirukkural* Book I is entitled *Aram* (Righteousness) and contains verses extolling virtuous living., At the request of the Supreme Court of India, senior professors at the Kuppuswami Sastri Research Institute, Madras, conducted a sample study of the original Vedic texts. Their preliminary findings confirm that the phrase *Sanatana Dharma* has always been used in the context of high moral values and virtuous living, with no material indicating its use to propagate the Varna system or unfair societal divisions., Instances where the phrase *Sanatana Dharma* appears in Vedic literature include the Khanapur plates of Madhavavarma (6th century AD), which contain the phrase *Sanatanadharma* (the eternal religion), and the *Glossary of Historical Tamil Vaishnava Prose* (up to 1800 AD), which defines it similarly., While the Rig Veda provides for a division of castes, such classification is based on avocation rather than birth. The respondents were queried about the material on which they based the conclusion that *Sanatana Dharma* meant only Varna Dharma. Apart from the Central Banaras University publication and the book *The Law Code of Manu*, there are no authoritative texts or commentaries indicating that the respondents conducted a substantive study to reach that conclusion., The restrictive meaning attributed to the phrase *Sanatana Dharma* is erroneous; it connotes an eternal, perpetual and universal code of conduct that is uplifting, noble and virtuous. This is the first conclusion on this aspect., The second issue concerns whether *Sanatana Dharma* is distinct from Hinduism. Swami Vivekananda, in his book *Hinduism* and in his seminal paper presented at the World Parliament of Religions on 19 September 1983, stated that three religions—Hinduism, Zoroastrianism and Judaism—have survived from prehistoric times, demonstrating internal strength. He further explained that Hindus receive their religion through revelation, the Vedas, which are without beginning and without end.
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They mean the accumulated treasury of spiritual laws discovered by different persons in different times. Just as the law of gravitation existed before its discovery, and would exist if all humanity forgot it, so is it with the laws that govern the spiritual relations between soul and soul and between individual spirits and the Father of all spirits; they were there before their discovery, and would remain even if we forgot them. The discoverers of these laws are called Rishis, and we honor them as perfected beings. I am glad to tell this audience that some of the very greatest of them were women., While Sanatana Dharma is understood as the universal and perpetual code of virtuous conduct propagated from times immemorial, the term Hindu is a development far later in time. Sarvepalli Radhakrishnan says in Hindu View of Life that the term Hindu originally had territorial significance, implying residence in a well‑defined geographical area., Those who lived on the banks of the river Sindhu were practitioners of Sanatana Dharma. The word Sindhu came to be modified over the years by foreign invaders to Hindu and in time became associated with the people living in that area. As the Hindu practitioners of Sanatana Dharma expanded their area of residence, they carried with them the tenets of Sanatana Dharma as well. Sanatana Dharma thus forms the very core of Hinduism and the two are immutable, one and the same. This is the second conclusion on this aspect., This is not to say that those who lived elsewhere were bereft of a virtuous code of conduct. As discussed above, Tamil literature has ample reference to Aram, celebrated and practiced diligently by the people. The principles of Sanatana Dharma and Aram are thus premised on similar value systems of high thinking and a virtuous way of life., Aurobindo has elaborately addressed the principles of Sanatana Dharma. He states, in a collection of his works, as follows: “What is this religion which we call Sanatana, eternal? It is the Hindu religion only because the Hindu nation has kept it, because in this peninsula it grew up in the seclusion of the sea and the Himalayas, because in this sacred and ancient land it was given as a charge to the Aryan race to preserve through the ages. But it is not circumscribed by the confines of a single country; it does not belong peculiarly and forever to a bounded part of the world. That which we call the Hindu religion is really the eternal religion, because it is the universal religion which embraces all others. If a religion is not universal, it cannot be eternal. A narrow, sectarian, exclusive religion can live only for a limited time and a limited purpose. This is the one religion that can triumph over materialism by including and anticipating the discoveries of science and the speculations of philosophy. This Hindu nation was born with the Sanatana Dharma, with it it moves and with it it grows. When the Sanatana Dharma declines, then the nation declines, and if the Sanatana Dharma were capable of perishing, with the Sanatana Dharma would perish. The Sanatana Dharma, that is nationalism.”, By seeking to eradicate Sanatana Dharma, the respondents, in effect, undertake to eradicate much that is virtuous in society. This assumes importance, since they are utterances by persons holding constitutional posts and the apprehension is that the full power of the State machinery would be utilised for this purpose. In fact, Mr. Udhayanidhi Stalin indicated, on behalf of the youth wing of the Dravida Munnetra Kazhagam, that a training camp meeting on the history of the Dravidian movement and the language war has been ordered by the chief minister and will be conducted union‑wise and area‑wise, with a training camp 2.0 soon., This is indeed an alarming situation. While there may be ideological differences between persons holding power, the differences are expected to be based on a thorough understanding of the system being critiqued and, importantly, to be constructive and not destructive of any faith. Statements made in public by sitting ministers and members of Parliament must be factually and historically accurate., Whatever may be their personal ideology, members holding constitutional positions can espouse only one morality and that is the morality propounded by the Constitution. The participation in the convention, and subsequent statements of the HR & CE Minister are particularly exceptionable. The fact of participation by itself connotes endorsement of the theme and purpose of the convention which militates violently with his constitutional position as well as his position as the avowed benefactor of Hindu religious endowments., By equating Sanatana Dharma to HIV/AIDS, leprosy, malaria and corona, the individual respondents have revealed an alarming lack of understanding of Hinduism. Their statements are perverse, divisive and contrary to constitutional principles and ideals and tantamount to gross disinformation., In the article penned by Mr. A. Raja there is a reference to a publication titled Hindu Faith and Culture attributed to C. P. Ramaswami Aiyar. The Supreme Court of India was unable to find a publication by that name. However there is a publication entitled Speeches of Sachivottama Sir C. P. Ramaswami Aiyar, Dewan of Travancore, wherein a series of lectures delivered by Dr. C. P. Ramaswami Aiyar have been compiled. In a lecture delivered in Bangalore on the political spirit and self‑discipline, he said: “The political spirit described as characteristic of modern society has its own place but it should not be allowed to trespass into domains that have least to do with politics. In order to achieve these ends, every attempt should be made not to succumb to the scientific and technological creeds which are apt to become dangerous idolatries but to remember that the main implication of culture and the true end of education are the creation of a sense of proportion and a realisation of ultimate human values which alone will contribute to humane thinking and humane living.”, Swami Vivekananda, in his publication on Hinduism, refers to Hinduism as a universal religion. After setting out a short sketch of the religious ideas of the Hindus, he says, “The Hindu may have failed to carry out all his plans, but if there is ever to be a universal religion, it must be one which will have no location in place or time; which will be infinite like the God it will preach, whose sun will shine upon the followers of Krishna and of Christ, on saints and sinners alike; which will not be Brahmanic or Buddhistic, Christian or Mohammedan, but the sum total of all these, and still have infinite space for development; which in its catholicity will embrace in its infinite arms, and find a place for every human being, from the lowest grovelling savage not far removed from the brute, to the highest man towering by the virtues of his head and heart almost above humanity, and making society stand in awe of him and doubt his human nature. It will be a religion which will have no place for persecution or intolerance in its polity, which will recognise divinity in every man and woman, and whose whole scope, whose whole force will be centred in aiding humanity to realise its own true and divine nature.”, The effort of any reasonable, fair and well‑intentioned leader must be aimed towards identifying the commonalities of different sections of the people so as to unite, rather than divide them. Though criticism is essential for growth, it must be constructive to ensure that progress, rather than destruction, is the destination., The Supreme Court of India agrees unequivocally that there are inequities based on caste present in society today and that they are to be eschewed. However, the origins of the caste system as we know it today are less than a century old. The State of Tamil Nadu has 370 registered castes and the State is a cacophony of pulls and pressures by groups of persons claiming allegiance to one caste or another., This ferocity among persons belonging to different castes is also, in part, on account of the benefits made available to them. Can one lay the blame for these torturous circumstances entirely on the ancient Varna system? The answer is emphatically negative. If the leaders in a State wish to lead an egalitarian land with equal sharing of resources among all the people, they must set an example by exhibiting fairness in approach, moderation in speech and a sincere desire to understand the differences between their people., Divisions based on caste are deeply entrenched in the State of Tamil Nadu and the State must undoubtedly do all in its power to eliminate such evils. Instead the individuals are seen to be fanning casteist passions which is not in the interests of the State or its people., It is a matter of record that there have been severe ravages by fellowmen, at differing points in time, to different sections of society, all in the name of supremacy and domination of caste as well as a response to perceived domination by certain castes. I refrain from chronicling the details, as not being directly relevant to the subject matter of this order and also for the reason that there is no benefit to be gained in revisiting past events and episodes that have been the source of pain, trauma and deep sadness to sections of people at different points in time., Suffice it to say that such events must be deprecated and the Supreme Court of India does so unequivocally. There must be repair and damage control on an ongoing basis to correct the unfairness of the past. There must, consequently, also be sincere introspection on the methods that can be evolved to correct injustices and foster equality, today and going forward., The Varna system does not contemplate division on the basis of birth, but on avocation. The system was designed to work towards the smooth functioning of society centuries ago where the chief avocations were identified based on the needs of society at that time. The relevance of such a system today is itself moot., On the aspect of hate speeches, three judges of the Supreme Court first considered the issue of hate speeches in Pravasi Bhalai Sangatha v. Union of India and others. The prayer was for a mandamus declaring hate or derogatory speeches made by political or religious leaders on religion, caste, region and ethnic lines violative of various articles under the Constitution., At that time, the Court was of the view that the law had not developed enough to enable passing of guidelines in rem to deal with the issue of hate speeches. Judicial review or judicial intervention, they felt, must be restricted to those cases that were capable of being addressed specifically and in a focussed manner. After all, they state, if there were any arbitrary or unreasonable action taken by any person, it would attract the existing provisions of law including the Indian Penal Code calling for appropriate action. It was thus proper, they felt, that matters be addressed on a case‑by‑case basis rather than general guidelines be issued., The burning issue of hate speech was then dealt with by the Supreme Court in the case of Tehseen S. Poonawalla v. Union of India. The Court was concerned with animal vigilantism perpetuated on the basis of differences between groups of citizens of religion and thought processes. The Court categorically says that hate, as a product of intolerance, ideological dominance and prejudice ought not to be tolerated lest it leads to a reign of terror. The individual respondents in this matter will do well to heed this note of caution., There is a fine balance between speaking one’s mind and having the freedom to do so, and such freedom constituting an infraction on the ideological preferences, views, opinions and practices of others. Paragraphs 20 and 21 of the judgment say: “Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror. Extrajudicial elements and non‑State actors cannot be allowed to take the place of law or the law‑enforcing agency. A fabricated identity with a bigoted approach sans acceptance of plurality and diversity results in provocative sentiments and a reactionary retributive attitude transforming itself into dehumanisation of human beings. Such an atmosphere is one in which rational debate, logical discussion and sound administration of law eludes thereby manifesting clear danger to various freedoms including freedom of speech and expression. One man’s freedom of thought, action, speech, expression, belief, conscience and personal choices is not being tolerated by the other and this is due to lack of objective rationalisation of acts and situations. In this regard, it has been aptly said: ‘Freedom of speech is a principal pillar of a free government; when this support is taken away, the Constitution of a free society is dissolved and tyranny is erected on its ruins.’”, Freedom of speech and expression in different forms is the vital 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 to be suppressed. That is the idea and essence of our nation which cannot be borrowed from a line of Rabindranath Tagore, 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. It must be emphatically stated that a dynamic contemporary constitutional democracy imbibes the essential feature of accommodating pluralism in thought and approach so as to preserve cohesiveness and unity. 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., India is a democracy and the Constitution propounds a secular government with equal freedom to all its citizens. Hate and divisiveness, particularly from the hands of the Government, is anathema to such freedom, and assumes a seriousness bordering on danger. The freedom of speech guaranteed under Article 19(1) is not absolute in that it is tempered by a set of reasonable restrictions set out under Article 19(2). The nature and dimensions of the restrictions will have to be tested on the anvil of situations as and when they occur., The Supreme Court, in Poonawalla’s case, states that in a rights‑based approach to constitutional legitimacy, democratic governance must propel and drive towards a stronger foothold for liberties so as to ensure sustenance of higher values of democracy, paving the way for spontaneous constitutional order., The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion. The State has a primary responsibility to foster a secular, pluralistic and multicultural social order so as to allow free play of ideas and beliefs and co‑existence of mutually contradictory perspectives. Stifling free voices can never bode well for a true democracy and it is essential to build societies which embrace diversity in all spheres and rebuild trust of the citizenry in the State machinery., A series of guidelines have been issued in Poonawalla’s case to formulate preventive measures to prevent incidences of hate speech and crimes. There has also been a general direction issued to the police to initiate action suo motu if the police detect incidents of hate speech. There has been some consequence of this in the present matter., As a counter‑blast to the conduct of the convention, certain other groups had organised a meeting to discuss the concepts and philosophy of Hindutva. There was a challenge to the conduct of that meeting in W.P. No. 25907 of 2023, which was disposed on 05.09.2023 permitting the conduct of the meeting. This was followed by W.P. No. 30692 of 2023, wherein the prayer was for a direction to the respondents, being the Commissioner of Police, Chennai and Inspector of Police, M‑2 Milk Colony Police Station, to give permission to the petitioner in light of the orders of the Supreme Court of India in W.P. No. 25907 of 2023 on 05.09.2023, to organise a conference to debate on Dravidian ideologies and other social issues on 29.10.2023 between 10 a.m. and 6 p.m. at the closed auditorium in Madhavaram Milk Colony, considering the petitioner’s representation dated 26.09.2023., While disposing that writ petition on 31.10.2023, Dr. Jayachandran, J, made a distinction between the earlier writ petition and the one that he was dealing with, pointing out that the earlier writ petition dealt with the conduct of a peaceful meeting, whereas the present writ petition had destructive overtones. He also indicated that the offensive statements that are the subject matter of the present writ petitions attracted application of the guidelines of the Supreme Court to the police regarding suo motu intervention. However, no specific directions were issued., As against this writ petition, R1 filed a writ appeal that was closed by the First Bench of the Supreme Court of India noting that there had been no action taken by the police subsequent to the order of Dr. Jayachandran, J and hence there was no prejudicial cause of action. Liberty was granted to R1 to approach the Court should it become necessary at a later date., The purpose of faith is to unify and not divide. There are, in Hinduism, two concepts, Vyapya Gnanam and Vyapak Gnanam, the former referring to focused and pointed study of a subject matter, and the latter, wider in approach and encompassing a great deal more of that subject, albeit peripherally. While the proper approach for study of any subject would be the former, that is to say, any subject matter must be addressed in a focused and in‑depth manner, in the interests of unity and cohesiveness, it is sometimes preferable for the study to be peripheral and broad‑based., The logic is that the latter would enable identification of points of commonality and similarity leading to unification at some level, whereas deep and in‑depth study would only throw up points of differences and division between the subject matters., A series of lectures on YouTube addresses the crying need for compatibility amongst the various schools of thought within the Hindu religion itself, such that the religion is not fragmented or divided. This scenario is not unique to Hinduism alone and most faiths accommodate several branches within their fold, with marked differences in their philosophy and procedures. Leaders in all faiths will do well to identify broad points of unity among the branches of their faiths rather than focus on the narrow differences between them. It is no different in the case of a State. The effort must be to unite rather than divide and it is this effort that decides the bonafides of the leadership., It is well settled that constitutional morality binds a constitutional functionary. Such morality enjoins the individual respondents to be neutral, impartial and fair in their dealings with the people. The individual respondents have undoubtedly acted contrary to constitutional principles and ideals and their statements amount to disinformation and hate against members of a specific community., Seen in this backdrop, the question arises as to whether it is contrary to constitutional ideals for constitutional functionaries to vow to annihilate a section of their own people who follow a particular faith, and whether such statements violate the promise of secular values under the Constitution. The answer is unambiguously affirmative., The scope of the writ of quo warranto has been discussed in Attorney General v. Barstow in the following terms: “It is foreign to the objects and functions of the writ of quo warranto to direct any officer what to do. It is never directed to an officer as such, but always to the person not to dictate to him what he shall do in his office, but to ascertain whether he is constitutionally and legally authorized to perform any act in, or exercise any functions of the office which he lays claim to.”, Reference in this regard may also be made to the decision in Darley v. The Queen and the King’s Bench in R v. Speyer., Chapter II of the Constitution deals with the Executive and Article 154 vests the executive power of the State in the Governor. The Governor is appointed by the President by warrant and Articles 155 and 156 state that he holds office during the pleasure of the President., He is assisted in the rendition of his duties by the Council of Ministers with the Chief Minister at its head, who aid and advise the Governor in the exercise of his functions except in those situations where, under the Constitution, he is required to exercise his functions at his discretion. Article 164 relates to other provisions as to Ministers and the relevant portions are extracted below: (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor; (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State; (3) Before a Minister enters upon his office, the Governor shall administer to him the Oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule; (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister., The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule., Article 164 states that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. Such Ministers, once appointed, hold office during the pleasure of the Governor. Article 164(3) enjoins a Minister prior to entering upon his office to be administered an Oath by the Governor. The Oath of office and of secrecy is as per the forms set out for that purpose in the III Schedule., The Constitution requires, under Article 173, the candidate to be a citizen of India above the age of 25, to have subscribed before a person authorised in that behalf, an Oath or affirmation as set out under the Third Schedule and to satisfy all other qualifications as prescribed by law made by Parliament., Likewise, Article 84 requires an MP to be a citizen above 30 years in the case of a seat in the Council of States and 25 years in the case of a seat in the House of the People, to have subscribed before a person authorised in that behalf, an Oath or affirmation as set out under the Third Schedule and to satisfy all other qualifications as prescribed by law made by Parliament., The disqualifications for a candidate to be an MLA are prescribed under Article 191(1) of the Constitution as being: holding an office of profit under the Government of India or State Government; being of unsound mind as declared by a competent Court; being an undischarged insolvent; not being a citizen of India/voluntarily acquiring citizenship of a foreign State/being under acknowledgement of allegiance or adherence to a foreign State; or being disqualified by or under a Central Law., Under Article 191(2), a person shall be disqualified from being an MLA if he attracts any disqualification as under the Tenth Schedule providing for defection. Similar disqualifications are provided under Article 102(1) and (2) for being chosen as an MP. Moreover, there is an efficacious remedy available under Article 192 and the Governor shall decide if the member concerned has incurred any of the disqualifications under Article 191(1) after consultation with the Election Commission, his decision in that respect being final. There is a penalty for sitting and voting prior to making Oath or affirmation or when not qualified or when disqualified as provided under Article 193.
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A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament., For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State., A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule., If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion., If a person sits or votes as a member of either House of Parliament before he has complied with the requirements of article 99, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union., The Representation of the People Act, under Section 5, prescribes the qualifications for membership of the Legislative Assembly and states that a person shall not be qualified to fill such a seat unless, in the case of a seat reserved for the Scheduled Caste or Scheduled Tribe of that State, he is himself a member of any of those castes or tribes and is an elector for any assembly constituency in that State. There is a prescription likewise for the autonomous district of Assam. In the case of any other seat, he should be an elector for any assembly constituency in that State., The other disqualifications under Chapter III of the Representation of the People Act are conviction under certain laws under Section 8, guilt of corrupt practice under Section 8‑A, dismissal for corruption or disloyalty to the State having held office under the Government of India or any State under Section 9, a Government contractor under Section 9‑A, any person holding office under a Government company or corporation under Section 10 and failure to lodge corrupt accounts of election expenses under Section 10‑A. The disqualifications are set out under the Representation of the People Act and are specific and finite and there is no scope for expansion of the same., Section 8 enumerates conviction for certain specified offences and reads thus: (1) A person convicted of an offence punishable under (a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or subsection (1) or sub‑section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub‑section (2) or sub‑section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill‑will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) or the Indian Penal Code; (b) the Protection of Civil Rights Act, 1955, which provides for punishment for the preaching and practice of untouchability, and for the enforcement of any disability arising therefrom; (c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962; (d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967; (e) the Foreign Exchange (Regulation) Act, 1973; (f) the Narcotic Drugs and Psychotropic Substances Act, 1985; (g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987; (h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988; (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub‑section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; (j) section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991; (k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971; (l) the Commission of Sati (Prevention) Act, 1987; (m) the Prevention of Corruption Act, 1988; (n) the Prevention of Terrorism Act, 2002. A person shall be disqualified where the convicted person is sentenced to (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, and shall continue to be disqualified for a further period of six years since his release., A person convicted for the contravention of (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release., The question of whether a violation of Oath by a Minister could attract the writ of quo warranto is no longer res integra and has been the subject matter of consideration in several writ petitions., In Hardwari Lal, Ex‑Member of Parliament (Lok Sabha) v. Ch. Bhajan Lal, Chief Minister, Haryana, the Supreme Court of India was of the opinion that violation of Oath would not attract such disqualification as it was not within the enumerated grounds of disqualification provided under the Constitution. The Court observed that such breach of Oath is not a permanent disqualification or a permanent disability for a Member under the Constitution. Even in terms of Article 191 the disqualification lasts so long as the conditions exist and no further. The Court referred to the Division Bench decision of the Kerala High Court in Kallara Sukumaran v. Union of India, AIR 1986 Kerala 122. A situation was rightly conceived where a person enters an office as an unqualified person to continue so by operation of the disqualification provisions of the Constitution as in a case where a person becomes a Minister without being a Member of the Legislature of the State. In that event, he can function as such for six months whereafter he would cease to be a Minister if he is not a Member of the Assembly. Similarly a person duly elected as a Member of the Assembly may become subsequently disqualified in any of the modes mentioned under Article 191. In that event, his existing Membership is extinguished and operates as a bar for further choice of a person as a Member of the Legislative Assembly. The Court also noticed that an authority to take a decision as to disqualification referred to under Article 191 of the Constitution is the Governor who has to act in the manner specified under Article 192. The Court agreed that these provisions forcefully suggest that the Constitution exhaustively deals and provides for heads of disqualification and it is not for the Courts to expand the scope of disqualification or increase the heads of disqualification., While an Oath of office or secrecy is not an empty formality and has great constitutional significance, intervention on account of disqualification would have to relate to disqualifications enumerated under the Constitution alone., In the case of Dr. Y.S. Rajasekara Reddy and others v. Sri Nara Chandrababu Naidu and others, a writ of quo warranto was sought against Nara Chandrababu Naidu. The Court reiterated that quo warranto can be issued only to a person who usurps office or to one who has forfeited his right to office by indicating disqualification. The Bench also referred to a presumption of continued existence of qualification necessary for the appointment of a holder of office. Referring to various decisions, they reaffirmed the position that Chief Ministers and Ministers hold office during the pleasure of the Government, and it is only the Governor, the appointing authority, who has the power to dismiss., The Court went so far as to say that on the principle of joint and several liability of the Cabinet in the parliamentary system of democracy, the Governor would not be competent to dismiss either the Chief Minister or Ministers in the Cabinet for breach of Oath., In Ramachandran v. M.G. Ramachandran, the Chief Minister of Tamil Nadu, a learned single Judge of this Court considered a plea for quo warranto against the then Chief Minister alleging that he had advocated that members of the Mandram that bore his name could carry a knife with them for security purposes. It was alleged that he had breached the Oath of office taken by him which would be a constitutional impediment for his continuance in office., The writ petition was dismissed, the Court making a distinction between breach of Oath and absence of Oath itself. While the latter would result in constitutional disqualification for continuance in office, as Article 163 requires a Minister prior to assuming office to take Oath of office and of secrecy, a breach of Oath does not form part of the list of disqualifications under the Constitution., In Keisham Meghachandra Singh, three Judges of the Supreme Court of India considered questions relating to the X Schedule of the Constitution of India in the context of the 11th Manipur Legislative Assembly. On the question of disqualification, they reiterated that the question of disqualification would arise only in the context of the disqualifications enumerated and none other. They also reiterated that the power to resolve such a dispute would vest in the constitutionally appointed authority only., In the case of Dhobei Sahoo, the Orissa High Court had issued a quo warranto. On appeal, the Bench reiterated that it is clear as noon day that the jurisdiction of the High Court while issuing a writ of quo warranto is limited and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules., In K.R. Ram aswamy alias Traffic Ramaswamy, quo warranto had been sought against the then Minister for Forests on the ground that there was a violation of the Chennai City Municipal Corporation Act prohibiting erection of digital banners. The Court, referring to several judgments, reiterated the applicability of the pleasure doctrine and the fact that a complete machinery has been provided in the Constitution for that purpose., In the case of Manoj Narula, the point raised was whether a person with a criminal background or one who had been charged with offences involving moral turpitude could be appointed as Minister for the Central and State Governments. The litigation was instituted as pro bono publico on the ground that there have been unfettered appointments of Ministers who were involved in serious and heinous crimes., After dealing with the concept of democracy, the Court noted the purity and the importance of the election process referring to the judgment in Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others. The Court also referred to Union of India v. Association for Democratic Reforms and another wherein judicial note was taken of the fact that money power is gathered from black sources and once elected to power, is used for retention of power and re‑election., In Manoj Narula’s case the Court noted the criminalisation of politics. The conclusion, however, was that in the absence of a constitutional impediment or statutory prohibition, no additional prohibition could be imposed by way of judicial interpretation, as the functionaries designated with the necessary power under the Constitution are the sole repositories of power., The relations between the Governor, Executive and Legislature have been constitutionally cast and well settled and do not brook intervention by the judicial process. In Narula’s case every party and stakeholder before the Court was unanimous that politics must not be criminalised. However, even the prayer for framing possible guidelines for appointment of a Minister in the Central or the State was declined by the Court, which felt that it was only for the appropriate Legislature to decide whether such guidelines are necessary and frame the same., The discussion leads to the following conclusions: 133.1. To become a legislator and to continue as a legislator, a person should not suffer any of the disqualifications mentioned in Section 8 of the Representation of the People Act, 1951; 133.2. There does seem to be a gap in Section 8 of the Representation of the People Act, 1951 inasmuch as a person convicted of a heinous or a serious offence but awarded a sentence of less than two years imprisonment may still be eligible for being elected as a Member of Parliament; 133.3. While a debate is necessary for bringing about suitable legislation disqualifying a person from becoming a legislator, there are various factors that need to be taken into consideration; 133.4. That there is some degree of criminalisation of politics is quite evident; 133.5. It is not for this Court to lay down any guidelines relating to who should or should not be entitled to become a legislator or who should or should not be appointed a Minister in the Central Government; 134. The range of persons who may be elected to a Legislature is very wide and amongst those, who may be appointed a Minister in the Central Government is also very wide, as mentioned above. Any legislator or non‑legislator can be appointed as a Minister but must quit as soon as he or she earns a disqualification either under the Constitution or under Section 8 of the Representation of the People Act, 1951. In B.P. Singhal this Court observed that a Minister is hand‑picked member of the Prime Minister’s team. The relationship between the Prime Minister and a Minister is purely political., In addition to the above, how long a Minister should continue in office is best answered by the response to a question put to the British Prime Minister John Major who was asked to list the circumstances which render Ministers unsuitable to retain office. His written reply given to the House of Commons on 25 January 1994 was: There can be a variety of circumstances but the main criterion should be whether the Minister can continue to perform the duties of office effectively., In Nebam Rebia and Bamang Felix a Constitution Bench of the Supreme Court of India decided the ambit of power of the Governor under Article 163, reiterating the rule of Cabinet responsibility. Referring to the judgment in Samsher Singh’s case to the effect that our Constitution does not accept any parallel administration or diarchy, they also referred to the Constitution Bench judgment in U.N.R. Rao v. Smt. Indira Gandhi, where these principles were reiterated. Thus, while discretion is only available to the Governor under Article 163, it is not all‑pervasive but circumscribed by the power under the Constitution itself., Great reliance has been placed by the petitioners on the judgment in the case of K. Venkatachalam. The facts of that case are that one K. Venkatachalam had been declared elected as MLA for the Lalgudi Assembly Constituency. His election was contested and this Court allowed the writ petition on the ground that he did not possess the basic qualifications prescribed under clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of the People Act., Venkatachalam challenged the judgment. The Supreme Court of India found, as a fact, that there was an elector in the electoral roll for Lalgudi Assembly Constituency by the same name, and that Venkatachalam had fraudulently represented himself to be an elector of that constituency using the similarity in the name of that person., The question that arose for consideration was whether, in those circumstances, the jurisdiction of the Court under Article 226 of the Constitution can be exercised and the Court declare that he was disqualified to be an MLA. The Court held that Venkatachalam had, in his nomination form, impersonated a person known as Venkatachalam son of Pethu taking advantage of the fact that the first name was the same. In such circumstances, they held that the appellant would be criminally liable as he has filed his nomination on an affidavit impersonating himself and that if he were allowed to sit and vote in the assembly it would be a fraud on the Constitution. The Court stated: Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?, The decision of the High Court in declaring that he was not entitled to sit in the Assembly was upheld. This decision has been the bulwark of the petitioners’ arguments to say that commission of fraud against the Constitution can well be taken to be a disqualification., In the case of Anbazhagan K, a declaration had been sought on the ground that the resolution passed by the Tamil Nadu Legislative Assembly expelling that petitioner and nine other Members who had burnt a copy of the Constitution was incorrect., The First Bench of this Court concurred that the burning of the Constitution or defiling the same in any manner would be contrary to the Constitution and that it would be for the House to decide how to deal with such a Member. An elected representative who makes an Oath or affirmation is duty bound to bear true faith and allegiance to the Constitution of India and uphold the sovereignty and integrity of India., Burning a part of the Constitution unquestionably constitutes a breach of that Oath. However, the resolution of expulsion did not take effect on the ground that the members had incurred disqualification for committing a breach of Oath but rather, it was founded on the conduct of elected members which the Assembly considered derogatory to the dignity of the Constitution as well as the dignity of the Assembly. The relief sought was not judicial intervention by way of a disqualification and quo warranto but a challenge to the order of expulsion itself., In the present case, my conclusions in the paragraphs supra are unambiguous that the offending statements spew hate against a particular community, the Hindus, and constitute disinformation. However, these conclusions cannot be stretched so as to justify a writ of quo warranto as I would then be reading into the Constitution and the provisions of the Representation of the People Act, the disqualification of hate speech and perpetration of misinformation. The judgments cited by the individual respondents have held this to be impermissible. The definition of the word disqualified under Section 7(b) of the Representation of the People Act is as follows: 7. Definitions. In this Chapter, (b) disqualified means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State under the provisions of this Chapter, and on no other ground., Hence, a disqualification fastened upon a candidate can be under the list of disqualifications enumerated under Sections 8 to 11A only and on no other ground., There is no dispute on the question that the individuals do hold the requisite qualifications under the Constitution and the Representation of the People Act. A combined reading of the Constitution and the Representation of the People Act would thus permit no other disqualifying situations to be considered save those situations mentioned therein., The relevant provisions of the Representation of the People Act identify specific instances of conviction which would attract disqualification. Section 153‑A deals with the offence of promoting enmity between different groups of people on the ground of religion, race, place of birth, residence or language and doing acts prejudicial to maintenance of harmony., The allegations of the petitioners as against the individual respondents are exactly on point. While FIRs are stated to be pending in various States in regard to the offending statements, admittedly, there has been no conviction as of date. Thus, the relief of quo warranto as sought by the petitioners is premature as no cause of action arises at this juncture for such issuance. The relief sought thus cannot be granted., A Constitution Bench of the Supreme Court of India considered the following questions in Kaushal Kishor: 1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? 2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed against persons other than the State or its instrumentalities? 3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? 4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of collective responsibility? 5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as a constitutional tort?, The judgment was authored by two Honorable Judges and their views are as follows: 1) The grounds listed in Article 19(2) for restricting the right to free speech are exhaustive. Restrictions not found in Article 19(2) cannot be imposed on the exercise of the right conferred by Article 19(1)(a). 2) A fundamental right under Article 19/21 can be enforced against the State or its instrumentalities; it cannot be directly enforced against private persons, although it may form the basis for seeking common law remedies. A writ of habeas corpus based on Article 21 can be sought before a constitutional court, i.e., under Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court. 3) The State has a negative duty not to deprive a person of life and personal liberty except in accordance with law, and an affirmative duty to carry out obligations cast upon it under constitutional and statutory law, which may require interference where private acts threaten liberty. 4) The State’s affirmative duty to protect rights may arise when private actions threaten life or liberty, and failure to do so could breach the negative duty under Article 21.
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Can a statement made by a Minister, traceable to any affairs of the State or for protecting the Government, be attributed vicariously to the Government itself? A statement made by a Minister, even if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, provided such statement represents the view of the Government. If the statement is not consistent with the view of the Government, it is attributable to the Minister personally., Whether a statement by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, constitutes a violation of such constitutional rights and is actionable as a constitutional tort. A mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of constitutional rights and become actionable as a constitutional tort. However, if as a consequence of such a statement any act of omission or commission is performed by officers resulting in harm or loss to a person, then the same may be actionable as a constitutional tort. A proper legal framework is necessary to define the acts or omissions which would amount to constitutional torts and the manner in which the same would be redressed on the basis of judicial precedent. It is not prudent to treat all cases where a statement made by a public functionary results in harm or loss to a person as constitutional torts. Public functionaries could be proceeded against personally if their statement is inconsistent with the views of the Government. If, however, such views are consistent with the views of the Government or are endorsed by the Government, then the same may be vicariously attributed to the State on the basis of the principle of collective responsibility and appropriate remedies may be sought before a court of law., The relief sought by the petitioners in that case is different from the relief sought in these writ petitions. The facts are that the Minister for Urban Development of the Government of Uttar Pradesh made certain unacceptable statements in a press conference. The petitioners were travelling on a National Highway to attend the death ceremony of a relative when they were waylaid by a gang that snatched their cash and jewellery and gang‑raped the petitioner's wife and minor daughter. The Minister concerned claimed in a press conference that it was a political conspiracy. The petitioner thus prayed for an impartial enquiry into the matter, convinced that no justice could be obtained from the police department where the Minister had revealed such insensitivity., This judgment has been cited by Mr. Viduthalai to highlight the bench's conclusion that it is for the Legislature to adopt a voluntary model code of conduct for persons holding public offices, which would reflect constitutional morality as well as values of good governance. The bench has also suggested the creation of an appropriate mechanism such as an Ombudsman to deal with such violations as and when they arise., The petitioners request that, in the event the Supreme Court of India is not persuaded to issue a quo warranto, the prayer may be suitably moulded. It has been reiterated that the quality of the people's representatives is in the hands of the people alone, and it is the vox populi that will ultimately prevail. In Kallara Sukumaran v. Union of India and Others, a Division Bench of the Kerala High Court observed that the morality or propriety of an undesirable person continuing as a Minister is essentially a political question to be dealt with at the political level, initially by the Chief Minister, the Legislature and the public, and later by the constitutional functionaries as provided in the Constitution itself. This view is supported by the decision of the Delhi High Court in Inder Mohan v. Union of India, AIR 1980 Delhi 20, which held that whether a minister could continue in office was not a matter for the court to decide., The limits of judicial intervention are limited. In the judgment of Divisional Manager, Aravalli Golf Club and another v. Chander Hass & Another, it was held that if the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise in the next elections or by other lawful methods such as peaceful demonstrations. The remedy is not for the judiciary to take over legislative or executive functions, as that would violate the delicate balance of power enshrined in the Constitution and the judiciary lacks the expertise and resources to perform those functions. Of the three organs of the State, only the judiciary has the power to declare the limits of jurisdiction of all three organs, a power that must be exercised with utmost humility and self‑restraint. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It recognises the equality of the other two branches and fosters that equality by minimising inter‑branch interference. Judicial restraint also protects the independence of the judiciary, preventing judges from being perceived as legislators or administrators., Clearly, the individual respondents have engaged in activities that threaten the integrity of the nation and its constitutional values. Nevertheless, the Supreme Court of India is bound by the letter of law while considering the prayer for quo warranto. The list of enumerated disqualifications becomes sacrosanct and constitutes a line that cannot be breached., The doctrine of separation of powers requires that judges perform the constitutional function of safeguarding the supremacy of the Constitution while exercising the power of judicial review in a fair and even‑handed manner. Thus, while checking the encroachment of power, the judiciary must guard against encroaching beyond its own bounds., The court is informed that the petitioners and others seriously concerned have initiated multiple actions against the offending statements. The matter has been raised before the Supreme Court of India, which has issued notice to the respondents. A petition seeking disqualification is also pending before the Governor. Accordingly, the appropriate authority under the Constitution must decide the issue of disqualification having regard to all relevant parameters., The respondents have urged that the freedom to practice religion guaranteed under Article 25 is subservient to other freedoms, including freedom of speech guaranteed under Article 19. This argument cannot be taken as a sanction for unconstitutional, insensitive or erroneous statements derogatory of a particular faith, especially when made by holders of constitutional posts., I conclude this point by quoting Swami Vivekananda: 'Enough! There has been enough of criticism, there has been enough of fault‑finding. The time has come for rebuilding, for reconstructing; the time has come for us to gather all our scattered forces, to concentrate them into one focus, and through that, to lead the nation on its onward march, which for centuries has been stopped. The house has been cleansed; let it be inhabited anew.', Whatever be one's faith, language or allegiance, the laws of the universe guarantee that Dharmo Rakshati Rakshitah (Dharma protects those who protect it). With this, these writ petitions stand disposed. Barring those Members of Parliament that have been ordered specifically in the course of this order, all other connected miscellaneous petitions are closed. No costs. Dated 06.03.2024.
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Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08 September 2020 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as the National Commission) in Revision Petition Number 2940/2018, by which the learned National Commission dismissed the said revision petition and confirmed the order passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur, Bench Number 1 (hereinafter referred to as the State Commission) dated 3 July 2018 passed in First Appeal Number 1234 of 2017 confirming the order passed by the District Consumer Disputes Redressal Forum, Alwar (hereinafter referred to as the District Forum) allowing the complaint filed by the respondent herein and directing the Northern Western Railway and another to pay to the complainant respondent herein Rupees fifteen thousand for taxi expenses, Rupees ten thousand towards booking expenses along with Rupees five thousand each towards mental agony and litigation expenses. The original respondents Northern Western Railway and another have preferred the present special leave petition., The respondent booked four tickets for his family including himself from the Northern Western Railway in Ajmer Jammu Express Train Number 12413 for the journey from Kishangarh to Jammu Tawi on 10 June 2016. He also booked return reserved tickets from the same train for 17 June 2016. The train, after starting from Ajmer, was scheduled to reach Jammu Tawi at 08:10 a.m. on 11 June 2016. As per the respondent, he had to take a flight at 12:00 noon from Jammu to Srinagar on SpiceJet, which was to land at Srinagar at 12:15 p.m. However, the train was delayed by four hours and reached Jammu at 12:00 noon. Since Jammu Airport is at a far distance from Jammu Railway Station and passengers are required to reach the airport at least two hours prior to departure, they missed the flight. Consequently, the respondent booked a private taxi and reached Srinagar. The original complainant filed a complaint before the District Forum against the petitioners being Complaint Case Number 993 of 2016 and claimed loss of Rupees nine thousand as air fare, Rupees fifteen thousand towards taxi hire charges for going from Jammu to Srinagar, and Rupees ten thousand on account of booking of a boat in Dal Lake. The claim petition was opposed by the petitioners., The learned District Forum, by order dated 14 September 2017, allowed the complaint observing that there was a deficiency in service and that the complainant respondent suffered as a result. The District Forum directed the petitioners to pay to the complainant Rupees twenty‑five thousand as compensation, Rupees five thousand each towards mental agony and litigation charges within one month from the date of the order, failing which the complainant would be entitled to nine percent simple interest. The order passed by the District Forum was confirmed by the State Commission in an appeal and thereafter by the National Commission by the impugned judgment and order passed in the revision petition., Ms. Aishwarya Bhati, learned Additional Solicitor General, has vehemently submitted that late running of a train cannot be said to be a deficiency in service on the part of the railways. She submitted that in view of Rule 114 and Rule 115 of the Indian Railway Conference Association Coaching Tariff Number 26 Part I (Volume I), there shall be no liability of the railways to pay compensation for late running of a train. She further submitted that there may be a number of reasons for delay and late running of a train., Having heard Ms. Aishwarya Bhati, learned Additional Solicitor General and having gone through and considered the orders passed by the District Forum confirmed by the State Commission and the National Commission, we are of the opinion that in the facts and circumstances of the case, the impugned orders awarding compensation to the complainant do not warrant any interference by the Supreme Court of India., It is not in dispute that there was a delay in the arrival of the Ajmer Jammu Express Train by four hours. As per the scheduled time, the train was to reach Jammu Tawi at 08:10 a.m. on 11 June 2016; however, it reached Jammu Tawi at 12:00 noon. Considering the time schedule fixed by the railways that the train would reach Jammu Tawi at 08:10 a.m., the complainant booked the connecting flight from Jammu to Srinagar, which was to take off at 12:00 noon. Because the train arrived at 12:00 noon instead of the scheduled time, the complainant missed the flight and was required to travel to Srinagar by taxi. The complainant also suffered loss of Rupees nine thousand as air fare, Rupees fifteen thousand towards taxi hire charges and loss of Rupees ten thousand on account of booking of a boat in Dal Lake. No evidence was led by the railways explaining the delay or late arrival of the train at Jammu. The railways were required to lead evidence and explain the late arrival to establish that the delay occurred because of reasons beyond their control. At least the railways were required to explain the delay, which they failed to do. It cannot be disputed that every passenger’s time is precious and they might have booked tickets for further journey, as in the present case from Jammu to Srinagar and thereafter further journey. Therefore, unless and until evidence is laid explaining the delay and it is established and proved that the delay occurred beyond the railways’ control or there was some justification for delay, the railway is liable to pay compensation for delay and late arrival of trains. Consequently, in the facts and circumstances of the case and in the absence of any evidence to explain the delay, the District Forum, the State Commission and the National Commission have rightly observed and held that there was a deficiency in service and therefore the railway is liable to pay compensation to the passenger complainant for the loss suffered and for the agony endured. These are the days of competition and accountability. If public transportation has to survive and compete with private players, it must improve the system and its working culture. Citizens cannot be at the mercy of the authorities or administration. Somebody has to accept responsibility. No interference of the Supreme Court of India is called for, in exercise of powers under Article 136 of the Constitution of India., The special leave petition is, accordingly, dismissed. New Delhi; 06 September 2021. Petition for Special Leave to Appeal Number 13288/2021 (Arising out of impugned final judgment and order dated 08 September 2020 in Revision Petition Number 2940/2018 passed by the National Consumer Disputes Redressal Commission, New Delhi). Date: 06‑09‑2021. This petition was called on for hearing today. For Petitioners: Ms. Aishwarya Bhati, Additional Solicitor General; Mr. Amit Sharma, Advocate; Mr. Prashant Singh, Advocate; Mr. Noor Rampal, Advocate; Mr. Amrish Kumar, Advocate on Record. For Respondents: Upon hearing the counsel the Supreme Court of India made the following: The Special Leave Petition is dismissed in terms of the signed order. Pending applications, if any, stand disposed of. (Signed order is placed on the file)., Petition for Special Leave to Appeal Number 13288/2021 (Arising out of impugned final judgment and order dated 08 September 2020 in Revision Petition Number 2940/2018 passed by the National Consumer Disputes Redressal Commission, New Delhi). Date: 06‑09‑2021. This petition was called on for hearing today. For Petitioners: Ms. Aishwarya Bhati, Additional Solicitor General; Mr. Amit Sharma, Advocate; Mr. Prashant Singh, Advocate; Mr. Noor Rampal, Advocate; Mr. Amrish Kumar, Advocate on Record. For Respondents: Upon hearing the counsel the Supreme Court of India made the following., Heard Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for the petitioners.
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Case: WRIT - C No. 37500 of 1999. Petitioner: Nar Singh and Others. Respondent: State of Uttar Pradesh and Others. Counsel for Petitioner: V. D. Yadav, Vishesh Kumar. Counsel for Respondent: Chief Standing Counsel Honourable Rohit Ranjan Agarwal, Judge., The list is revised. Learned counsel for the petitioners, Sri Satish Mohan Tiwari, learned Standing Counsel appearing for the State, makes a prayer for adjourning the matter on the ground that his file has not come from the office of Chief Standing Counsel., A few minutes earlier Sri K. R. Singh, Chief Standing Counsel, was present in the Allahabad High Court and assured the Court that all the files will be in Court in time and that there is no need for a biometric system for attendance of the employees in the office of Chief Standing Counsel., It is 11:10 A.M. and most of the files from the office of Chief Standing Counsel had not arrived. It has been informed that due to the late coming of the employees in the office of Chief Standing Counsel, files are not being sent to the Court in time., The Allahabad High Court notes that on several recent occasions the files have not come to the Court in time and the matters have been adjourned because the files of the Standing Counsel were not with the Court. It appears that the office of Chief Standing Counsel is not functioning properly and the files are not reaching the Court in time because the employees are not coming to the office of Chief Standing Counsel on time, although the Standing Counsel are present on time., It has also come to the knowledge of the Court that some employees from the office of Chief Standing Counsel are outsourced staff who bring files to the Court and reach the office late. The time has come for the requirement of a biometric system for attendance of employees in the office of Chief Standing Counsel., The Allahabad High Court directs the Principal Secretary (Law) and Law and Revenue Government of Uttar Pradesh, Lucknow, to introduce a biometric system in the office of Chief Standing Counsel, Allahabad, within two weeks and to ensure that files of each matter listed in the Court reach the Court by 10:00 A.M., when the Court sits and starts its judicial work., The Advocate General, Uttar Pradesh, is also requested to take necessary action for smooth and proper functioning in the office of Chief Standing Counsel, Allahabad., The matter is listed on 16 January 2023. On that day the Principal Secretary (Law) and Law and Revenue Government of Uttar Pradesh, Lucknow, shall be present in the Court and shall inform the Court of the steps taken in implementing the biometric system in the office of Chief Standing Counsel to ensure attendance of all employees on time and to further see that all files reach the Court in time., Sri Satish Mohan Tiwari, learned Standing Counsel, shall inform the Advocate General, Uttar Pradesh, about this order during the course of the day. Further, the Registrar (Judicial) (Compliance) shall forward a copy of this order to the Principal Secretary (Law) and Law and Revenue Government of Uttar Pradesh, Lucknow, within 24 hours.
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This batch of writ petitions have been filed by various petitioners employed in the respondent schools at various teaching and non‑teaching posts such as Trained Graduate Teacher, Primary Elementary Teacher, Post Graduate Teacher, Primary Teacher, Librarian, Assistant Teacher, Non‑Teaching Teacher, Lab Attendant, Lab Assistant, Sports Attendant, Assistant Librarian, Instructor (Dance), Driver, Maid, Sweeper, Aaya, Yoga Teacher, Peon, Electrician, Mali, Housekeeper, Nurse etc., against the respondent schools, and also against the Government of National Capital Territory of Delhi through the Directorate of Education., The petitioners, by way of the above‑said petitions, are seeking benefits of the Sixth Central Pay Commission (hereinafter Sixth CPC) along with the arrears, benefits under the Seventh Central Pay Commission (hereinafter Seventh CPC) along with the arrears, and retirement benefits such as gratuity, leave encashment, Dearness Allowance (hereinafter DA), Medical Allowance (hereinafter MA), House Rent Allowance (hereinafter HRA), Travel Allowance (hereinafter TA), etc., along with the interest and costs which are due as per the guidelines of Seventh CPC. Some of the petitioners have also sought the benefits of the Modified Assured Career Progression Scheme (hereinafter MACP)., The petitioners in the connected petitions seek similar reliefs; therefore, this Delhi High Court deems it appropriate to list out the particulars, which have been gathered from these writ petitions in the following manner:, 8686/2022 The petitioner worked from July 2019 as Hindi teacher with the respondent school. For respondent No. 1 to implement its order dated 22nd November 2021, based on the order dated 9th February 2016, passed in Mukesh Verma & Ors. Vs. Director of Education, the petitioner seeks payment of salary as per the Sixth Central Pay Commission and other benefits, payment of Seventh Pay for the benefit of promotion to the post of Post Graduate Teacher (Hindi). Private Unaided School., 7349/2023 The petitioners numbered 1, 3, 4, 5 and 6 worked as Establishment Office staff and Chowkidar. They seek fixation of payments in terms of Seventh Pay CPC from 1st January 2016, payment of arrears of salary arising therefrom, superannuation benefits along with interest at 24 %, and payment of gratuity and leave encashment based on salaries in terms of Seventh Pay CPC from 1st January. The petitioner numbered 2 retired on 31st July 2021 and seeks the same benefits. Private Unaided School., The petitioner worked as Primary Teacher with the respondent school. The petitioner seeks re‑fixation of salary and payment of arrears of salary as per the Sixth CPC, re‑fixation of salary and payment of arrears of salary as per the Seventh CPC, payment of retiral dues including gratuity, leave encashment along with interest at 18 %, and payment of full salary from 9th February 2018 till 3rd August 2018 as per Rule 121 of Delhi School Education Rules, together with costs of Rs 15,000. Private Unaided School, order dated 12th October 2021 passed by the Delhi School Tribunal in Appeal No. 62 of 2018., The petitioner was working as Librarian with the respondent school and continued till the date of retirement. The petitioner seeks payment of allowances and other benefits (including arrears of DA) in terms of the Sixth Pay CPC from 1st January 2006, together with all consequential benefits and interest at 24 %; and payment of allowances and other benefits including arrears of DA in terms of the Seventh Pay CPC from 1st January 2016, together with consequential benefits and interest at 24 %. Private Unaided School., 7402/2018 The petitioner worked as Assistant Teacher with the respondent school. The petitioner seeks payment and revision of salary, allowances and other benefits as per the Seventh CPC, the first up‑gradation as per the Assured Career Progression (ACP) scheme and the second up‑gradation according to the Modified Assured Career Progression (MACP) scheme, with all arrears and interest at 24 %. The petitioner also seeks payment of Dearness Allowances as per the notification issued by the Government, with interest at 24 %, and payment of earned salary of May 2018 with interest at 24 %. Private Unaided School., The petitioner is a registered society under the Societies Act. The respondent school, Samarth Shiksha Smriti, is a registered society that runs various schools on a charitable basis. The petitioner seeks setting aside of the impugned orders dated 9th February 2018 and 31st July 2018, ordained by the Department of Education in the matter of Ashok Kumar Maheshwari Vs. MCL Saraswati Bal Mandir School. Private Unaided School., The petitioners numbered 1 to 6 worked as Librarian, Lab Attendant, Lab Assistant, Sports Attendant, Assistant Librarian, Instructor (Dance), Driver, Maid, Sweeper, Peon, Electrician, Mali, Housekeeper and Nurse respectively. They seek payment of salary, all allowances including arrears of DA as per the Sixth CPC, fixation and payment of salary and arrears of salary and all benefits as per the Seventh CPC along with interest at market rate. Private Unaided School.
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5717/2023 – The petitioner worked as a Trained Graduate Teacher (TGT) with the respondent school. The petitioner seeks fixation of salary and payment of arrears of salary, Dearness Allowance, House Rent Allowance and Travel Allowance and grant of the benefits of gratuity and leave encashment in terms of the 7th Pay Commission along with interest at 24% thereupon., 5767/2023 – The petitioner worked as a Trained Graduate Teacher (TGT) with the respondent school. The petitioner seeks fixation of salary and payment of arrears of salary and grant of the benefits of gratuity and leave encashment, Dearness Allowance, House Rent Allowance and Travel Allowance as per the 7th Pay Commission along with interest at 24% thereupon., 6447/2023 – The petitioner worked as a Trained Graduate Teacher (TGT) with the respondent school and retired on 30th November 2020. The petitioner seeks payment of arrears of salary and all benefits as per the 6th Pay Commission along with interest thereupon, as well as payment of arrears of salary, all benefits and arrears of gratuity as per the 7th Pay Commission with interest, and payment of arrears of gratuity in terms of the 7th Pay Commission with interest., 6465/2023 – The petitioner was appointed on probation as respondent Nos. 1 and 2 on 3 January 1994. The petitioner seeks that respondent Nos. 1 and 2 implement the 7th Pay Commission under the directions of the respondent school vide order dated 17 October 2017, effective from 1 January 2016, and pay all arrears, including arrears of gratuity, as per the 7th Pay Commission with interest. The petitioner also seeks payment of arrears of the 6th Pay Commission from 1 January 2006 with interest., 6486/2023 – The petitioner was appointed on probation as a Probationary Teacher. The petitioner seeks that respondent Nos. 1 and 2 implement the 7th Pay Commission under the directions of the respondent school vide order dated 17 October 2017, effective from 1 January 2016, and pay all arrears, including arrears of gratuity, as per the 7th Pay Commission with interest. The petitioner also seeks that respondent Nos. 1 and 2 pay arrears of the 6th Pay Commission from 1 January 2006 with interest., Petitioners Nos. 1 to 61 worked as Librarians and Lab Assistants in the respondent school. They seek payment of the arrears of salary as per the 6th Pay Commission and as per the 7th Pay Commission, including Dearness Allowance, House Rent Allowance, Travel Allowance and grant of benefits of gratuity and leave encashment, with interest at 24% thereupon., The petitioner worked as Establishment In‑Charge in the respondent school. The petitioner seeks release of gratuity as per revised norms, grant of terminal benefits, gratuity, leave encashment, payment of arrears of Travel Allowance/Dearness Allowance and interest, as per the 6th Pay Commission and the 7th Pay Commission., 803/2019 – The petitioner worked as a Nursery Teacher with the respondent school. The petitioner seeks payment of arrears of salary and grant of benefits of gratuity and leave encashment, Dearness Allowance, House Rent Allowance and Travel Allowance as per revised rates under the 6th and 7th Pay Commissions, with interest at 24% thereupon., 5565/2022 – The petitioner worked as a Librarian since 1 January 2000 with the respondent school. The petitioner seeks payment of arrears of salary arising out of the 6th Pay Commission from 1 January 2016 with interest at 24% thereupon, fixation of payment in terms of the 7th Pay Commission from 1 January 2016 and payment of arrears of salary with interest at 24% thereupon, payment of Dearness Allowance as declared and revised by the Government of Delhi with arrears and interest at 24% thereupon, and restoration of salary for the month of February 2020 with interest at 24% thereupon., 5587/2022 – The petitioner worked as an Assistance Teacher since 1 April 2009 with the respondent school. The petitioner seeks payment of arrears of salary arising out of the 6th Pay Commission from 1 January 2016 with interest at 24% thereupon, fixation of payment to the petitioner in terms of the 7th Pay Commission from 1 January 2016 and payment of arrears of salary arising therefrom with interest at 24% thereupon, and payment of Dearness Allowance as declared and revised by the Government of Delhi with arrears and interest at 24% thereupon., 6333/2020 – The petitioner works as an Art & Craft Teacher with the respondent school. The petitioner seeks fixation of salary and payment of arrears of salary, other allowances and benefits such as National Pension Scheme Bonus, Leave Travel Concession etc., as per the 7th Pay Commission, with interest at 12% thereupon., 6317/2023 – The petitioner worked as an Assistant Teacher with the respondent school. The petitioner seeks payment of arrears of salary, arrears of all allowances and Dearness Allowance and grant of benefits of gratuity and leave encashment as per the 7th Pay Commission with interest at 24% thereupon, payment forthwith of the interim amount already released to other employees as per the 7th Pay Commission, and payment of the above benefits to the petitioner with interest at 24% thereupon., Petitioners Nos. 1 and 2 worked as Trained Graduate Teachers and Assistant Teachers with the respondent school. They seek payment of arrears of salary as per the 6th Pay Commission with interest at 24% thereupon, as per the 7th Pay Commission with interest at 24% thereupon, and arrears of salary that were illegally deducted, with interest at 24% thereupon., 11225/202 – The petitioner worked as a Lab Attendant with the respondent school. The petitioner seeks fixation of salary and payment of salary and other benefits including arrears of Dearness Allowance, as per the 6th and 7th Pay Commissions., 6848/2023 – The petitioner worked as a Trained Graduate Teacher with the respondent school. The petitioner seeks payment of arrears of salary and arrears of all allowances along with Dearness Allowance as per the 7th Pay Commission, with interest at 9% thereupon., The instant batch of petitions is bifurcated into the following categories: (i) First set of writ petitions pertain to allegations that the respondent schools and the Directorate of Education (DoE) have failed to properly implement the recommendations of the 6th Pay Commission, leading to non‑payment of arrears; (ii) Second set of writ petitions relate to submissions that petitioners are entitled to salary and arrears as per the recommendations of the 7th Pay Commission, which have not been fully implemented; (iii) Third set of writ petitions concern grievances of retired petitioners seeking arrears of retirement/terminal benefits as per the recommendations of the 6th and 7th Pay Commissions such as Dearness Allowance, Travel Allowance, Medical Allowance etc., It is submitted that the learned counsel appearing on behalf of the petitioners contend that the respondent schools, contrary to the notifications issued by the DoE, have unnecessarily withheld salaries and other consequential benefits of teaching and non‑teaching staff, to which they are legally entitled. Pursuant to the alleged inaction and non‑compliance with the directions of the DoE, the petitioners have prayed before the High Court of Delhi for issuance of directions to the respondent schools to pay the petitioners their salaries, retirement/terminal benefits and arrears along with interest and costs accrued in terms of the 6th and 7th Pay Commissions., Since the grievance of the petitioners in this batch of petitions is similar, the High Court of Delhi deems it appropriate to decide the issues framed herein by way of a common judgment. Accordingly, the Court has culled out the facts from writ petition bearing W.P. (C) No. 3592/2022., The petition bearing W.P. (C) No. 3592/2022, under Article 226 of the Constitution of India, has been filed on behalf of the petitioners seeking: (a) a writ of mandamus directing Respondent Nos. 1 and 2 to implement the 7th Pay Commission as directed by Respondent No. 3 vide order dated 17 October 2017 effective from 1 January 2016 and consequently directing Respondent Nos. 2 and 3 to pay all arrears as per the 7th Pay Commission along with interest from 1 January 2016 till payment to Petitioners Nos. 1 to 6; (b) a writ of mandamus directing Respondent Nos. 1 and 2 to release arrears towards the 7th Pay Commission along with interest to Petitioners Nos. 7 to 13 from 1 January 2016 to September 2019; (c) a writ of mandamus directing Respondent No. 3, after hearing both parties, to pass a speaking and reasoned order on the complaint dated 13 March 2021 within four weeks; and (d) such other order(s) as the High Court of Delhi may deem fit and proper., The petitioners are permanent teachers of Respondent No. 1, namely Adarsh World School, a private unaided recognized school run by Respondent No. 2, Sri Sankara Education Society. Respondent No. 3 is the Directorate of Education, which regulates and governs the functioning of schools recognized by it., Respondent No. 3 passed order No. DE.15(318)/PSB/2016/19786 dated 17 October 2017, directing all unaided private recognized schools to implement the 7th Pay Commission recommendations effective 1 January 2016 and framing guidelines for the same. By that order, Respondent No. 3 directed payment of the first installment by 31 January 2018 and the second installment by 30 June 2018. An additional order dated 9 October 2019 reiterated the directive to all recognized unaided private schools to comply with the 7th Pay Commission recommendations. Subsequently, in October 2019, Respondent Nos. 1 and 2 implemented the recommendation of the 7th Pay Commission and paid salaries accordingly., The petitioners state that the respondent school paid the salary as per the guidelines only to Petitioners Nos. 7 to 13, while Petitioners Nos. 1 to 6 were not paid in terms of the 7th Pay Commission. Further, Respondent Nos. 1 and 2 did not pay the arrears of the 7th Pay Commission to Petitioners Nos. 7 to 13 from 1 January 2016 till September 2019., In January 2019, Respondent No. 1 convened a meeting and informed the petitioners and other employees that it would take 50 % as cash back from their salary, which the petitioners vehemently opposed and refused., The petitioners lodged a complaint dated 13 March 2021 before Respondent No. 3. A representation dated 22 November 2021 was made before Respondent No. 3 requesting it to direct Respondent Nos. 1 and 2 to implement the 7th Pay Commission recommendation. The representation was also sent to Respondent No. 1 but to no avail., Respondent No. 3, in response to an RTI application made by the petitioners, sent a reply dated 6 December 2021 and enclosed a letter dated 1 October 2021 written to Respondent No. 1, wherein the DoE communicated to the respondent school regarding the complaint made by the petitioners against the respondent school., The petitioners further state that Respondent No. 3 has neither passed any speaking order nor taken any decision on the representation dated 22 November 2021. Aggrieved, the petitioners have approached the High Court of Delhi seeking implementation of the recommendations of the 7th Pay Commission in their favour, claiming legal entitlement thereto., Learned counsel for the petitioners submitted that the non‑implementation of the 7th Pay Commission recommendations by Respondent Nos. 1 and 2, despite notification by the DoE, violates Articles 14, 16 and 21 of the Constitution of India., It is submitted that the DoE passed an order dated 17 October 2017 directing all private unaided recognized schools, such as Respondent No. 1, to implement the recommendations of the 7th Pay Commission for their employees., Despite the above directions, the respondent school has failed to comply in spirit. The direction has not been fully implemented to date for Petitioners Nos. 1 to 6. Respondent No. 1 has adopted a pick‑and‑choose method illegally and arbitrarily, implementing the directions only for Petitioners Nos. 7 to 13., The petitioners are entitled to equal pay in accordance with the guidelines of the 7th Pay Commission, mandated by Section 10 of the Delhi School Education Act, 1973 (DSE)., According to Section 10 of the DSE, a recognized private school's pay scale and allowances, medical services, pension, gratuity, provident fund and other permitted benefits must not be less than those of employees in the same position at schools run by the appropriate authority., Violation of such express provisions constitutes a flagrant abuse of the law and is arbitrary in nature., The petitioners are entitled to arrears of their benefits/salaries effective 1 January 2016, and Respondent No. 1 is duty‑bound to implement the same for all its employees in terms of the guidelines recommended in the 7th Pay Commission., Respondent No. 1, being an unaided private recognized school, has an obligation under the DSE that it cannot evade its statutory responsibility and must pay the statutory dues to the petitioners., All similarly situated schools have implemented the 7th Pay Commission and cleared the arrears. Hence, it is imperative for Respondent Nos. 2 and 3 to implement the 7th Pay Commission and clear all arrears., The denial of implementation as submitted above violates Articles 14 and 16 of the Constitution of India as well as Section 10 of the DSE., The respondent school, apart from not implementing the recommendations, is also illegally taking cash back from the petitioners' salaries, an unlawful act amounting to extortion. Such practice must be stopped and the exploitation of teachers/employees taken seriously., The respondent school has initiated disciplinary proceedings against some petitioners, which are baseless and appear to be a counter‑blow to the present petition., Teachers of private unaided or private unaided minority schools are entitled to the same perks and salary as government school employees in the same position. The conduct of the unaided minority schools in not adhering to the statutory mandate is a gross abuse of law., The law of limitation is not applicable to the facts and circumstances of the present case. The petitioner's counsel relies on judgments such as Keraleeya Samajam v. Pratibha Dattatray Kulkarni, 2021 SCC OnLine SC 853; Randhir Singh v. Union of India, (1982) 1 SCC 618; Kuttamparampath Sudha Nair v. Sri Sathya Sai Vidya Vihar, 2021 SCC OnLine Del 2511; and Frank Anthony Public School Employees' Assn. v. Union of India, (1986) 4 SCC 707., The observations made in State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, are misplaced as that case involved a challenge to a notification after 14 years before the High Court, unlike the instant petition., Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the reliefs as prayed for be granted., Learned counsel for Respondent Nos. 1 and 2 vehemently opposed the instant petition, submitting that it is liable to be dismissed on the ground of limitation and for being devoid of merit., It is submitted that the writ petition seeking the aforesaid directions was filed in February 2022, i.e., more than three years after the DoE issued guidelines for implementation of the 7th Pay Commission on 17 October 2017. Hence, the High Court of Delhi must first examine whether the petitioners approached the Court after substantial delay and laches. The respondent relies on judgments State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 and Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu., The High Court of Delhi, under Article 226 of the Constitution of India, has discretion to refuse jurisdiction in favour of a party who files a writ petition after considerable delay and is otherwise guilty of laches. Such discretion must be exercised with utmost caution and care., Respondent Nos. 1 and 2 concede that they are bound by the provisions of the DSE, but claim that obligations could not be fulfilled due to major hindrances on the part of the DoE, i.e., Respondent No. 3., The respondent school could not adhere to the statutory provisions in implementing the 7th Pay Commission recommendations in its entirety due to lack of funds., The respondent school has made numerous requests to the DoE to hike tuition fees owing to economic difficulties, but to no avail. Consequently, the school is unable to release arrears to Petitioners Nos. 7 to 13 from 1 January 2016 up to September 2019, nor enhance salaries and allowances of Petitioners Nos. 1 to 6 from 1 January 2016 to date., In compliance with Rule 180(1) of the Delhi School Education Rules, 1973 (DSE R), Respondent Nos. 1 and 2 have regularly filed (i) financial accounts, receipts and payment accounts along with income‑expenditure statements and balance sheets audited by a Chartered Accountant; (ii) budget estimates of receipts and payments for the session; (iii) enrolment of students; (iv) certificates of scholarship concessions; (v) staff statements as on the end of the financial year; (vi) schedule of fees for the session; and (vii) statements of salary disbursement. Thus, the respondents have adhered to the statutory mandate., From the financial statements for the year 2019‑2020, Respondent No. 2 had an excess expenditure over income of Rs 56,18,789.04/‑; for 2020‑2021, an excess of Rs 4,60,377.39/‑; and for 2021‑2022, an excess of Rs 29,82,452.10/‑., In the preceding three financial years, Respondent No. 2 has been running into losses and has been unable to meet its expenditures, as evident from the aforementioned financial statements., During the pandemic period, the respondent school suffered from economic slowdown. The DoE issued various guidelines vide orders dated 18 April 2020, 13 August 2020, 28 August 2020 and 1 July 2021, which the respondent school, despite financial constraints, duly abided by., The issue of financial crunch has been repeatedly communicated to the DoE, yet the DoE has remained adamant in not hiking tuition fees or any other component to recover the losses., In the absence of collection of school fees and other components as per the directions issued by Respondent No. 3, the collection of funds decreased substantially, affecting the financial position of Respondent No. 1 and hindering compliance with the 7th Pay Commission recommendations., To bridge the gap between income and expenditure, Respondent No. 2 proposed an enhancement of fees for the academic session 2022‑23, but no enhancement has been approved so far., No cash backs are being taken from the petitioners; the allegation is baseless. Respondent No. 2 makes salary payments to the petitioners in compliance with the directions issued by Respondent No. 3, after making statutory deductions., The respondent school is unable to meet its day‑to‑day expenditures; therefore, the petitioners' entitlement under the 7th Pay Commission is not denied, but Respondent Nos. 1 and 2 undertake to pay pending amounts if either the pending application for fee enhancement is allowed by Respondent No. 3 or funds are arranged from other sources., Respondent No. 3 submitted that Respondent No. 1 is an unaided private school recognized by the DoE under the provisions of the DSE and the Delhi School Education Rules (DSER). Respondent No. 2, i.e., the managing committee of Respondent No. 1, is bound to comply with the provisions of the DSE and DSER, as well as the orders and notifications issued by the DoE., The managing committee of the respondent school is the appointing authority of its employees and is bound to follow the statutory provisions of the DSE and DSE R in managing the school’s affairs and to release all benefits envisaged in the DSE and DSE R, and the directions issued by Respondent No. 3 from time to time., As per sub‑rule (xviii) of Rule 50 of DSE R, Respondent No. 3 (DoE) may direct any private unaided recognized school to furnish reports and information as required by the Director and to comply with such instructions to secure fulfillment of the condition of recognition or removal of deficiencies., Section 10 of the DSE prescribes that a recognized private school's pay scale and allowances, medical services, pension, gratuity, provident fund and other permitted benefits should not be less than those of employees in the same position in schools run by the appropriate authority., The DoE has issued various office orders regarding implementation of the 7th Pay Commission recommendations in schools, including private unaided schools. DoE vide order dated 25 August 2017 directed private unaided schools to implement the 7th Pay Commission recommendations effective 1 January 2016 and to pay salaries, allowances etc. to their employees. A similar order dated 9 October 2019 directed managing committees of all private unaided schools to implement the Central Civil Services (Revised Pay) Rules, 2016, with respect to regular employees of the corresponding status as adopted by the DoE for employees of schools owned by the appropriate authority., Therefore, Respondent No. 1 school is bound to fix the pay of the petitioners in terms of the 7th Pay Commission effective 1 January 2016 and to pay their salaries and arrears accordingly. Hence, the instant petition may be allowed and the reliefs as prayed for may be granted by the High Court of Delhi., In rejoinder, petitioners submitted that it is a matter of inquiry for Respondent No. 3 to scrutinise the financials of Respondent Nos. 1 and 2 and the allegation of paucity of funds. If there was scarcity of funds, nothing prevented the respondent school from applying for fee enhancement in 2017, 2018, 2019, 2020 or 2021. The fee‑hike application is therefore an afterthought to evade liability., In the present batch, the petitioners have filed their respective writ petitions, raising pleas that arrears of salaries and other benefits have not been paid as per the recommendations of the 6th and 7th Pay Commissions. The respondents have filed counter‑affidavits and the petitioners have filed rejoinders. All written submissions are on record., The matter was heard at length with arguments advanced by learned counsel on both sides. The High Court of Delhi has perused the entire material on record and considered the factual scenario, judicial pronouncements and pleadings., By way of this combined judgment, the High Court of Delhi will address various issues pertaining to the present batch of petitions. The common issues to be adjudicated are: (i) applicability of the recommendations of the 7th Pay Commission on recognized private unaided schools and recognized private unaided minority schools along with arrears of the 6th Pay Commission (salaries, arrears of salaries and retirement/terminal benefits); (ii) delay and laches in claiming arrears of retirement/terminal benefits, arrears of salaries under the 6th Pay Commission, and arrears of salaries, allowances etc. under the 7th Pay Commission.
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Petitioners claim that even though the Directorate of Education has implemented the recommendations of the 7th Central Pay Commission for employees of recognized private unaided schools and recognized private unaided minority schools, there is still willful and intentional disobedience by the respondent schools and their management and they have not been willing to comply with the directions of the Directorate of Education., Pursuant to recommendations of the 7th Central Pay Commission, the Directorate of Education issued a notification dated 17 October 2017, whereby all the private recognized schools were asked to implement the same. The relevant portion of the notification is reproduced: In continuation of this Directorate's Order No. DE.15(318)/PSB/2016/18117 dated 25/08/2017 and in exercise of the powers conferred under section 17(3) and section 24(3) of the Delhi School Education Act, 1973 read with subsections 3, 4 and 5 of Section 18 of the Delhi School Education Act, 1973 and with rules 50, 177 and 180 of the Delhi School Education Rules, 1973 and in continuation of the previous orders No. DE.15/Act/DuggaI.Com/203/99/23039 23988 dated 15.12.1999, F.DE15/Act/2K/243/KKK/883-1982 dated 10.02.2005, DE.15/Act/2006/738-798 dated 02.02.2006, relevant paragraphs of F.DE/15 (56)/Act/2009/778 dated 11.02.2009, F.DE-15/ACT-I/WPC-4109/13/6750 dated 19.02.2016, 16.04.2016 & F.DE/PSB/2017/16604 dated 03/07/2017, I, Saumya Gupta, Director of Education, hereby issue the following directions to all the unaided private recognized schools in the National Capital Territory of Delhi for the implementation of the 7th Central Pay Commission's Recommendations under Central Civil Services (Revised Pay) Rules, 2016 with effect from 01.01.2016., General instruction for all private unaided recognized schools, irrespective of land status: (a) A fee hike is not mandatory for recognized unaided schools in the NCT of Delhi. (b) All schools must first explore the possibility of utilizing existing reserves to meet any shortfall in payment of salaries and allowances as a consequence of increase in salaries and allowances of employees. (c) The schools should not consider the increase in fee to be the only source of augmenting their revenue; they should also venture upon other permissible measures for increasing revenue receipts. (d) Interest on deposits made as a condition precedent to the recognition of the schools and as pledged in favour of the Government should also be utilized for payment of arrears in the present case. (e) A part of reserve fund which has not been utilized for years together may also be used to meet the shortfall before proposing a fee hike. (f) Fees/funds collected from the parents/students shall be utilized strictly in accordance with rules 176 and 177 of the Delhi School Education Rules, 1973. No amount shall be transferred from the recognized unaided school fund of a school to the society or the trust or any other institution. (g) The tuition fee shall be so determined as to cover the standard cost of establishment including provisions for dearness allowance, bonus, etc., and all terminal benefits as also the expenditure of revenue nature concerning the curricular activities. No fees in excess of the amount so determined shall be charged from the students/parents. (h) No school student appearing in Board examination shall be denied admit card, school leaving certificate or any other document, or be disallowed from appearing in the Board Examination on account of any non‑payment or delayed payment arising out of this order. (i) Every recognized unaided school covered by the Act shall maintain accounts on the principles applicable to non‑business/not‑for‑profit organizations as per Generally Accepted Accounting Principles (GAAP). Such schools shall prepare their financial statements consisting of Balance Sheet, Profit & Loss Account and Receipt and Payment Account every year as per proforma prescribed by the department vide order dated 16/04/2016. (j) Every recognized unaided school shall file a statement of fees latest by 31 March every year before the ensuing session under section 17(3) of the Act as per proforma prescribed by the department vide order no. F.DE/PSB/2017/16604 dated 03/07/2017. (k) Though increase in tuition fee is not the only option to implement the recommendations of the 7th Central Pay Commission, if the Managing Committee after exploring and exhausting all possibilities feels it necessary to increase the tuition fee, the managing committee shall hold a meeting with the group of teachers and parents which would include at least one parent representative from each section of the school and will present the detailed budget of the school, financial statements of the previous year, requirements of funds for implementation of the 7th Central Pay Commission's Recommendations, availability of cash/reserve fund/savings with the School Fund account etc., as well as present the proposal for fee hike, if any, with justification and all documents mentioned in Annexure A. Inputs would be solicited from the parents and teachers' representatives. Either the managing committee can take their suggestions into consideration and revise their proposal, or record their dissent. The Director of Education's nominee shall remain present in the meeting. The minutes and attendance sheet of this meeting countersigned by the Director of Education's nominee, including details of parents invited for meeting along with photographs of the meetings, shall be submitted by the school to the District Directorate of Education concerned. It is clarified that presentation of the proposal for increase in fee before the representatives of the parents comprising each section shall not be construed as seeking the approval of the parents' representatives in view of the judgment dated 12 August 2011 of the Delhi High Court in WPC7777/2009 titled Delhi Abhibhavak Mahasangh Vs. GNCTD., For the purpose of increase in tuition fee effective 01/01/2016 as a mid‑session increase, the approval of the undersigned is not required under subsection (3) of section 17 of the Delhi School Education Act, 1973 in light of the order dated 30 March 2017 of the Delhi High Court in WPC2637/17 in the matter of Action Committee Unaided Recognized Schools Vs Directorate of Education. The relevant part of the Delhi High Court order is as follows: \Keeping in view the importance and relevance of 31 March 2017 in section 17(3) of the Act, if the Seventh Pay Commission is directed to be implemented in private unaided schools by the respondent, then petitioner schools would have an option within two weeks from the date of implementation of the Seventh Pay Commission to intimate the revised fee schedule and the same shall be taken as having been filed on 3 March 2017.\, The petitioners submit that, admittedly, the respondent schools are governed by the Delhi School Education Act and Section 10 of the said Act applies with full force. Paucity of funds cannot be a ground for permitting the schools not to pay the salary as well as the emoluments to its employees. The petitioners rely upon the judgments of a Coordinate Bench of the Delhi High Court in Kuttamparampath Sudha Nair (Supra) and Shikha Sharma v. Guru Harkrishan Public School, 2021 SCC OnLine Del 5011., The petitioners further argue that the respondent schools have failed to comply with the provisions of Section 10 of the Delhi School Education Act despite being legally bound to implement the recommendations of the 7th Central Pay Commission, at par with the counterparts serving in other schools run by the appropriate authority. The impugned action of the respondent schools in not paying the petitioners' pay, allowances, leave encashment, gratuity and other benefits in terms of the said pay commission in the proper pay‑scale pertaining to their posts, at par with the counterpart employees of the appropriate authority, is illegal, unjustified, and unconstitutional; it violates Articles 14 and 21 of the Constitution of India and Section 10 of the Delhi School Education Act, 1973., It has been submitted during the arguments that the petitioners have been deprived of their salary which they are duly entitled to receive from the respective dates of their initial appointments. Consequently, the petitioners are also entitled to receive appropriate interest upon the arrears due from the school., The petitioners also submit that the arrears pertaining to salaries, retirement/terminal benefits and other arrears are being denied on the premise that the respondent schools are under financial constraints and do not have sufficient funds to pay the arrears as per the revised pay scale. The petitioners, while opposing this contention, have submitted that the same is legally unsubstantial. Reliance has been placed upon the judgments in Shikha Sharma (Supra) and Kuttamparampath Sudha Nair (Supra)., With regard to minority unaided schools, the petitioners submit that the respondent schools have been refusing to refix and pay the salary and allowance in terms of the 7th Central Pay Commission on two grounds: firstly, the respondent school claims a financial crunch and is unable to make the payment; secondly, the respondent school claims to be an unaided minority institute and therefore not bound to pay the salaries or other dues in terms of the 7th Central Pay Commission as they do not come under the ambit of Section 10 of the Delhi School Education Act., The petitioners submit that the Supreme Court of India as well as the Delhi High Court in varied cases have already dealt with these issues and it would be safe to assert that both the above issues—paucity of funds and the school being an unaided minority institute—are no longer res integra. A Coordinate Bench of the Delhi High Court in the judgment of Omita Mago v. Ahlcon Public School, 2022 SCC OnLine Del 5020, upheld by the Division Bench in Ahlcon Public School v. Omita Mago, 2023 SCC OnLine Del 368, squarely covers both issues and has held that paucity of funds or financial crunch of the school cannot be a ground for non‑payment of the benefits of the 7th Central Pay Commission to the petitioner. The Court also upheld that the pay and allowances of the employees of unaided minority schools cannot be less than those of the employees of government‑run schools and therefore, the employees of unaided private schools, including unaided minority schools, are entitled to the benefits given to the employees of government‑run schools., The petitioners further contend that the arguments regarding delay and laches in raising their claims cannot be sustained. Reliance has been placed upon the judgment of a Coordinate Bench of the Delhi High Court in W.P. (C) No. 6841/2022 titled Mukesh Kumar Verma Vs. Lions Public School & Ors. The Coordinate Bench, while relying upon the judgment of the Supreme Court of India in Keraleeya Samajan (Supra), held that limiting the claim of arrears to three years prior to filing the writ petition is untenable., The respondents, while vehemently opposing the claims of the petitioners, submit that the claims are barred by delay and laches. They contend that the revised pay scale came into force in 2016, and since the writ petitions in the present batch were filed beyond three years, the claims are barred by the law of limitation. Further, some petitioners are claiming payment of arrears such as salaries, retirement/terminal dues, dearness allowance, travel allowance, medical allowance, etc., with respect to the recommendations of the 6th and 7th Central Pay Commissions, and the said claims are being preferred after the expiry of more than five to ten years, which is a far‑fetched claim considering the unreasonable delay in seeking redressal., It has been submitted that the principles of delay and laches would certainly apply to the claims in the instant petitions. The petitioners have been negligent and there has been no substantial reasoning placed on record to explain the delay in filing the instant batch of writ petitions., It has been submitted that the casual approach of the petitioners as well as their lack of action and negligence in pursuing the case is evident on the face of the record. As per settled principles of law, the Delhi High Court can only condone a delay if there is a sufficient cause behind such delay. Reliance has been placed upon the judgment of the Supreme Court of India in Mamata Mohanty (Supra). The Supreme Court held that a petition should not be considered ignoring the delay and laches where the petitioner approaches the Court after learning of the relief granted in a similar case; such a claim cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where a diligent person had approached the Court within a reasonable time., The respondent has also relied upon the judgment of the Supreme Court of India in Chennai Metropolitan Water Supply & Sewerage Board (Supra), wherein it was held that it is the duty of the Delhi High Court to scrutinize whether the delay is to be ignored without any justification., The respondent school, in its rival submissions, has stated that the fee is the only source of revenue for the schools and a compatible fee structure conducive to meeting the remuneration and benefits accrued from service to the staff, with infrastructural facilities, modern learning tools and provisions for future growth is the only requisite., It has been admitted during the arguments that even though the respondent schools are bound by the provisions of Section 10 of the Delhi School Education Act, the finances of the respondent schools do not allow the implementation of the 7th Central Pay Commission and the sole reason is that the Directorate of Education has not taken any decision on the proposal for fee hike., In this context, the attention of the Delhi High Court is drawn to the fee structure of the schools. It is argued that the main source of income is through tuition fee; however, the school is not permitted to increase the tuition fee therefore there is a paucity of funds. Further, the schools admit students under the Economic Weaker Section category who get fee concession; therefore the school is undergoing a financial crisis. It has also been submitted that the Shailja Committee was formed to discuss and look into the aspects of amendments necessary for the proper functioning of the schools and for justified implementation of the Delhi Government policies, and the committee suggested revision of the school fee, but no effective action has been taken to date. Learned counsel further submits that the situation has worsened on account of the Covid‑19 pandemic and at present the schools are not in a position to bear the burden of disbursing the benefits of the 7th Central Pay Commission., Some of the respondent schools have raised the plea that salaries and other arrears are due to some petitioners because it was later found that their initial appointments were either illegal or invalid, or pursuant to disciplinary proceedings various petitioners were terminated. Therefore, such petitioners cannot be paid as per the recommendations of the 7th Central Pay Commission., Learned counsel appearing on behalf of the Directorate of Education supports the petitioners and submits that it is the statutory obligation of the schools to fix the salaries and allowances of the petitioners in consonance with the recommendations of the 6th and 7th Central Pay Commissions., It is further submitted that the Directorate of Education, vide order dated 19 August 2016, in exercise of its powers conferred under Sections 17(3), 24(3), and 18 of the Delhi School Education Act, 1973, read with Rules 50, 177, and 180 of the Delhi School Education Rules, 1973, adopted the Central Civil Services (Revised Pay) Rules, 2016, under which benefits of the 7th Central Pay Commission are paid to government employees. Directions were accordingly issued whereby, vide order/notification dated 25 August 2017, 17 October 2017 and 9 October 2019, the respondent schools were directed to implement the 7th Central Pay Commission failing which necessary action shall be taken as per the provisions of the Delhi School Education Act and Rules against the defaulting schools., During the merits argument, the stand of the Directorate of Education is that the schools are bound to comply with the provisions of Section 10(1) of the Delhi School Education Act and to pay the salaries to its employees at par with those paid to employees of schools run by the government or aided by the government; failure to do so makes the school liable for cancellation of its recognition under Section 4 of the Act and takeover of the management under Section 20 of the Act. It is also stated that financial crisis cannot be a ground to escape the liability arising from the mandate of Section 10(1) of the Act., Reliance on behalf of the Directorate of Education has been placed upon the judgments of Sadhna Payal v. Director of Education, 2010 SCC OnLine Del 80, and Kuttamparampath Sudha (Supra). It has been stated that the Courts have a categorical finding that paucity of funds or financial crunch of an employer cannot be an answer to non‑compliance of a statutory mandate., The Directorate of Education, in view of the aforesaid submissions, has submitted before the Delhi High Court that in light of the judgments in Shikha Sharma (Supra), Frank Anthony Public School Employees Association (Supra), Unichovi vs. State of Kerala, AIR 1962 SC 12, Hydro (Engineers) Private Ltd. vs. Workmen 1969 (1) SCR 156 and Air Freight Ltd. vs. State of Karnataka, 1996 (6) SCC 547, there is a clear mandate to follow Section 10(1) of the Delhi School Education Act by the private unaided schools and the unaided minority schools having approval under the statutory provisions., The Directorate's final submission regarding revision of the fee is that there is a clear mandate and due procedure required to be followed by the respondent schools from time to time, which shall in no way be an impediment in implementation of the mandate of Section 10(1) of the Act and consequently the 6th and 7th Central Pay Commissions and to pay the arrears due., Before adjudication of the petitions on merits, the Delhi High Court deems it fit to state the objective behind the implementation of the Pay Commission., Concept of Pay Commission: The Constitution of India establishes a framework that embodies the principles of social welfare and justice. The preamble enunciates that the nation is a \sovereign, socialist, secular, and democratic republic,\ underscoring its socialist commitment, which encompasses the pursuit of social justice and welfare. Furthermore, the Directive Principles of State Policy, as enshrined in Part IV of the Constitution, set forth guidelines for the legislature to be followed in shaping policies and legislation. These principles emphasize the State's responsibility to promote the welfare of the people, secure a just and equitable distribution of resources, and protect the rights of marginalized and disadvantaged groups. While they are not enforceable by the courts, they provide a moral and ethical imperative for the government to work towards the realization of social welfare objectives. Consequently, the Constitution reflects a legal and constitutional framework that aspires to establish a society founded on the principles of social welfare and economic well‑being for all its citizens., Article 38 of the Constitution outlines a significant Directive Principle of State Policy. It emphasizes that the State should make every effort to ensure the well‑being of its citizens by establishing a social order characterized by justice in its various dimensions: social, economic, and political. The term \justice\ here encompasses fairness and equality, and the Constitution calls for this sense of justice to be embedded in all aspects of the nation's institutions and life. The Constitution includes justice in three aspects i.e., social justice, economic justice and political justice. Social justice refers to equitable treatment and opportunities for all members of society, irrespective of their background or circumstances. Economic justice aims to reduce disparities in wealth and income, ensuring that the benefits of economic progress are shared by all. Political justice emphasizes a fair and inclusive political system where all citizens have a voice and can participate in decision‑making processes of the country., Article 43 of the Constitution outlines the State's commitment to improve the welfare and well‑being of workers, both in agricultural and industrial sectors, and promote economic activities in rural areas, particularly through cottage industries. The State is obligated to work towards ensuring that all workers, regardless of whether they are engaged in agriculture, industry, or other occupations, receive a \living wage,\ i.e., a wage sufficient to cover the basic needs of a worker and their family, ensuring a decent standard of living. Hence, Article 43 entitles the people of the nation to a wage that not only covers basic needs but also includes other needs of the people., The Pay Commission has been constituted with the aim of enforcing the concept of India being a Welfare State and promoting justice amongst various people in all spheres—economically, socially and politically. It is a body under the Department of Expenditure (Ministry of Finance) which assesses and recommends changes to the salary structure of public sector employees. They are constituted for a period of ten years and the first pay commission was constituted in 1946., The aim of the pay commissions has been enunciated by the Supreme Court of India in the judgment of Maharashtra State Financial Corporation Ex‑Employees Association v. State of Maharashtra, 2023 SCC OnLine SC 100, and the relevant paragraphs are as follows: (29) That on whether, and what should be the extent of pay revision, are undoubtedly matters falling within the domain of executive policy making. At the same time, a larger public interest is involved, impelling revision of pay of public officials and employees. Sound public policy considerations appear to have weighed with the Union and state governments, and other public employers, which have carried out pay revision exercises periodically (usually once a decade, for the past 50 years or so). The rationale for such periodic pay revisions is to ensure that the salaries and emoluments that public employees enjoy should keep pace with the increased cost of living and the general inflationary trends, and ensure it does not adversely impact employees. Pay revisions also subserve other objectives, such as enthusing a renewed sense of commitment and loyalty towards public employment. Another important public interest consideration is that such revisions are meant to deter public servants from the lure of gratification; of supplementing their income by accepting money or other inducements for discharging their functions. (30) Article 43 of the Constitution obliges the state to ensure that all workers, industrial or otherwise, are provided with a living wage and assured of a decent standard of living. In this context, the need for providing a mechanism to neutralize price increase, through dearness allowance has been emphasized, in past decisions of this court. In Hindustan Lever Ltd. v. B.N. Dongre, the court explained that if pay packets are frozen, the purchasing power of the wage would shrink, and there would be a fall in real wages, which needs to be neutralized. The court also noted neutralization of wages, through dearness allowance is on a sliding scale with those at the lowest wage bracket getting full neutralization and those in the highest rungs being given the least of such allowance: Workers are therefore concerned with the purchasing power of the pay‑packet they receive for their toil. If the rise in the pay‑packet does not keep pace with the rise in prices of essentials the purchasing power of the pay packet falls reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the pay‑packet remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the cost‑of‑living sliding scale systems the basic wages are automatically adjusted to price changes shown by the cost‑of‑living index. In this way the purchasing power of workers' wages is maintained to the extent possible and necessary. However, leap‑frogging must be avoided. This Court in Clerks & Depot Cashiers of Calcutta Tramways Co. Ltd. v. Calcutta Tramways Co. Ltd. [AIR 1957 SC 78], held that while awarding dearness allowance cent per cent neutralisation of the price of cost of living should be avoided to check inflationary trends. That is why in Hindustan Times Ltd. v. Workmen [AIR 1963 SC 1332] Das Gupta, J. observed that the whole purpose of granting dearness allowance to workmen being to neutralise the portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase when the cost‑of‑living increases and a decrease when it falls. The same principle was reiterated in Bengal Chemical and Pharmaceutical Works Ltd. v. Workmen [AIR 1969 SC 360] and Shri Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd. v. G.S. Barot, Member, Industrial Court, Gujarat [(1979) 4 SCC 622] and it was emphasised that normally full neutralisation is not given except to the lowest class of employees and that too on a sliding scale., Therefore, the state and public employers have an obligation to address—as a measure of public interest—the ill effects of rise in the cost of living, on account of price rise, which results in fall in real wages. This obligation should be discharged on a periodic basis. Yet, there cannot be any straitjacket formula as to when such pay revisions are to be made and to what extent revisions should take place. As a general practice, the Union and state governments have been undertaking such exercises each decade., The concept of pay commission has been further reiterated by the Division Bench of the Delhi High Court in the judgment dated 16 September 2022, passed in Vidya Bharti School v. Directorate of Education & Ors., LPA No. 541/2018, wherein the Division Bench held as follows: \Pay revision in terms of the Pay Commission Recommendations is a matter of public policy, with objective of ensuring that with the passage of time the purchasing power of the government employee is not denuded by inflation and other related factors. It can hardly be anyone's case and will be against public policy that the remuneration of teachers and employees of a school be, for all times, below the standards fixed by the government. The after‑effects of such monetary relinquishment on the employees, their families and their financial planning would be dire. Nobody would ordinarily volunteer for such financial deprivation and yet be expected to discharge their duties as teachers with the same devotion and dedication as before the pay revision. The individual remuneration and relinquishment of rights by each teacher, for all times, is not evidenced.\, The Supreme Court of India has extensively dealt with the aim of implementation of the Pay Commissions in the aforesaid judgment. It was held that the pay commission is established for the purpose of revision of the pay taking into account the inflationary trends and the increase in cost of living over a period of time., The Court delved into the aspect that if the pay package is frozen at a specific amount, then the same will lead to shrinkage of the real wages of the workers. As due to inflation, the cost of living rises, whereas the wages remain same which negatively affects the spending capacity of the workers and as a result lowers their standard of living.
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Moreover, it affects not only the worker but also the well-being of the worker’s family who is dependent on him. The Delhi High Court emphasized the concept of dearness allowances provided to workers, which can neutralise the effect of rising costs of living and guard against any deterioration in the standard of living of the worker. The Delhi High Court held that the State shall ensure that workers are provided with the requisite dearness allowance., The Delhi High Court further held that pay revisions promote loyalty and commitment among the employees of any organisation. As public servants are satisfied with their earnings, they do not seek other employment to supplement their salaries for a decent standard of living. Furthermore, such pay revisions ensure that the State discharges its obligation to provide a decent amount of wages and a decent standard of living, as enshrined in Article 43 of the Constitution., Lastly, the Delhi High Court emphasized the need for the Pay Commissions to revise salaries and other allowances periodically as the Executive deems fit., The Pay Commission incorporates three essential ingredients: inclusiveness, comprehensibility and adequacy. Inclusiveness implies that the broad patterns of pay scales adopted for the civil services will be uniformly applied everywhere, especially in areas where some autonomy has been provided, ensuring uniform implementation across various sectors. Comprehensibility requires that the pay scale provide a structure of total remuneration payable to public sector employees that can be easily understood; allowances and ancillary benefits should not make the pay scale incomprehensible, thereby giving employees prior knowledge of total remuneration and allowances at a given post. Adequacy is examined in two parts: firstly, the employee appointed to a position must have the requisite qualifications for the duties and responsibilities of that position; secondly, a adequate amount of salary must be fixed so that the various needs of the person are fulfilled from his wages., The latest Pay Commission, i.e., the 7th Pay Commission, was set up in 2014 and its recommendations came into effect in 2016., The salient features of the 7th Pay Commission are to examine and review the existing pay structure and to recommend changes in pay, allowances and other facilities that are desirable and feasible for civil employees as well as for the Defence Forces, having due regard to historical and traditional parities., It aims at promoting equality in various spheres among people and ensures that the public interest is taken care of. Furthermore, it balances the interests of various stakeholders, ensuring that apart from the worker, the interests of the organisation and the State are considered. Hence, it ensures that the Government has the requisite funds to provide the workers with the revised pay; otherwise, the revised pay would be a false promise that could not be implemented due to paucity of funds., The Pay Commission has ensured that the pay scale is linked with the need to attract the most suitable talented candidates to government service and to promote efficiency, accountability and responsibility in the work culture., Since the Delhi High Court has deliberated upon the concept of the Pay Commission and its various factors that explain its importance, it is now appropriate to deal with the issues framed hereinabove., The relevant submissions and issues have been addressed above. At this juncture, it is imperative to frame the following issues for adjudication of the instant batch of petitions: (A) Whether paucity of funds can be a ground for non‑implementation of the 6th and 7th Pay Commission by any recognised school? (B) Whether it is mandatory for a private unaided school to implement the recommendations of the 6th and 7th Pay Commission? (C) Whether it is mandatory for a private unaided minority school to implement the recommendations of the 6th and 7th Pay Commission? (D) Whether the writ petitions are barred by delay and laches and the claim can be restricted to three years only?, Now adverting to the adjudication of the issues enumerated above, the first issue is whether paucity of funds can be a ground for non‑implementation of the 6th and 7th Pay Commission by any recognised school. During the arguments, the respondent schools duly accepted that the petitioners are entitled to salary and emoluments as per the recommendations of the Pay Commission, but the schools do not have the requisite funds to pay the petitioners accordingly., The schools also pointed out that a proposal for enhancement of fees was sent to the Directorate of Education, but the proposal was denied., The respondent schools raised before the Delhi High Court that, according to Sections 17 and 18 of the Delhi School Education Act, read with Rule 177 of the Delhi School Education Rules, until the schools are permitted to hike their fees, the issue of payment of revised salary to the petitioners does not arise., They argued that there is a direct nexus between the fee hike not being permitted by the Directorate of Education and the school not being in a position to revise the pay of petitioners as per the Pay Commission recommendations., Before delving into the merits, the Delhi High Court reiterated the settled position of law regarding whether paucity of funds can be a ground for non‑implementation of the 6th and 7th Pay Commission., In the judgment of the Honorable Supreme Court of India in Haryana State Minor Irrigation Tubewells Corporation v. G.S. Uppal, (2008) 7 SCC 375, the Court dealt with a corporation running at a loss and unable to bear the financial burden of pay scale revisions. The Supreme Court rejected the contention of paucity of funds and held that employees have a vested right to pay revision. The Court observed that there is no basis for denying pay revision to respondents even if the corporation faces losses, and that measures of economy may be taken instead. The Court further noted that the pay scales of the corporation’s employees were treated on par with those of Government employees on revisions dated 1‑4‑1979 and 1‑1‑1986, and that financial loss cannot be invoked as a ground for differential treatment of a limited category of employees. The Division Bench upheld the judgment of the learned Single Judge, finding no illegality, infirmity or error of jurisdiction., The Honorable Supreme Court emphasized that even if a corporation is running into losses, its employees cannot be denied the pay revision sanctioned to them, and there should be no discrimination between corporation employees and Government employees., The Court further held that an employee appointed to a sanctioned post, whether in a government organization or a public corporation, is entitled to receive the salary and allowances for that post and nothing less., The principle that employees are entitled to pay scale revision as per the prescribed Pay Commission recommendations, irrespective of any increase in school fees, was dealt with by the Division Bench of the Delhi High Court in Rukmani Devi Jaipuria Public School v. Sadhna Payal, 2012 SCC OnLine Del 6535. The Court observed that the appellant school had already implemented the recommendations of the 5th Pay Commission and given revised pay scales to teachers effective 1‑4‑1997, and that the right of teachers to revision from the effective date 1‑1‑1996 could not be denied merely because the school could not shift the burden to students by enhancing fees. The Court noted that for the period 1‑1‑1996 to 31‑3‑1997, fifty percent of the arrears had been paid and would be adjusted from the arrears to be worked out., A Coordinate Bench of the Delhi High Court in Deepika Jain v. Rukmini Devi Public School, 2013 SCC OnLine Del 3801, held that paucity of funds cannot be a ground for not paying salary and emoluments as per the Pay Commission recommendation. The Court also addressed the nexus between fee hikes and paucity of funds, stating that fee hikes are not mandatory and schools must meet salary obligations from existing funds and reserves. The Court cited earlier decisions, including Meenu Thakur v. Somer Ville School (W.P. (C) 8748/2010, decided 13‑2‑2013) and Rukmani Devi Jaipuria Public School v. Sadhna Payal (LPA 286/2010, decided 11‑5‑2012), which held that paucity of funds is not a ground to withhold payments under the 6th Pay Commission Report and the Director of Education order dated 11‑2‑2009., The Delhi High Court observed that school employees are entitled to pay and emoluments as per the Pay Commission recommendations and directed the school to make arrangements from its existing reserves for the same., In view of the precedents, financial wherewithal cannot be taken into account to exempt a school from implementing the Pay Commission recommendations; the school’s employees have a vested right to be paid salary and emoluments as per those recommendations., In the instant petition, the respondent Directorate of Education issued a notification dated 17 October 2017 directing all private recognised schools to implement the Pay Commission recommendations. Accordingly, the recommendations are binding on the schools, irrespective of whether they are run by the appropriate authority or a private body, and must be implemented retrospectively from the date of the recommendations., As discussed, the schools do not have the capacity to pay their staff as per the Pay Commission recommendations because they have been unable to hike student fees, and therefore lack the requisite finances., The issue of whether denial of permission to hike school fees can be a ground for non‑implementation of the Pay Commission was dealt with by the Division Bench of the Delhi High Court in Greenfields Public School v. Anchla, 2023 SCC OnLine Del 5177. The Court noted that statutory provisions require a school to file a full statement of fees with the Directorate of Education and that fees cannot be increased without the Director’s approval, but this does not benefit the appellant school. The Court referred to the applicability of Section 10(3) as discussed in Ahlcon Public School, where the Division Bench directed the employer school to pay salaries as per the 7th Pay Commission. The Court also considered the Supreme Court judgment in Godawat Pan Masala Products I.P. Ltd. v. Union of India, (2004) 7 SCC 68, and held that Sections 10 and 17 of the Delhi School Education Act, 1973 must be read harmoniously, and there is no direct linkage between salary payment and fee revision. Consequently, the school cannot escape its liability to pay the higher pay scale to the respondents., The Division Bench of the Delhi High Court observed that there is no direct nexus between salary payment in accordance with Pay Commission recommendations and the right to revise school fees. The Court held that schools cannot evade their liability to implement Pay Commission recommendations by citing the need to hike fees. Accordingly, schools are duty‑bound to implement the recommendations, and the school staff have a vested legal right to be paid accordingly., Now adverting to the adjudication of the issue in the batch matter., The Delhi High Court is of the opinion that even if a school is running into losses or lacks financial capacity, this does not preclude its liability to pay employees their salary and other benefits in accordance with the Pay Commission recommendations., Moreover, if schools are granted a waiver from implementing the Pay Commission recommendations, employee salaries could be determined at the whim of the school, potentially forcing staff to work for less than the pay stipulated by Section 10 of the Delhi School Education Act, which mandates that salaries and allowances of employees of recognised schools shall not be less than those of employees of corresponding status in schools run by the appropriate authority., It is pertinent to note that any employee has a reasonable expectation of being paid a decent salary to afford a decent standard of living. Inadequate pay may demotivate the employee, affect performance, and lead the employee to seek other employment to supplement income., Such events are undesirable, as they may affect the quality of education provided to the nation's children, who are the future of the nation, and there should be no compromise in educating the future generation., The State has a duty not only to consider the welfare or financial condition of the organization but also to ensure the welfare of its employees, preventing exploitation by coercing them to work at an inadequate pay scale in view of inflationary trends and the prevailing standard of living., In the instant batch of petitions, the Delhi High Court specifically observes that paying school staff less is contrary to the objectives of the Pay Commission, which ensures that school employees receive a decent salary and can afford a decent standard of living., According to the Constitution of India, as a welfare state, the State shall ensure the well‑being of its subjects. Moreover, Article 43 requires the State to ensure that its employees are paid enough to afford a good standard of living; paying an inadequate salary violates this provision., Furthermore, schools must comply with Section 10 of the Delhi School Education Act and ensure that their employees are paid at par with those in aided schools, irrespective of the schools’ financial constraints., In view of the foregoing discussions, paucity of funds cannot be a ground for denial of arrears of salary and emoluments as per the 7th Pay Commission. The Delhi High Court holds that schools have no alternative but to pay their staff the arrears fixed by the 7th Pay Commission, and no school can seek a waiver of implementation by citing any reason., Accordingly, Issue A is decided in favor of the petitioners, directing schools to ensure payment to staff as per the Pay Commission recommendations, arranging finances from reserves or other sources, and ensuring staff are not paid inadequately., The second issue is whether it is mandatory for a private unaided school to implement the recommendations of the 6th and 7th Pay Commission. The learned counsel for the respondent unaided recognised school contended that private unaided schools are not bound by the Pay Commission recommendations and need not pay the same salary to their staff as is payable to employees of aided schools., It was further contended that unaided schools are not bound by Section 10 of the Delhi School Education Act and have autonomy to fix salary and emoluments in accordance with the funds available to the school., Before addressing the merits, it is necessary to discuss whether employees of private unaided schools are entitled to the same salary and emoluments as employees of schools owned by the appropriate authority. Section 10 of the Delhi School Education Act governs salaries and allowances of every school recognised by the Directorate of Education. Section 10(1) provides that the scales of pay, allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of employees of a recognised private school shall not be less than those of employees of corresponding status in schools run by the appropriate authority. If they are less, the appropriate authority shall direct the managing committee in writing to bring them up to the level of the corresponding status, and failure to comply shall be deemed non‑compliance with conditions for continued recognition. Section 10(2) requires the managing committee of every aided school to deposit each month its share towards pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator, who shall disburse the salaries and allowances within the first week of each month., Section 10 of the Delhi School Education Act vests powers with the appropriate authority to direct school management to disburse pay and other benefits at par with schools under its management. The Act defines 'appropriate authority' under Section 2(e) as: (i) an authority designated or sponsored by the Central Government for schools recognised by such authority; (ii) the Administrator or any officer authorised by him for schools recognised by the Delhi Administration; (iii) the Municipal Corporation of Delhi for schools recognised by it; and (iv) the Administrator or any authorised officer for any other school., As per Section 10 of the Delhi School Education Act, the legislature aimed to ensure that the pay, allowances and other prescribed benefits of employees of any recognised school are not less than those of employees of the same status in schools owned or operated by the appropriate authority., The legislature intended that students in schools not owned or operated by the appropriate authority should not be deprived of quality education due to inadequate payment to school employees., The section aimed at providing requisite human‑resource infrastructure to students of unaided recognised schools, ensuring that competent staff receive the same salary and emoluments as in aided schools, preventing demotivation to join private schools due to lower pay., Thus, it aims to ensure uniformity in the competency of staff appointed at any school., The applicability of Section 10 of the Delhi School Education Act to unaided schools was discussed by the Coordinate Bench of the Delhi High Court in Smt. Mamta Chaturvedi v. The Management of New Greenfield Public School and Anr, 2013 SCC OnLine Del 3270. The Court held that even if a school claims an employee is contractual, the Supreme Court in Management Committee of Montfort Senior Secondary School v. Shri Vijay Kumar, (2005) 7 SCC 472, held that a teacher’s services have a statutory flavor under the Delhi School Education Act and Rules, 1973, and termination must follow Rules 118‑120. Therefore, the contractual argument does not preclude entitlement to permanent employment benefits under the Act, and Section 10(1) entitles the employee to the prescribed benefits.
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The principle reiterated by Delhi High Court in the judgment of Nutan Gulati v. Director of Education and Others, 2013 SCC OnLine Del 2507, and the following was held: In my opinion, the argument urged on behalf of the petitioner merits acceptance and I do not agree with the argument urged on behalf of respondent No. 2 – school for the reason that so far as the applicability of Section 10(1) is concerned, the same quite clearly and categorically as per its literal interpretation gives whatever benefits are available to employees of Government schools would also be available to teachers/employees of unaided private schools in Delhi. Section 10(1) does not restrict benefits only to salary/monetary benefits as the expression used in Section 10(1) is \other prescribed benefits\. Respondent No. 2 is an unaided private school in Delhi and therefore, it is bound by the provision of Section 10(1) to give benefits to its teachers which are those as granted to teachers of the Government schools. Since in Government schools as per circular of Director of Education dated 21 January 2011 librarians are to have all benefits applicable to teachers in teaching category, the petitioner who is a librarian will also get all benefits as those granted to a teacher in an unaided private school. The argument of respondent No. 2 on the basis of the expression \Administrator\ as found in Section 2(e)(ii) of the Delhi School Education Act and Rules, 1973 is misconceived because the expression \Administrator\ is used in this provision with respect to the authority which runs/owns the school and not with respect to issuance of circulars for being applicable to schools, which is the prerogative of the Director of Education/authority which governs the school under the provisions of the Delhi School Education Act and Rules, 1973., On perusal of the aforesaid paragraphs, it is clear that Delhi High Court by way of aforesaid judgments has time and again reiterated the scope of Section 10 of the Delhi School Education Act and held that the employees of the unaided recognized schools are entitled to the same salary and emoluments as that of the schools operated by the appropriate authority i.e., schools receiving grants/aided by Central Government, Delhi Government or Municipal Corporation of Delhi., The Division Bench of Delhi High Court recently enunciated the scope of Section 10 of the Delhi School Education Act in the judgment of D.A.V. College Managing Committee, Through Its General Secretary v. Seema Anil Kapoor and Another, 2023 SCC OnLine Del 2314, and held as under: It is manifest from a reading of the aforesaid provision that the obligation to release pay and allowances on terms and at par with those paid to teachers and staff employed in schools run by the Central Government, State Government or a Municipal Corporation is essentially placed upon the employer. Recommendations of a Central Pay Commission once accepted are liable to be factored in by the employer itself. Those benefits are not dependent upon an assertion of a right by the employee but are those which must automatically be implemented once those recommendations come to be accepted by the competent authority. Viewed in that light, it is evident that benefits flowing from a Central Pay Commission report are not dependent upon a claim being raised but are those which must necessarily be implemented and released by an employer of its own volition. This feature distinguishes claims flowing from the recommendations made by a Central Pay Commission from individual assertions that may be raised by an employee with respect to salary or other allowances., Section 10 of the Delhi School Education Act aims to grant similar service conditions to the staff of unaided schools to ensure that there is no compromise in the quality of education being delivered to the students of the school. Moreover, the legislature aims that there should be no discrimination of salary and other emoluments which are given to an employee of a Government‑aided school and any other recognized school. It aims at ensuring that there is no exploitation of the employees working in unaided schools. Section 10 of the Delhi School Education Act confers the employees of unaided schools a legal vested right to be entitled to salary not less than the salary paid to the employee of the aided school at the same position., Now adverting to the facts of the instant petition, the respondent schools which are unaided recognized private schools are included within the ambit of Section 10 of the Delhi School Education Act. The grounds pleaded by the unaided recognized schools that they are not governed by Section 10 of the Delhi School Education Act with the recommendations of the 7th Central Pay Commission does not hold any water. Delhi High Court observes that any unaided recognized school shall be governed by Section 10 of the Delhi School Education Act regarding the salaries and emoluments of the staff of the said school and the same shall be equivalent to a person at the same position in an aided school. Accordingly, Issue B is decided., Whether it is mandatory for the unaided minority school to implement the recommendations of the 6th and 7th Central Pay Commission? The unaided minority schools have been defined in Section 2(x) of the Delhi School Education Act as follows: \unaided minority school means a recognized minority school which does not receive any aid.\ The case of the respondent unaided minority schools is that the said schools are not governed by Section 10 of the Delhi School Education Act. Moreover, they claim a fundamental right which gives them autonomy to function and manage their own affairs. Therefore, an objection was raised that the school has an authority to determine the salaries and emoluments payable to its staff and the same falls within the ambit of the administration of the minority unaided educational institute., To buttress their contention, the respondents have referred to the following articles from the Constitution of India: Article 26 – Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. Article 30 – Right of minorities to establish and administer educational institutions (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abridge the right guaranteed under that clause. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language., It is contended by the respondent minority unaided school that under Articles 26 and 30 of the Constitution of India they have the right to establish and administer their own school for the purpose of preservation of their language, religion, script or culture. Moreover, the Constitution guarantees minority protection to ensure preservation, and that it strengthens the integrity and unity of the nation., Furthermore, the respondent school has referred to the following provision of the Delhi School Education Act, 1973: Section 3 – Power of Administrator to regulate education in schools. (1) The Administrator may regulate education in all the schools in Delhi in accordance with the provisions of this Act and the rules made thereunder. (2) The Administrator may establish and maintain any school in Delhi or may permit any person or local authority to establish and maintain any school in Delhi, subject to compliance with the provisions of this Act and the rules made thereunder. (3) On and from the commencement of this Act and subject to the provisions of clause (1) of Article 30 of the Constitution, the establishment of a new school or the opening of a higher class or the closing down of an existing class in any existing school in Delhi shall be subject to the provisions of this Act and the rules made thereunder and any school or higher class established or opened otherwise than in accordance with the provisions of this Act shall not be recognised by the appropriate authority., The respondent has further contended that as per Section 3 of the Delhi School Education Act, the respondent has been given the right to establish and maintain the school as well as regulate the education in that school. Moreover, the aforesaid section is subject to Article 30 of the Constitution of India for the purpose of the administration of the school. Hence, the minority respondent school has autonomy in the administration of its school. Section 10 of the Delhi School Education Act is not applicable to the unaided minority school, since these schools have the right to administer the salary and the emoluments payable to the staff of the school., Before adjudicating upon the question of law, Delhi High Court will first discuss the law laid down by the Hon'ble Supreme Court of India and this Court pertaining to whether unaided minority schools are bound to implement Section 10 of the Delhi School Education Act as well as recommendations of the Pay Commission. In the judgment of Frank Anthony Public School Employees' Association (Supra), the Hon'ble Supreme Court held that Section 10 of the Delhi School Education Act is applicable to the unaided minority schools. The relevant paragraphs of the judgment are reproduced as under: “Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of minorities to administer their educational institutions. Section 8(2), however, must, in view of the authorities, be held to interfere with such right and, therefore, is inapplicable to minority institutions. Section 9 is again innocuous since Section 14 which applies to unaided minority schools is virtually on the same lines as Section 9. … Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions… We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers to enforce the provisions of Chapter IV [except Section 8(2)] in the manner provided in the chapter in the case of the Frank Anthony Public School.” The Supreme Court also noted that the instruction of the Council for the Indian School Certificate Examination that “the staff must be paid salaries and allowances not lower than those paid in comparable Government schools in the State in which the school is located” was not a condition imposed by the Council pursuant to Section 19 of the Delhi School Education Act and that there was no way for staff to enforce the instruction., The Hon'ble Supreme Court held that Section 12 of the Delhi School Education Act is discriminatory and as such void. Hence, Sections 8 to 11 of the Act (except Section 8(2)) are applicable to minority schools. Section 10 of the Act, therefore, is applicable to unaided minority schools and the said schools have to pay their staff in accordance with the recommendations of the Pay Commissions., The Hon'ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, held that the right to administer an educational institution has to be regulated and these schools can be bound by certain regulatory measures as prescribed by the governing body to ensure the maintenance of administrative policies. The relevant paragraphs of the judgment are reproduced herein below: “The right to establish and administer broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non‑teaching); and (e) to take action if there is dereliction of duty on the part of any employee.” … “With regard to the core components of the rights under Articles 19 and 26(a), it must be held that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance with conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. … The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. … The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution.”, It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner required by the rules or instructions. There have been cases of misconduct by teachers and other staff. The grievance of the institution is that whenever disciplinary action is sought, the rules framed by the Government or the university are loaded against the management. In some cases, prior permission of governmental authorities is required before initiation of disciplinary proceedings, while in other cases subsequent permission is required before imposition of penalties. It was emphasized that an independent authority should adjudicate grievances of employees or management without role of the Government or university in imposing any penalty., In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers but how the private unaided institutions are to run is a matter of administration to be taken care of by the management of those institutions. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30., Delhi High Court has time and again reiterated that Section 10 of the Delhi School Education Act is applicable to the unaided recognized schools too. The courts aim at ensuring that there should be a balance between the autonomy given to the schools for the purpose of the establishment of the educational institution and, on the other hand, regulation by the authority to ensure that there is adequate quality of education maintained in the school by making the unaided minority schools bound by certain regulations., Delhi High Court in the case of Guru Harkishan Public School v. Director of Education, (2015) 221 DLT 448, passed a judgment on similar lines to the judgment of the Hon'ble Supreme Court in Frank Anthony Public School Employees' Association (Supra) and held as follows: The court further held that mere prescription of scales of pay and other conditions of service would not jeopardise the right of the management of minority institutions to appoint teachers of their choice. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead to discontent and deterioration of the standard of instruction, adversely affecting the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of a minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education. Section 8(1), 8(3), 8(4) and 8(5) were held not to encroach upon any right of the minorities to administer their educational institutions. However, Section 8(2) was held to be not applicable to minority institutions. Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. The Parliament did not understand Sections 8 to 11 as offending the fundamental right guaranteed to the minorities under Article 30(1) as evident from the fact that Chapter IV applies to aided minority institutions and it cannot be suggested that surrender of the right under Article 30(1) is the price which aided minority institutions have to pay to obtain aid from the Government., It is also imperative to refer to the judgment passed by the Coordinate Bench of Delhi High Court in the matter of Shikha Sharma (Supra), wherein this Court has dealt and summarized the position of implementation of recommendations of the Pay Commission by the unaided minority school. The relevant paragraphs are as follows: The said Section contemplates that the pay and allowances of the employees of the recognised private schools could not be less than that of the employees of the Government‑run schools. So, it is clear that the pay and allowances of the employees of unaided minority schools cannot be less than those of the employees of the Government‑run schools. There is no dispute that the benefits of the 6th and 7th Central Pay Commission have been given to the employees of the Government‑run schools. If that be so, the employees of the unaided minority schools are also entitled to get the benefits of the recommendations as made by the 6th and 7th Central Pay Commission reports. The plea that until the Director of Education grants approval to the schools to collect the arrears of fees the schools must not be directed to pay the benefits of the 7th Central Pay Commission is unmerited. The employees are entitled to equal pay and other benefits by operation of Section 10 of the Delhi School Education Act; in other words, by operation of law, the said benefits are payable. The same does not presuppose approval being granted by the Director to the schools to claim higher fee or arrears thereof., The Coordinate Bench of Delhi High Court while summarizing the issue pertaining to application of Section 10 of the Delhi School Education Act held that the unaided minority schools are bound by Section 10 and shall ensure that the salary as well as the emoluments paid to the staff of the unaided private school shall be at par to the salary and emoluments paid to the staff of an aided school at the same position., Delhi High Court has further passed judgment on similar lines in the matter of Kuttamparampath Sudha Nair (Supra), wherein it was held as follows: The issue again came up before the Supreme Court in Raj Soni v. Air Officer In‑charge (Administration), (1990) 3 SCC 261 where the Supreme Court reiterated and reaffirmed the inflexible nature of the liability that was binding on a recognised school under the provisions of the Delhi School Education Act and Rules, and it is significant to note that the Supreme Court categorically held that recognised private schools in Delhi, whether aided or otherwise, are governed by the provisions of the Act. The respondent‑management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school. When an authority is required to act in a particular manner under a statute it has no option but to follow the statute. The authority cannot defy the statute on the pretext that it is neither a State nor an authority under Article 12 of the Constitution of India. In P.M. Lalitha Lekha v. Lieutenant Governor, W.P. (C) No. 5435/2008 decided on 02 February 2011, although the question involved was counting of service of the petitioner for computing her pension and in that context was different on facts, the point of law was the same as the one arising in the present petition.
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Bench of the Delhi High Court examined the provisions of Section 10(1) of the Delhi School Education Act and Rules and observed that the first proviso to Section 10(1) clearly obliges the Director of Education to direct the management of all recognized private schools to bring all benefits, including, inter alia, pensionary benefits, to the same level as those of employees of corresponding status in schools run by the Director of Education. The second proviso enables the Director of Education to withdraw the recognition of the school under Section 4 of the Delhi School Education Act and Rules if the management fails to comply with the directions, serving a salutary purpose and empowering the Director of Education to issue directions aimed at fulfilling the object of Section 10(1). It was also held that the mandate of Section 10(1) is unambiguous, regardless of whether the school receives grant-in-aid. It must be kept in mind that the Delhi School Education Act contemplates unaided private schools, which are also granted recognition, and therefore the mandate of Section 10(1) applies to them with full rigour., The first proviso to Section 10 of the Delhi School Education Act, 1973 clearly obliges the Director of Education to direct the management of all recognized private schools to rectify any deficiency and to bring all benefits, including, inter alia, pensionary benefits, up to the same level as those of employees of corresponding status in schools run by the Director of Education. The second proviso further provides that if the management of the school fails to comply with such directions, recognition of the school can be withdrawn under the powers given in Section 4 of the Delhi School Education Act, 1973. This serves a salutary purpose and further empowers the Director of Education to issue appropriate directions aimed at fulfilling the object of Section 10(1) of the Act., The school has been given certain privileges, including recognition, on condition, inter alia, that it complies with Section 10(1). Due to the non‑compliance of the conditions by the respondent school the petitioner cannot be made to suffer. If the respondent school does not come forward to honor its employees' entitlement in this behalf, then steps need to be taken by the appropriate authority to ensure compliance., The payment of pension for the period before the grant-in-aid came into the picture has to be rendered by the school, but post such grant, the liability shifts to the respondent. This is because the mandate of Section 10(1) is unambiguous, regardless of whether it receives grant-in-aid or not. So long as it is a recognized private school, pension and other benefits of its employees must be the same as those admissible to employees of the Authority's schools. Under the first proviso, it is the respondent's duty to ensure that such payment is made. Under the second proviso the respondent can take action if those directions are not followed. The respondents in no circumstance can be absolved from their duty., In this context, it must be kept in mind that the Delhi School Education Act contemplates unaided private schools also. Even such schools are granted recognition. The mandate of Section 10(1) applies with full rigour to them also., Recently, a Division Bench of the Delhi High Court in Dhanwant Kaur Butalia v. Guru Nank Public School (LPA 499/2013) decided on 14.01.2016 reiterated and reinforced that Section 10(1) with its consequential resultant mandate that scales of pay, allowances, medical facilities, gratuity, etc., paid to the Government schools should be paid to employees of corresponding status in private recognized schools, would apply to all unaided schools. Section 10(1) is a statutory purity and also a minimum standard which all recognized schools have to adhere to., In the appeal before the Division Bench, the Appellant was aggrieved by an order of the learned Single Judge whereby her claim for increase of salary, consequent to implementation of Sixth Pay Commission recommendation, was rejected. The Appellant invoked provisions of Section 10(1) of the Delhi School Education Act and Rules and also relied on earlier judgments of the Delhi High Court wherein it was consistently ruled that unaided schools have an obligation to ensure that emoluments of teachers and other employees are at par with those in the schools established and maintained by the appropriate Government. Judgments of the Delhi High Court in Gurvinder Singh Saini v. Guru Harkishan Public School (W.P. (C) 12372/2009) decided on 02.09.2011, Deepika Jain v. Rukmini Devi Public School (W.P.(C) 237/2013) decided on 23.09.2013 and the judgment of the Division Bench in Guru Harkishan Public School v. Gurvinder Singh Saini (LPA 58/2012) decided on 05.09.2012, were cited by the Appellant and taken note of by the Division Bench., As the issue before the Division Bench concerned benefits under the Sixth Pay Commission, reliance was placed on the Central Civil Service (Revised Pay) Rules, 2008 and Office Memorandum dated 30.08.2008 referring to the said Rules. Based on this, a Circular was issued by the Competent Authority under the Department of Education on 15.10.2008, directing the managements of all private recognized (aided as well as unaided) schools to implement Sixth Pay Commission recommendations. After a conjoint reading of the circulars and the Pay Rules, the Division Bench held as follows:, The Delhi High Court also notices that the pre‑existing Section 12 which had excluded the application of Section 10 and other provisions of the Chapter to unaided minority schools was set aside by the Supreme Court in Frank Anthony School Employees Association v. Union of India (1986) 4 SCC 707 : AIR 1987 SC 311. The Supreme Court expressly considered the impact of Section 10 and whether it had the effect of eroding the minority character of schools entitled to protection under Article 30 and concluded that it did not. The said judgment has been constantly followed and it was not overruled but was approved in TMA Pai Foundation's case. Section 10 with its consequential resultant mandate is that scales of pay, allowances, medical facilities, gratuity, provident fund and other prescribed benefits which employees of corresponding status in schools of the appropriate government are to be granted to employees of all unaided schools., This ipso facto ought to clinch the case in favour of the present appellant. Section 10 is a statutory purity and also a minimum standard which all recognized schools have to adhere to., The Office Memorandum of 30.08.2008 also referred to the Central Civil Service (Revised Pay) Rules, 2008. The effect of all these office memoranda (dated 11.09.2008, 22.09.2008 and 15.10.2008) is that the managements of all private recognized schools, aided as well as unaided, had to implement the Sixth Pay Commission Recommendations, in the manner stipulated by Section 10 of the Delhi School Education Act. Circular dated 15.10.2008 was categorical in this regard. It reads as under: Section 10(1) of the Delhi School Education Act 1973 provides that: The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in a school run by the appropriate authority. Therefore, the Management of all private recognized (aided as well as unaided) schools are directed to implement the Sixth Pay Commission recommendations, fixation of pay and payment of arrears in accordance with circular no. 30‑3(17)/Cood/Cir/2008 dated 22.09.2008, by which it has been implemented for employees of Government Schools. This issue is with prior approval of the competent Authority., A co‑joint reading of all circulars would immediately reveal that the Sixth Pay Commission recommendations were accepted and the Central Government formulated the revised pay rules with effect from 01.01.2006. The rules were published in 2008. Nevertheless, the entitlement following from it accrued to all with effect from 01.01.2006. The only exception was that certain types of allowances, i.e., HRA, children’s education allowance, special compensatory allowance etc., were to be paid prospectively with effect from 01.09.2008 (refer para 3 of the Office Memorandum dated 30.08.2008). In all other respects, the pay parity mandated for Government of NCT teachers was to apply to teachers and staff members of unaided schools – minority and non‑minority schools., In the present case, Section 10 remains on the statute book; it was declared to be applicable to all unaided schools including minority schools, from 1986 onwards i.e. with the declaration of the law in Frank Anthony School Employees Association's case. There is no dispute that the Sixth Pay Commission recommendations were to be implemented from the date the Government of NCT implemented them. Accordingly, the respondent school in the present case could not have claimed ignorance of the application of Section 10 and could not state that it was obliged to pay arrears or implement the Sixth Pay Commission recommendations with effect from a later date than that applicable to Government of NCT teachers and teaching staff in its schools., As a consequence and in the light of the previous order of the Delhi High Court in Gurvinder Singh Saini's case and Uma Walia's case, the impugned order and judgment of the learned Single Judge is hereby set aside. The respondent is directed to disburse all the arrears of salary and allowances payable pursuant to Sixth Pay Commission recommendations to the appellant, except those expressly denied by virtue of the Central Government's Office Memorandum dated 30.08.2008, within six weeks from today., Contention of learned counsel for the school that Section 10(1) does not specifically include unaided private schools may seem attractive at first blush, if one superficially looks at the provisions where the words used are \recognized private school\. However, the contention cannot be accepted in view of various judicial pronouncements where the provision of Section 10(1) has been interpreted to include both aided and unaided schools. The Division Bench in Dhanwant Kaur has clearly held that the mandate of Section 10(1) would apply to all unaided schools as the minimum standard that the provision ensures must be adhered to by all recognized schools., In Dev Dutt Sharma v. Managing Society National Public School (W.P. (C) 11563/2009) decided on 02.07.2010, a Coordinate Bench of the Delhi High Court pronounced that the mandate of Section 10(1) is unambiguous, regardless of whether the institution receives grant‑in‑aid or not. Since the Act itself contemplates unaided private schools for recognition, the mandate will apply with full rigour to them. The Supreme Court in Frank Anthony held that the impact of Section 10(1) would not erode the minority character of Minority Institutions, which are entitled to protection under Article 30(1) of the Constitution of India., Additionally, it may be noted that this is also the understanding of the Department of Education which is implicit in the various circulars issued by it from time to time. By order dated 19.08.2016, the Department of Education, in exercise of powers conferred under Sections 17(3), 24(3) and 18 of the Delhi School Education Act, 1973 read with Rules 50, 177 and 180 of the Delhi School Education Rules, 1973, adopted the Central Civil Service (Revised Pay) Rules, 2016, under which benefits of the Seventh Pay Commission are paid to Government employees. Directions were accordingly issued by the Department of Education, vide Circular dated 17.10.2017 to all unaided private recognized schools to extend the benefits of the Seventh Pay Commission to their employees in accordance with Section 10(1) at par with Government employees. By another order dated 09.10.2019, the Department of Education reiterated its directions to the unaided schools to comply with the mandate of Section 10(1), failing which necessary action shall be taken as per provisions of the Delhi School Education Act and Rules against the defaulting schools., The Delhi High Court notes that the Department of Education has consistently taken a stand that private recognized unaided schools are bound to comply with provisions of Section 10(1) and this is discernible from Circular dated 15.10.2008 issued by the Department of Education after the Central Civil Service (Revised Pay) Rules, 2008 were notified, pursuant to the Sixth Pay Commission. The Circular was taken note of by the Division Bench in Dhanwant Kaur and is extracted in the earlier part of the judgment. This obviates any doubt that provisions of Section 10(1) of the Delhi School Education Act and Rules shall apply to the respondent school and that it is under a statutory obligation to pay the revised salaries and emoluments under the Seventh Pay Commission to the petitioners, in accordance with the various Department of Education circulars and orders referred to above., In view of the aforesaid judgments, the law with regard to unaided minority schools is settled and the said schools fall under the ambit of Section 10 of the Delhi School Education Act. Hence, they are liable to follow the recommendations of the pay commissions and accordingly, pay the staff of their school at par with the employees of the government‑aided schools., Education is an invincible weapon for empowering the next generation of the nation and the regulating authority has to exercise certain control to ensure that uniform quality of education is provided to every student of the country. The aspect of autonomy in administration of unaided or aided schools therefore does not come into play since the State has to ensure that quality education is provided to the children. Hence, the unaided minority schools are bound by certain regulations of the appropriate authority., The schools shall ensure that there is an adequate compensation paid to the staff of the school. Since the school teaches future generations of the country, if the teachers are not paid decently they might not be able to perform their best in imparting knowledge to the students., The payment of an adequate salary to the staff of the school acts as a motivating factor for the teachers in giving their best in teaching the children., The Delhi High Court is of the view that the unaided minority schools are bound by Section 10 of the Delhi School Education Act and hence, the staff of the unaided minority school is entitled to salary and emoluments at par with those payable to an employee in a school owned by the competent authority., Therefore, the unaided minority schools are duty‑bound to pay their employees as per the recommendations of the Pay Commissions along with the pending arrears. The employees of the unaided minority schools have a vested right to claim the arrears and dues in accordance with the Pay Commission., Accordingly, issue C is decided., D) Whether the writ petitions are hit by delay and laches and claim can be restricted to three years only? It is the contention of the respondent schools that the dues of the employees of the schools shall be limited to dues of three years prior to filing of the petition. Since there is unexplained delay and laches in filing the petition, the petitioner cannot circumvent the provisions of the Limitation Act and claim arrears of the Sixth and Seventh Pay Commissions., The respondent schools have further pleaded that it is a settled law that even in cases of continuing actions, the benefits of the arrears have to be limited to three years., Before adverting to the adjudication of the petition on facts, the Delhi High Court deems it necessary to state the position of law whether the writ petitions are hit by delay and laches and claim can be restricted to three years only., It is a settled position of law that due to lapse on behalf of schools in non‑payment of the benefits to its employees, the same cannot be used to the advantage of the schools by restricting dues to three years. The schools are obligated to pay arrears of their employees in this regard., The Honorable Supreme Court in the judgment of Keraleeya Samajam & Anr. v. Pratibha Dattatray Kulkarni (Dead) through LRs & Ors., Special Leave Petition (C) No. 21660‑21661 of 2019 dated 28th June 2019, dealt with the issue of limitation of claiming the arrears and held that such contentions are untenable in the eyes of law. The Court held that the entitlement of teachers' salaries as per the Fifth and Sixth Pay Commissions to the teaching and non‑teaching staff of the second petitioner‑school is not required to be gone into; the only issue is whether the arrears ought to have been restricted to three years preceding the filing of the writ petition. The Court further observed that the respondents cannot be made to suffer for the lapse and inaction of the petitioners and that the arrears of salary as per the Sixth Pay Commission recommendation must be paid., The Division Bench of the Delhi High Court while upholding the judgment passed by the Coordinate Bench of the Delhi High Court in the matter of Vidya Bharti School also held that arguments pertaining to delay on the part of the employees in claiming their dues and arrears cannot be accepted and that the concerned employees cannot be made to suffer., At this point, reliance is placed upon the judgment of the Honorable Supreme Court in State of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429, whereby the Court held that pension and gratuity are valuable rights and property in the hands of employees and any culpable delay in settlement and disbursement must attract interest at the current market rate till actual payment., In view of the fore‑tasted precedents, it is settled law that the claims of the employees shall not be restricted to three years from filing of the writ petition. Hence, they may claim benefits as are due to them and the schools are obligated to pay the same., Moreover, the employees of the school should not be at the mercy of the schools for receiving pension and other retiral benefits which are due to them; the benefits should not be hindered merely because they accrue for a period of three years or more before the filing of the petition., Hence, the schools are liable to pay all the dues of their employees, irrespective of whether the dues pertain to three years or are prior to that., It is a settled principle of law that in cases where there is delay and laches attached to an employee, the Courts, under their extraordinary power in writ jurisdiction, may condone such delay., The Honorable Supreme Court in Union of India and Ors. v. Tarsem Singh (2008) 8 SCC 652 summarized the settled principles: normally a belated service‑related claim will be rejected on the ground of delay and laches or limitation, but an exception exists for claims based on a continuing wrong. Where the continuing wrong creates a continuing source of injury, relief can be granted even after a long delay, unless the reopening of the issue would affect the settled rights of third parties. In matters of pay or pension, relief may be granted despite delay as it does not affect third‑party rights., The Honorable Supreme Court has enunciated that in case of claims pertaining to a continuing wrong, even if filed after a long delay, the continuing wrong creates a continuing injury., There is an exception to the said rule: if reopening the claim would affect the rights of a third party that are duly settled, such belated claims may not be entertained., In the instant batch of petitions, the claims of the petitioners relate to non‑implementation of the Pay Commission recommendations. Hence, the petitioners are not being paid salary and emoluments in accordance with the Pay Commission recommendations., This Court is of the view that the claims of the petitioners do not hinder the settled rights of third parties. Moreover, the issue of limitation does not arise since there is a continuing wrong done to the petitioners., Under Article 226, the High Court has to act as a court of equity and ensure that the rights of the various parties before it are not prejudiced. It may condone delay and laches in raising the claims if there is substantial reasoning to the same., The Delhi High Court is of the opinion that delay should not defeat equity, especially in this batch of petitions wherein a grave financial loss would be caused to the petitioners if their claims are not allowed merely on the ground of delay and laches., In light of the foregoing discussions of facts and law, the Delhi High Court is of the considered view that the schools are liable to pay all the dues of their employees, irrespective of the time period to which it pertains., Therefore, the contention of the schools that dues before three years are hit by delay and laches holds no merit and is hereby rejected as unsubstantial., Accordingly, issue D is decided., The Delhi High Court observes that it is a sorry state of affairs that the staff of the school, instead of contributing towards the education of the children, are before this Court seeking payment of their salary and emoluments as per the Pay Commission's recommendations, which they are duly entitled to., Various judgments have been passed by the Delhi High Court pertaining to the implementation of the Pay Commission recommendations; however, they have not been implemented to date due to lack of financial resources with the schools., The main reason for non‑implementation of the Pay Commission is that the schools have not been able to hike the fee. The regulating authority, i.e., the Department of Education, is also not able to ensure implementation of the Pay Commission recommendations because it can only derecognise a school in case of non‑compliance with its order. Derecognition is not always the ideal solution as it would affect the children studying in the school and the employment of the staff. Therefore, directing the Department of Education to ensure implementation of the Pay Commission recommendation by derecognition of the school is not the best solution to the issues., The Delhi High Court has categorically discussed and established that the petitioners' grievances are valid and that non‑compliance of the notification issued by the Department of Education for implementation of the Seventh Pay Commission recommendations violates the petitioners' rights enshrined under the Constitution of India., Accordingly, the Delhi High Court is of the considered view that this is a fit case to exercise its extraordinary writ jurisdiction and to ensure implementation of the Pay Commission recommendations. The Court shall ensure that the arrears of the petitioners are duly paid whilst ensuring that the schools have the requisite funds to pay the same to their staff., The Delhi High Court deems it necessary to authorize and constitute an independent Committee for meticulous inspection of the claims raised by the petitioners and its members, and to decide the same keeping in mind the various factors., In the interest of justice, the Delhi High Court is directing the Government of the National Capital Territory of Delhi to constitute a High‑Powered Committee, unless already constituted, to supervise the implementation of the recommendations and guidelines prescribed in the Sixth and Seventh Pay Commissions with regard to salaries, arrears, retirement/terminal benefits, arrears of allowances, etc., and to draw up a plan of action which may help in achieving results at the ground level., The various stakeholders are also directed to render full cooperation to the aforesaid High‑Powered Committee, bearing in mind that the issues being examined concern all and sundry., Since the facts and circumstances are peculiar to each stakeholder, the Committee, before passing any order, is directed to scrutinise the various aspects and, after due assessment of eligibility, validity of appointment, amount, period of calculation, revision of fee, etc., to pass the orders. The Committee shall undertake an exercise of identification of the issues and claims of the stakeholders individually., The objectives of the Committee are summarised as follows: the Committee must ensure that the staff of the school are not left without their dues. It must ensure that the rightful dues of the staff are paid without any further delay. The Committee must devise a mechanism whereby the staff of the schools are paid their dues irrespective of the fact that the schools do not have the requisite funds.
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The Committee must ensure that the grievances of the superannuated employees of the schools are also being addressed by it. Moreover, the Committee must ensure that the retirement or terminal benefits to which the employees are entitled shall be duly paid to them. The Committee must look into whether the staff of the schools who have been illegally appointed are entitled to the arrears of the Sixth and Seventh Pay Commissions. The Committee shall ensure that there is a mechanism that in future too if any dispute arises pertaining to the implementation of recommendations of the Pay Commission, the same may be addressed by way of the High‑Powered Committee. Hence, the Committee shall ensure that there is a redressal of not merely the present disputes but also of future disputes that may arise., In view of the above, the High‑Powered Committees shall be constituted at two levels, first at the Central level and second at the Zonal level. Details of the said Committees are as follows:, Zonal level – Members: Zonal head of the concerned zone, i.e., the Zonal Education Officer; one representative of the schools; one reputed Chartered Accountant recommended by the Institute of Chartered Accountants of India. This Committee shall deal with the issue of fee hike; salaries and other benefits due in terms of the Seventh Pay Commission; arrears of salaries and other benefits due in terms of the Sixth Pay Commission; arrears of retirement or terminal benefits due in terms of the Sixth Pay Commission. It is directed that the Zonal level Committee shall convene the first meeting within eight weeks and shall, after hearing the parties, decide the claims of the various stakeholders in accordance with the observations made by the Supreme Court of India hereinabove and also in accordance with the law, expeditiously, preferably within eight weeks of receiving the claim. This Committee shall recommend its findings to the Committee constituted at the Central level for final decision., Central level – Members: The Secretary of Education shall be the head of this Committee; the Director of Education, Department of Education; one reputed Chartered Accountant recommended by the Institute of Chartered Accountants of India; one representative from the schools; a reputed academician appointed by the Secretary in consultation with the other members. In the case of any disagreement on the appointment of the concerned academician, the recommendation of the Secretary shall prevail. This Committee, after receiving the recommendations of the Zonal level Committee, shall decide the issue recommended to it, expeditiously, preferably within six weeks from the date of receiving the said recommendation., The Department of Education is directed to issue a notification within two weeks from the date of pronouncement of this judgment, for the purpose of convening the Zonal Committee, wherein various stakeholders including teaching and non‑teaching staff of several schools, who are aggrieved by the non‑implementation of the Pay Commission recommendations, shall file their claim before the concerned Zonal Committee., The Supreme Court of India is of the opinion that by way of the said Committee the grievances of the various stakeholders will be addressed and the recommendations of the Pay Commissions will be implemented in accordance with the law and the observations and directions made by this Court in the foregoing paragraphs., In view of the aforesaid terms, the instant batch of petitions stand disposed of along with pending applications, if any. The judgment shall be uploaded on the website forthwith.
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08.03.2016 17.10.2023 Matrimonial Appeal Numbers 948 of 08.03.2016 17.10.2023 Matrimonial Appeal Numbers 948 of Sophy Thomas, Husband is the appellant in both these appeals. He filed Matrimonial Appeal Number 948 against the decree for restitution of conjugal rights obtained by his wife Number 659 and Matrimonial Appeal Number 949 against the decree Number 444 rejecting his prayer for divorce. The wife is the respondent., The marriage between the appellant and respondent was solemnised on 07.05.2012. Thereafter they were living together as husband and wife at the house of the appellant, and thereafter in Abu Dhabi. The respondent/wife insulted and ill‑treated the appellant in the presence of his relatives. She never respected him and kept distance from him. She even spat on his body though she apologised later. She sent a complaint to the Managing Supervisor of the company where he was working, making defamatory statements against him with a view to terminate his employment. She was not ready to cook food for him. When she was living with his mother at her matrimonial home, she did not attend his mother and even quarreled with her for trivial reasons. Later she left her matrimonial home, taking her belongings, and thereafter filed complaints before the Vanitha Cell as well as before the Chief Judicial Magistrate Court, Thrissur., After harassing him by filing false criminal cases, she filed Number 659 for restitution of conjugal rights, without any bona fides. He apprehended that he may lose his job if he continued with her. He filed Number 444 for dissolving his marriage with the respondent. The respondent/wife filed a counter‑claim denying the allegations levelled against her. She contended that the appellant was having some sexual perversions. He found fault with her shaming her body size as well as her complexion. He compelled her to consume medicines for improving her breast size, and he used to compare her with other ladies. To her understanding, the appellant was having some mental problem and therefore he was taken to doctors at Abu Dhabi and also at his native place. Though the doctors prescribed medicines, he discontinued the same and returned to Gulf countries., While she was staying at her matrimonial home, her mother‑in‑law dropped her at the bus stand, saying that she wanted to go to her brother’s house. Thereafter, the appellant never permitted her to live in the matrimonial home, and from 15.01.2013 onwards she lived separately from the appellant. He was not enquiring about her or providing maintenance to her. She filed Number 659 for decree for restitution of conjugal rights. After about one year of filing that, the husband preferred Number 444 for dissolving their marriage. Both were tried together by the Family Court of Kerala. After formulating necessary issues, the parties went on trial. The appellant was examined and Exhibits A1 were marked from the side of the appellant. The respondent was examined and Exhibits B1 were marked from the side of the respondent., On analysing the facts and evidence, the Family Court of Kerala found that the husband was not eligible to get a decree of divorce, whereas the wife was entitled to get a decree for restitution of conjugal rights, against which the husband has preferred these appeals. Now we are called upon to answer whether there is any illegality, irregularity or impropriety in the impugned judgments warranting interference by the High Court., The appellant/husband filed Number 444 for dissolving his marriage with the respondent, which was solemnised on the ground of matrimonial cruelties. About one year prior to that the wife had filed Number 659 for restitution of conjugal rights. According to the appellant, the wife was so cruel to him, and she filed complaints against him before his employer, Vanitha Cell as well as before the Chief Judicial Magistrate Court. There was no bona fides from her part in filing an application for restitution of conjugal rights., The main ground of cruelty alleged by the appellant is that she sent Exhibit B12 complaint to his employer with a view to terminate his job. The respondent/wife would say that she was intending to continue her matrimonial life with the appellant and only to see whether the employer of the appellant could help her patch up their strained relationship, she sent an e‑mail to him only as a request for intervention. On going through Exhibit B12 e‑mail, it could be seen that she was lamenting about the nature of the appellant, as he left her Kerala and returned to ... She was expressing her anxiety about the behavioural changes seen in the appellant. She was seeking the assistance of his employer to find out what was wrong with him and to bring him back to normal life. The last paragraph of that e‑mail reads: “I want things to be patched up instead of widening the breach between us, really need your help to know what’s wrong with him. Try to consider me as your own sister and it is a request from me. His nature towards me made others feel that he is mentally sick, which pains me. Keeping separated would give him temporary relief, but he will have to repent in future which adds to his mental illness. So I want to bring him back to his normal life, being with him through all ups and downs. If you consider my feelings as genuine please help me in this regard or else if you think this is a personal affair not to indulge, leave it.” From these lines we could read the mind of a desperate wife, who was deserted by her husband. Moreover, she was suspecting some behavioural disorders on the part of the appellant., PW1 – the appellant, when examined before the court, admitted that as well as in Kerala he had consulted a psychiatrist and was prescribed medicines also. But according to him, the doctor told him that taking the medicines was only optional. There is a clear admission from the appellant himself that there was consultation with psychiatrists, which supports the case of the respondent. The respondent wanted to patch up the relationship and bring him back to normal life, and she was ready to stand by him through his ups and downs. Exhibit B12 e‑mail cannot be taken as a cruel act from the part of the respondent so as to dissolve their marriage., Learned counsel for the appellant relied on the decision Raj Talreja v. Kavita Talreja to say that a wife making reckless defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers, amounts to cruelty from the part of the wife, entitling the husband to a decree of divorce. The appellant also relied on another decision of this Court, Beena v. Shino Babu, to say that when the attitude and behaviour of one spouse becomes unbearable to the other causing much misery and agony to the relationship, the court cannot leave the life of the spouse to the mercy of the opposite spouse. If conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce. Moreover, when both parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. When there is incompatibility, withholding consent for mutual separation itself would amount to cruelty., In the case on hand, we have seen that the respondent/wife sent Exhibit B12 e‑mail to the employer of the husband seeking his help to patch up their relationship, expressing her intention to stand by her husband through all his ups and downs. Learned counsel for the appellant contended that the respondent even alleged behavioural disorders/mental illness against the appellant, which also amounts to cruelty. But there is a clear admission from the appellant himself that, as well as in Kerala, he was taken to a psychiatrist for consultation and though medicines were prescribed, according to him, it was only optional. We cannot say that the respondent/wife made reckless, defamatory or false accusations against her husband with a view to terminate his job. On going through Exhibit B12, we could see that it was the outcry of a desperate wife, seeking to bring her husband back to normalcy, and she was seeking assistance of his employer for that purpose., The appellant contended that the respondent filed complaints before the Vanitha Cell as well as the Chief Judicial Magistrate Court against him, and that also amounts to cruelty. If the husband deserted the wife without providing her shelter and maintenance, it is her legal right to proceed against her husband, and filing of complaints to get what is legally due to her from her husband will not amount to cruelty. The appellant submitted that he was acquitted by the criminal court. The final outcome of the case depends upon many factors and the acquittal of the appellant or his relatives’ complaint filed by the wife cannot be taken as ground to find that the complaint itself was false or vexatious. The respondent/wife admitted that she had filed a complaint before the passport authority also, as she wanted the presence of her husband in the native place to get their problems resolved., The other ground of cruelty alleged by the appellant is that the respondent spat on his body in the presence of his relatives. But none of the relatives who witnessed that incident was examined by the appellant to prove such an incident. He himself admitted that after that incident the respondent apologised, and even thereafter they lived together as husband and wife. First of all, there is no evidence to prove such an incident, and if at all there was such an incident, it was condoned by the appellant. That cannot be taken as ground by the appellant to seek dissolution of marriage., Another ground of cruelty urged by the appellant is that the respondent did not know cooking and therefore she did not prepare food for him. That also cannot be termed as cruelty sufficient enough to dissolve a legal marriage. The respondent would contend that the appellant was having some sexual perversions and he was having some behavioural problems also. He was shaming her body size and complexion. But even then, she wanted to continue her matrimonial life with him and so she approached the Family Court praying for restitution of conjugal rights. One year thereafter, the appellant preferred the petition for divorce against her. Even now, the respondent says that she is ready to continue her matrimonial life with the appellant., According to the appellant, their marriage is dead practically and emotionally, and they have been living separate for the last ten years. So there is no scope for any reunion. Uthara v. Sivapriyan, Division Bench of this Court held that the period of non‑cohabitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found at fault when the other party is still ready to continue his/her matrimonial life, and no grounds recognized by law are established against the other party to break their nuptial tie. So legally, one party cannot unilaterally decide to walk out of marriage when sufficient grounds are not there justifying divorce under the law which governs them, saying that due to non‑cohabitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions. Taking into account the totality of the circumstances, we find no reason to interfere with the impugned judgments, dismissing the petition for divorce, and decreeing the decree for restitution of conjugal rights. The result, the appeals fail, and hence are dismissed.
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Against the Order dated 18 October 2012 in Appeal No. 1098/2010 of the State Commission, Andhra Pradesh, the petitioner is Mr. Abhishek Chaudhary, Amicus Curiae, with Mr. Amit Singh, Advocate. The respondents are Mr. Ritesh Khare, Advocate, Mr. Siddharth Sangal, Advocate, and Mr. Pawan Kumar Ray, Advocate. Dated 20 July 2022. This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 in challenge to the Order dated 18 October 2012 of the State Commission in appeal No. 1098 of 2010 arising out of the Order dated 29 August 2008 of the District Commission in complaint No. 335 of 2008., On the last occasion this case was taken up on 3 June 2022, sufficient time was spent hearing the complainant in person who was unable to render any meaningful assistance. He submitted that because of his pecuniary condition he could not afford the fee of an advocate and requested legal aid. Having regard to the facts and specificities of the matter and the implications involved, Mr. Abhishek Chaudhary, learned advocate, was requested to appear to represent the complainant as Amicus Curiae., We have heard the learned counsel for the complainant (the petitioner) and the Amicus Curiae, as well as the learned counsel for the bank (the respondents). We have also perused the record including the Order dated 29 August 2008 of the District Commission, the impugned Order inter alia dated 18 October 2012 of the State Commission, and the petition., Briefly, on 6 July 2005 the complainant was dismissed by the bank from the post of clerk after being imposed penalty of dismissal consequent to departmental proceedings, as his initial appointment to a post under the reserved category was found to have been obtained by submitting a false caste certificate. His grievance relates to the bank withholding a portion of the terminal benefits, i.e., provident fund (bank contribution) and gratuity, on dismissing him from service. Regarding the provident fund, his own contribution to the fund has been released to him., We note that in the first paragraph of the written version filed by the bank before the District Commission a preliminary objection was made that the complainant was not a consumer as per the Consumer Protection Act because he was seeking relief of payment of provident fund (bank contribution) and gratuity together with interest. The District Commission, vide its Order dated 29 August 2008, ignored the preliminary objection and entered into the merits of the case. Holding that the complainant was not entitled to the benefits claimed, it dismissed the complaint observing that if the complainant is not inter alia entitled to the provident fund contribution paid by the bank and gratuity from the bank, the question of deficiency in service on the part of the opposite parties does not arise. In the result, the complaint is dismissed., In appeal, the State Commission, vide its impugned Order dated 18 October 2012, also ignored the preliminary objection and entered into the facts of the case. Holding that the matter involved adjudication of disputed questions of fact, it deemed it appropriate to return the complaint to the complainant with liberty to approach the competent civil court for adjudication of the matter. It observed that the appeal is allowed, setting aside the order of the District Forum. The matter is remitted back to the District Forum, which is directed to return the complaint to the appellant. The appellant is at liberty to approach the proper court for redressal of his grievance., The learned Amicus Curiae refers to inter alia (2000) I Supreme Court Cases 98 Regional Provident Fund Commissioner versus Shiv Kumar Joshi, (2013) 10 Supreme Court Cases 136 Jagmittar Sain Bhagat and Others versus Director Health Services Haryana and Others, (2019) Supreme Court online SC 1780 Ministry of Water Resources and Others versus Shreepat Rao Kamde, (2008) 7 Supreme Court Cases 111 Regional Provident Fund Commissioner versus Bhavani, (2014) 2 Supreme Court Cases 715 Bank of Baroda versus S. K. Kool (Deceased) Through Legal Representative and Another, and (2019) 4 Supreme Court Cases 479 Senior Divisional Manager, Life, and submits that it is settled law that the Employees' Provident Fund scheme is a service within the meaning of section 2(1)(o) and an employee‑member of the Employees' Provident Fund scheme is a consumer within the meaning of section 2(1)(d)(ii) of the Consumer Protection Act, 1986., However, the case here does not involve the Employees' Provident Fund scheme but relates to the bank's, i.e., a public sector enterprise's, provident fund scheme. It is also settled that a government or public sector employee cannot raise any dispute regarding his service conditions or for payment of general provident fund, gratuity, or any other terminal benefits before any forum under the Consumer Protection Act, 1986, since a government or public sector servant does not fall within the definition of consumer as defined under section 2(1)(d)(ii) of the Act. A government or public sector servant is entitled to claim his terminal benefits strictly in accordance with his service conditions, regulations, or statutory rules framed for that purpose., He further submits that prejudice has been caused to the complainant by the District Commission as it ignored the preliminary objection regarding jurisdiction and entered into the merits while dismissing the complaint. He emphasizes that an underlying vein of the District Commission's Order is that just because the complainant was tainted with the stain of dismissal from service he had no case on merits in respect of his terminal benefits. For his misconduct he has already been awarded the penalty of dismissal; the question before the District Commission was not his misconduct or the penalty awarded but whether the provident fund (bank contribution) and gratuity ought to have been legitimately paid by the bank on his dismissal from service, and this should have been adjudicated on the facts as per the rules, not brushed aside under the taint of dismissal., He further submits that determining whether the terminal benefits were due would require examining the relevant rules and regulations, and the judicious scrutiny may also require examination of the scheme itself, which is patently vires lacking in the District Commission's Order., He further submits that the State Commission also ignored the preliminary issue of maintainability and hastened to enter into the facts of the case. The State Commission ought to have examined the question of jurisdiction first and, if lacking, should have restrained itself from entering into the facts. He submits that the State Commission has also prejudiced the complainant by its observation that the facts required adjudication in a regular suit before a civil court and could not be fairly decided in quasi‑judicial proceedings before a tribunal. Such a sweeping remark may unduly influence even a services tribunal having the competence., The submission is that the preliminary issue regarding maintainability needed to be decided first; if the complaint was found to be not maintainable, it ought not to have been further adjudicated on merits or on the nature of the facts as to whether they could or could not be adjudicated in regular civil court proceedings., The learned counsel for the bank submits that the District Commission dismissed the complaint on merit. However, the State Commission found that the case involved disputed questions of fact and returned the complaint to the complainant with liberty to take his case before a civil court. The submission is that the bank has not challenged the impugned Order of the State Commission and the same need not be disturbed., After thoughtful consideration of the submissions made, we are of the opinion that both the fora below ought to have addressed the preliminary issue of jurisdiction first, dealt with it with reasons, and should have passed speaking orders on the issue before proceeding further into the case., Insofar as the question of jurisdiction is concerned, the time‑honoured remedial measure adopted by government or public sector employees having any grievance in regard to a service matter has been to seek redressal of such service matters before the competent services tribunal or civil court. In the present case, the complainant's grievance relates to the withholding of the provident fund (bank contribution) and the gratuity. As far as gratuity is concerned, it is undisputedly a service matter and therefore not within the purview of the Consumer Protection Act, 1986. As far as the provident fund (bank contribution) is concerned, although it is settled that an employee‑member of the Employees' Provident Fund scheme is a consumer within the meaning of Section 2(1)(d)(ii) of the Act, 1986, the same cannot be said of the bank's provident fund scheme., We also note the learned submission that, in a given case, Amicus Curiae examination of the provident fund (bank contribution) may include examination of the relevant rules and regulations that govern the bank's provident fund scheme. Also, the vires pristine rule in vogue is that issues relating to the entire gamut of terminal benefits as a whole, including provident fund (bank contribution) and gratuity, have been the subject‑matter of adjudication by the competent services tribunal or civil court. Selectively segregating one particular benefit and taking it to the consumer protection fora is neither desirable nor tenable nor sustainable., Consequent to the above discussion, the revision petition is disposed of with the following directions: (i) The Order dated 29 August 2008 of the District Commission is set aside, as the District Commission did not examine the preliminary objection regarding jurisdiction and entered into the merits of the case. (ii) The Order dated 18 October 2012 of the State Commission is set aside, as the State Commission did not examine the preliminary issue regarding jurisdiction and entered into the facts of the case. (iii) The complaint is dismissed as not maintainable before the District Commission, as the terminal benefits such as the bank's provident fund contribution and gratuity, not being granted on dismissal from service, are matters for the competent services tribunal or civil court. The complaint is returned un‑adjudicated; the merits and the nature of the facts remain unexamined by the consumer protection fora. The complainant shall be at liberty to approach the competent services tribunal or civil court to seek remedy as per law. Section 14 of the Limitation Act, 1963 shall be relevant with respect to the period spent in litigation before the consumer protection fora., Before parting, we observe that the ability with which the learned Amicus has researched his brief and rendered assistance, the dispassionate manner of placing the facts and law before the bench, the perspicacity, and the fairness of approach displayed set up an example worthy of imitation by his peers. He truly deserves our approbation as he has acted as a true officer of the court in assisting us to arrive at a just and lawful decision., The Registry is requested to send a copy of this Order to the parties in the petition, to the learned counsel for the complainant and the learned counsel for the bank immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.
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The reliefs sought by the petitioner are as follows: (a) direct the Home Ministry to constitute a Renaming Commission to discover the original names of ancient historical cultural religious places that were renamed after barbaric foreign invaders, in order to maintain sovereignty and to secure the right to dignity, the right to religion and the right to culture guaranteed under Articles 21, 25 and 29 of the Constitution of India; (b) alternatively, direct the Archaeological Survey of India to research and publish the initial names of such places, to secure the right to know guaranteed under Article 19 of the Constitution; (c) direct the Central and State Governments to update their websites and records to mention the original names of these places., We have heard Shri Ashwini Kumar Upadhyay, petitioner, appearing in person., In brief, the petitioner submits that while the country celebrates the 75th anniversary of independence, many ancient historical cultural religious places bear the names of brutal foreign invaders, their servants and family members. He invokes the right to dignity flowing from Article 21, the fundamental right to culture protected by Articles 19 and 29, the right to religion under Article 25, and the right to know under Article 19(1)(a). He also argues that the continuous use of the names of the brutal invaders compromises sovereignty., The petitioner raises the following questions of law: Whether continuing the names of ancient historical cultural religious places after barbaric invaders is contrary to sovereignty; whether the Central and State Governments are obligated to restore the original names to secure the right to dignity guaranteed under Article 21; whether restoration of such names relates to the unity and integrity of the nation as envisaged in the Preamble; whether the right to profess, practice and propagate religion under Article 25 is intimately connected with the names of religious places; whether names prevalent during the Ramayana and Mahabharata periods, which were arbitrarily changed during foreign rule, ought to be restored to protect the right to conserve ancient culture guaranteed under Article 29; whether restoration of the names is connected with the right to identity guaranteed under Article 21; and whether the right to know under Article 19 includes the right to know the original names of these places., We note that, being the Supreme Court of India dealing with the matter under Article 32 of the Constitution, we are tasked with the enforcement of fundamental rights. India, referred to as Bharat in the Preamble, is a secular country. In Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, it was opined that India is a secular State in which there is no State religion (see paragraph 487). The secular and federal character of the Constitution has been identified as a basic element of the constitutional structure (see paragraph 582). Secularism was accepted by a bench of nine learned judges in S.R. Bommai and Others v. Union of India and Others as a facet of the basic structure of the Constitution. The Constitution does not prohibit the practice of any religion either privately or publicly. Through the Preamble, the people have resolved to constitute the country as a secular republic and to secure to all citizens justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity, and fraternity assuring the dignity of the individual and the unity and integrity of the nation. Article 25 guarantees freedom of conscience and the right to freely profess, practise and propagate religion subject to public order, morality and health. Article 26 guarantees every religious denomination the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs, to own and acquire property and to administer such property in accordance with law. Article 29 guarantees every section of citizens its distinct culture. Article 30 provides that minorities based on religion shall have the right to establish and administer educational institutions of their choice and prohibits the State from discriminating in granting aid to such institutions. Articles 14, 15 and 16 prohibit discrimination on the ground of religion and guarantee equal protection of law and equal opportunity in public employment. Article 44 enjoins the State to endeavour to secure a uniform civil code. Article 51-A casts a duty on every citizen to abide by the Constitution, promote harmony, value and preserve the composite culture, develop scientific temper, humanism and the spirit of inquiry, and safeguard public property. The discussion on secularism under the Constitution emphasizes that religion cannot be mixed with any secular activity of the State. The encroachment of religion into secular activities is strictly prohibited. The State’s tolerance of religion does not make it a theocratic State. When the State allows citizens to practise and profess their religions, it does not permit the introduction of religion into non‑religious and secular activities of the State. This principle is reflected in sub‑section (3) of Section 123 of the Representation of the People Act, 1951, which prohibits appeals based on religion, race, caste, community or language, and in sub‑section (3‑A), which prohibits the promotion of enmity and hatred on those grounds. Breaches of these provisions are deemed corrupt practices., In State of Karnataka v. Praveen Bhai Thogadia, the Supreme Court of India observed: Our country is the world’s most heterogeneous society with a rich heritage and the Constitution is committed to the high ideas of socialism, secularism and the integrity of the nation. Several races have converged in this subcontinent, carrying their own cultures, languages, religions and customs, and the Constitution affords positive recognition to the ideal of unity in diversity. Although these diversities created problems in early days, they were largely solved through human approaches and harmonious reconciliation. Secularism has become a part of fundamental law and an unalienable segment of the basic structure of the political system. As noted in S.R. Bommai v. Union of India, freedom of religion is granted to all persons of India, and the State gives no place to religion, faith or belief of a particular person for imposition on the individual. Vested interests fanning religious fundamentalism are attempting to stress the constitutional machinery with ideas of religious priorities, undermining national integration. Religion cannot be mixed with secular activities of the State, and fundamentalism of any kind cannot be permitted to masquerade as political philosophy to the detriment of society and the welfare State. Actions or speech that sow mutual hatred and disturb public peace must be prevented, as they threaten communal harmony, which is essential for social well‑being., In M.P. Gopalakrishnan Nair v. State of Kerala, the Supreme Court of India declared: It is now well settled that (i) the Constitution prohibits the establishment of a theocratic State; (ii) the State is prohibited from establishing any religion of its own or identifying itself with or favouring any particular religion; and (iii) secularism under the Indian Constitution does not mean the constitution of an atheist society but merely means equal status of all religions without preference or discrimination., We are of the view that the questions of law raised by the petitioner do not arise., The present and future of the country cannot remain a prisoner of the past. The governance of Bharat must conform to rule of law, secularism and constitutionalism, with Article 14 guaranteeing equality and fairness in State action., The founding fathers envisaged India as a republic that is more than a body polity with an elected President; it also involves ensuring rights to all sections of people in a democratic framework. To achieve the goals enshrined in Part IV (Directive Principles) and Part III (Fundamental Rights) of the Constitution, actions must be taken that bond all sections of society together., The history of any nation cannot haunt future generations to the point that they become prisoners of the past. The principle of fraternity enshrined in the Preamble reminds all stakeholders that harmony between different sections leads to true nationhood, a sovereign democratic republic. Courts of law, as part of the State, must be guided by the realization that Bharat is a secular nation committed to securing fundamental rights for all sections as contemplated in the Constitution., We are, therefore, of the view that the reliefs sought should not be granted by the Supreme Court of India acting as the guardian of fundamental rights under Article 32 of the Constitution, bearing in mind the values that a court must keep foremost – the Preamble provides clear guidance in this direction., The writ petition is dismissed. Writ Petition (Civil) No. 190/2023 dated 27‑02‑2023 was called for hearing. For the petitioner, Mr. Ashwini Kumar Upadhyay appeared in person; for the respondent, the Advocate on Record was Mr. Ashwani Kumar Dubey. The Supreme Court of India dismissed the writ petition in terms of the signed reportable judgment, which is placed on the file.
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Criminal Original Petition Nos. 15123 and 15124 of 2021 and Criminal Miscellaneous Petition Nos. 8250, 8251, 8252 and 8253 of 2021. Edappadi K. Palanisamy, petitioner in Criminal Original Petition No. 15123 of 2021, and O. Pannerselvam, petitioner in Criminal Original Petition No. 15124 of 2021, versus V. A. Pugazhendi, respondents in both cases. COMMON PRAYER: The Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to call for the records in Criminal Case Number 29 of 2021 on the file of the Additional Special Court for Trial of Criminal Cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai, for the alleged offence punishable under Sections 499 and 500 of the Indian Penal Code and to quash the same as against the petitioners., For petitioners: Mr. A. Natarajan, Senior Counsel for Mr. K. Gowthamkumar in Criminal Original Petition No. 15123 of 2021; Mr. Vijay Narayan, Senior Counsel for Mr. C. Thirumaran in Criminal Original Petition No. 15124 of 2021. For respondent: Mr. N. G. R. Prasad for Mr. R. Thirumoorthy. This Criminal Original Petition has been filed to quash the proceedings in Criminal Case Number 29 of 2021, on the file of the Additional Special Court for Trial of Criminal Cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai., The respondent is a businessman and social worker who was associated with the All India Anna Dravida Munnetra Kazhagam (AIADMK) political party. He contested in the State Assembly Elections and is a staunch follower of Thanthai Periyar, Anna and M. G. Ramachandran. He was a close aide of the former General Secretary of AIADMK and former Chief Minister of Tamil Nadu, the late J. Jayalalithaa. The respondent earned a good reputation over several decades in the party by relentlessly and sincerely carrying out the reasonable dictates of the party high command. Considering his sincerity and dedication, he was made the State Secretary of Karnataka State for many years. He was appointed as in‑charge and coordinator for Hosur Assembly Constituency during 2001‑2006, Srirangam Assembly Constituency in 2011 and Puducherry Assembly Elections in 2016, and was involved in drafting the election manifesto. He was also in‑charge of Krishnagiri Parliamentary Constituency during 2004, 2009 and 2014 and Dharmapuri Parliamentary Constituency in 2014., After the demise of former AIADMK General Secretary and former Chief Minister J. Jayalalithaa in December 2016, the AIADMK party split into two groups. The respondent supported the group led by T. T. V. Dinakaran. During this period, AIADMK abolished the General Secretary post and created new posts of Coordinator and Joint Coordinator, wherein the second petitioner was made Coordinator and the first petitioner Joint Coordinator., On 7 December 2020, the petitioners, Coordinator and Joint Coordinator, admitted the respondent as a member of AIADMK and appointed him as Official Spokesperson of the party. As per by‑laws, the Spokesperson automatically becomes a member of the General and Executive Council. The respondent, as Spokesperson, addressed several public meetings all over Tamil Nadu, including election public meetings, and attracted huge crowds with his impressive and eloquent speeches. He participated in several television debates, defended the AIADMK party by giving proper and relevant answers to questions raised by opponent parties, and took part in press meets in print and visual media. In appreciation of his sincerity and hard work, the petitioners made him Joint Secretary of AIADMK’s Puratchi Thalaivi Amma Peravai on 13 February 2021. He was a star campaigner for the AIADMK and campaigned across Tamil Nadu, including for the second petitioner in Bodinayakanur Constituency. As an Executive and General Council Member, he participated in the AIADMK Executive Council Meeting held on 28 September 2020 and again on 9 January 2021 at Vanagaram, Chennai. On 14 June 2021, a meeting was convened at the party headquarters for electing the opposition leader and other office bearers for the Legislative Assembly., On 14 June 2021, the petitioners announced that the respondent was expelled from all his posts and also from the primary membership of AIADMK. A letter was circulated to all media about the respondent’s expulsion by P. Mahalingam, Manager of the AIADMK office. The respondent was taken by surprise; the expulsion letter levelled vague and baseless allegations against him. He had not committed any misconduct, caused any disruption, or defamed the party, nor acted in contravention of the party’s rules and regulations. The expulsion letter directed that no AIADMK cadre should have any contact with the respondent. The petitioners, as Coordinator and Joint Coordinator, neither issued any show‑cause notice nor held any enquiry to substantiate the charges as per the party’s rules. The expulsion news was widely reported on television, YouTube, online channels, and daily newspapers, reaching all over India and abroad, especially every corner of Tamil Nadu., The petitioners, acting in concert with criminal intent, tarnished the respondent’s image. Following his expulsion and the spreading of the news, the respondent received several queries and enquiries from relatives, friends, party cadres and others. The expulsion letter damaged his reputation extensively, causing his name and fame to decline among the one crore party members of AIADMK, his friends, relatives and acquaintances. The respondent filed a private complaint before the Court of Session. The Court, after examining the respondent and one Loganathan, found grounds to proceed against the petitioners, took the case on file and issued summons. Thus, the petitioners committed the offence under Sections 499 and 500 of the Indian Penal Code., The learned senior counsel appearing for the petitioner in Criminal Original Petition No. 15123 of 2021 submitted that the petitioner is the former Chief Minister of Tamil Nadu and the Joint Coordinator of AIADMK, a political party registered under Section 29A of the Representation of the People Act, 1951. The petitioner has been a member of the party since 1972, has held several positions, and is presently the Leader of Opposition in the Tamil Nadu Legislative Assembly. AIADMK is governed by its own bye‑laws. As per Rule 5, anyone who accepts the aims, objectives, rules and regulations of the party is eligible to become a member. The petitioner, as Joint Coordinator along with the Coordinator, is vested with several responsibilities for the overall administration of the party. Rule 20‑A gives power to the Coordinator and Joint Coordinator. Rule 35(xii) empowers them to take immediate disciplinary action to remove or suspend any primary member or office bearer. The respondent, who was earlier a member of the party, split away in 2017 and was removed by a notice dated 25 December 2017. He re‑joined the party on 6 January 2020 and was nominated as Official Spokesperson. After the recent State Legislative Assembly election, the AIADMK lost power and the respondent’s conduct changed, leading to several complaints from office bearers. The respondent made statements that did not reflect the party ideology, causing damage to the party’s name. Consequently, the Coordinator and Joint Coordinator exercised their responsibilities under the bye‑laws and removed the respondent for his anti‑party activities., The petitioners argued that since the respondent was representing the AIADMK as Official Spokesperson, the decision to remove him had to be communicated to the public and party cadres. They contend that the procedure followed was the same as that followed in previous expulsions. The complaint filed by the respondent does not disclose any prima facie case under Sections 499 and 500 of the Indian Penal Code. Under the party’s rules, the petitioner/joint coordinator along with the coordinator has the authority to remove the respondent for anti‑party activities. Even if there was an infraction in following the rules, it does not give the respondent the right to file a defamation case. The expulsion notice was merely a communication informing party members of the removal. When the respondent was re‑admitted, cadres were instructed to cooperate; when he was removed, cadres were instructed not to associate with him. The respondent’s public statements did not reflect the party’s ideology and caused damage to the party. Any grievance regarding his removal can be agitated in the manner provided by law and cannot be the subject of a criminal complaint for defamation., The learned senior counsel cited Apex Court decisions holding that criminal law cannot be set in motion in a mechanical and cavalier manner, and that summoning anyone as accused is a serious matter affecting dignity, self‑respect and image in society, invoking Section 204 of the Code of Criminal Procedure. The summoning order must reflect application of mind on the facts. In the present case, the trial judge merely stated that a judicial enquiry was required in the complaint and could not dismiss it at the threshold. The Apex Court further held that the criminal process shall not be used as a weapon of harassment. The removal notice issued by the Coordinator and Joint Coordinator was in their official capacity, but the complaint proceeds against them in their personal capacity. The sworn statements of the respondent and Loganathan are contradictory. Hence, the case against the petitioners should be quashed., The petitioner in Criminal Original Petition No. 15124 of 2021 submitted that he is the Coordinator of AIADMK, a party registered under the Representation of the People Act. He has been a member for a long time, held several positions, is the party treasurer and presently the Deputy Leader of the Opposition in the Tamil Nadu Legislative Assembly. As per the party’s bye‑law, the Coordinator along with the Joint Coordinator is empowered to take disciplinary action against office bearers and members acting against the party’s interest. The expulsion notice issued to the respondent was routine and followed throughout the party. Cadres were asked not to associate with the respondent after his removal from primary membership. The respondent has not questioned the authority of the petitioner; he merely made sweeping allegations that the rules were not followed. Similar notices were issued in previous expulsions without any defamation complaint., The learned senior counsel for the petitioners emphasized that AIADMK is governed by its own bye‑laws. Admission to the party requires acceptance of its aims and objectives and compliance with its rules. The decision of the Coordinator and Joint Coordinator is final with respect to membership, conduct and discipline. Rule 20‑A(v) provides that the Coordinator and Joint Coordinator are responsible for the entire administration of the party, preside over party conferences and take disciplinary proceedings against members who violate the rules. Rule 35(xii) empowers them to remove or suspend any primary member or office bearer, and their decision is final. The petitioners, following the bye‑laws, took action against the respondent who acted detrimentally to the party’s interest. Given the party’s massive following of more than one crore members, disciplinary action is necessary to maintain order; otherwise, anarchy would ensue. The expulsion notice was a regular format previously used by former General Secretaries and was issued in good faith to protect party interests., The learned senior counsel for the petitioners relied on the following citations: Subramanian Swamy v. Union of India, Ministry of Law and Others reported in (2016) 7 SCC 221; Grievances Redressal Officer, Economic Times Internet Limited and others v. V. V. Minerals Private Limited reported in 2020 SCC OnLine Mad 978; Vijayadharani v. The Public Prosecutor, Kanyakumari District at Nagercoil in Criminal Original Petition (MD) No. 17137 of 2016, dated 3 June 2021; Rajendra Nath Mahato v. T. Ganguly reported in (1972); Rajendra Kumar Sitaram Pande and others v. Uttam and another reported in (1999) 3 SCC 134; L. Lakshmanan, Chairman and Managing Director and others v. G. Jayapalan in Criminal Original Petition Nos. 30736 to S. V. Kumar; Subramaniam v. S. Suchindranath Aiyer reported in (2014) SCC OnLine Mad 14221; S. Soundarapandian v. R. Srinivasan reported in (2015) SCC OnLine Mad 14221; Karuna and 2 others v. M. Jothisorupan in Criminal Original Petition (MD) No. 13285 of 2013; Ramachandra Venkataraman v. Shapoorji Pallonji & Company Limited and another reported in 2019 SCC OnLine Bom 524; Bettiah Lokesh v. N. Ramesh in Criminal Original Petition No. 19676 of 12., The learned counsel for the respondent submitted that the petitioners made false and misleading averments by claiming the expulsion notice was not circulated in print and visual media. The expulsion notice removing the respondent from primary membership and directing the public and AIADMK members not to interact with him was circulated through various newspapers, social media, and official AIADMK accounts on Twitter and Facebook. The respondent was made State Secretary of Karnataka State for many years by former Chief Minister and General Secretary J. Jayalalithaa and was nominated as party election in‑charge for several state assembly and parliamentary elections. After the demise of J. Jayalalithaa, the AIADMK split into two groups; the respondent supported the group led by T. T. V. Dinakaran and filed an impleading petition before the Election Commission regarding the assignment of the Two Leaves symbol in favour of Dinakaran. On 6 January 2020, the respondent was admitted as a member of AIADMK and was made the party’s Headquarters Spokesperson by the Coordinator and Joint Coordinator., As spokesperson, the respondent became a member of the party’s General and Executive Council as per bye‑law. He addressed several meetings across Tamil Nadu, participated in leading TV debates in English and Tamil, and defended the party, enhancing its image. In appreciation of his hard work, the Coordinator and Joint Coordinator appointed him Joint Secretary of AIADMK’s Puratchi Thalaivi Amma Peravai on 13 February 2021. He was a star campaigner and took part in the party’s Executive Committee Council meeting on 28 September 2020 and the Executive and General Council meeting on 9 January 2021. After the general election results on 14 June 2021, an MLAs meeting was held at the party headquarters to elect the opposition leader and other office bearers. Following that meeting, the Coordinator and Joint Coordinator suddenly announced the respondent’s expulsion from all postings and primary membership., The respondent submitted that the expulsion notice contained baseless false allegations and directed party cadres not to interact with him. The charges were vague and there was no specific incident or action warranting such extreme step. No show‑cause notice or formal enquiry was held as required under Rule 35 of the bye‑laws. The expulsion news spread across India and abroad, causing great damage to the respondent’s reputation. He received numerous calls from across the country and abroad, with relatives, friends, party cadres and the public witnessing media ridicule. The directive that cadres should not associate with him treated him as a criminal, causing severe insult. The one crore AIADMK members, his friends, relatives and acquaintances shunned him, tarnishing his image. The expulsion notice is per se defamatory, made with malafide and criminal intention, constituting an offence under Sections 499 and 500 of the Indian Penal Code. The notice did not specify any violation of policy, objectives or dignity of the party; the points raised are matters of fact., The earlier expulsion notice dated 25 December 2017 was issued after the respondent had joined another group; he did not pursue the issue. He remained with the petitioner/Coordinator before the MLAs meeting on 14 June 2021, and there was no indication of a proposed expulsion. The power vested in the Coordinator and Joint Coordinator by amending the party’s bye‑laws is challenged and is sub‑judicable. The petitioners cannot arbitrarily expel any member or office bearer without affording an opportunity to explain the allegations. Principles of natural justice cannot be overlooked, and the exemptions under Section 499 IPC would not protect the petitioners. The respondent was expelled in an undignified manner irrespective of the reason., The petitioners contend that Rule 20‑A makes the Coordinator and Joint Coordinator responsible for the entire administration of the party, but this does not absolve them from responsibility in circulating an expulsion letter with derogatory remarks. They argue that the respondent’s grievance regarding his removal can be agitated only within the party and cannot be the subject of a criminal complaint. The petitioners cannot act whimsically and arbitrarily, ignoring basic principles of natural justice. The expulsion letter devastated the respondent’s reputation, leading him to approach the Court of Session by filing a defamation complaint. The petitioners cannot blame the respondent for instituting the complaint in their personal capacity. The trial court, after examining the respondent and another person, was satisfied and took the case on file against the petitioners, issuing summons. The petitioners’ contention that their action falls under exception (viii) of Section 499 IPC and was taken in good faith is a matter of fact to be decided at trial, not in a quash petition. The trial court’s analysis shows it applied its mind to the evidence., The respondent filed the complaint on 19 July 2021 before the trial court. After recording the sworn statements of the petitioner and another witness, K. Loganathan, and considering the evidence, the trial court found a prima facie case and took the case on file, issuing summons to the petitioners. Although the complaint named three persons, the trial court analyzed the materials and took cognizance only against two petitioners, indicating it applied its mind. The petitioners’ contention that their action falls under exception (viii) of Section 499 IPC and was taken in good faith is a matter of fact to be decided at trial, not in a quash petition. The petitioners ought to appear before the trial court, follow the procedure under Section 251 of the Code of Criminal Procedure, and not have filed quash petitions. The learned counsel for the respondent filed a typed set along with citations and counter‑arguments in support of his submission.
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The learned counsel for the respondent relied upon the decision of the Supreme Court in the case of Chaman Lal vs. State of Punjab reported in 1970 AIR 1372 for the proposition that once the publication of imputation is said to have been made for public good and claiming shield under the exceptions, the onus of proving the ingredients was on the person making such imputation which has to be necessarily considered during trial and not in a quash application., Considering the rival submissions and perusal of the materials placed before this Court, it is not in dispute that the petitioners are the Coordinator and the Joint Coordinator. By amendment to the party's bye‑law and insertion of Rule 20‑A, the responsibility and authority of the Coordinator and the Joint Coordinator is enumerated. Further, under Rule 35(xii) they are empowered to take disciplinary action against office bearers, members or any primary member of the party. Admission of a member into the party is subject to Rule 5, wherein the members accept the aims and objectives, rules and regulations of the party and once they become the primary member and office bearer, they are bound by the bye‑laws. The petitioners have taken action against the respondent following the bye‑laws. The decision taken following the bye‑laws was communicated by way of an expulsion letter signed by the petitioners as Coordinator and Joint Coordinator of the All India Anna Dravida Munnetra Kazhagam party. This expulsion letter was circulated in print and visual media. According to the respondent it contained imputation causing defamation, leading to the respondent being questioned by friends, relatives, public and others. Further, the expulsion notice directed party cadres not to have contact with the respondent, which the respondent claims caused defamation., On perusal of the expulsion letter, it is seen that the former General Secretary and then Chief Minister J. Jayalalithaa, when she was in the helm of affairs in the party, used a similar format and wording while expelling errant members and office bearers. Notices of the years 2009, 2010, 2012 and 2015 were produced and are identical. The expulsion letter dated 14 June 2021 is verbatim the same except for the name of the General Secretary; it is issued in the name of the Coordinator and the Joint Coordinator. Earlier, when the respondent was expelled on 25 December 2017, the expulsion notice had identical wording. If the respondent has any grievance with regard to the manner in which he was expelled, his remedy lies elsewhere and not by filing the defamation case., On perusal of the complaint and the sworn statements of the respondent and one Loganathan, it is seen that the respondent emphasizes his long association with the party and that he was entrusted with various responsibilities, later split up and joined the parent party. According to the respondent, the expulsion letter dated 14 June 2021 defamed him and he lost his name and respect in the eyes of others. He states that his relatives are not in contact with him after circulation of the expulsion letter, but provides no details to substantiate the claim. The respondent contends that he was targeted in a planned manner, defamed, and that he did not commit any mistake or act against the party's ideology, rules and regulations. He is more hurt by the directions issued to party cadres not to have contact with him. These wordings are format words found in earlier notices, not specific to his expulsion letter. Loganathan, who has known the respondent for twenty years, said he watched television on 14 June 2021, learned of the expulsion, called the respondent to confirm, and felt that he was defamed., The Trial Court reproduced the averments in the complaint while taking the case on file. Paragraph 13 of the complaint states: After the announcement of the General Elections, the All India Anna Dravida Munnetra Kazhagam called its Members of Legislative Assembly meeting at its headquarters on 14 June 2021 for electing the Opposition office bearers of the Tamil Nadu Assembly. Simultaneously, the party's Coordinator Mr. O. Panneerselvam, the second accused, and the Joint Coordinator Mr. K. Palanisamy, the first accused, announced that the complainant was expelled from the posting and also from the primary membership of the party and circulated a letter expelling him, which was made available to the media and public at the instance of the third accused. The operative portion of the letter of expulsion is reproduced below: [gibberish removed]., The Trial Court further held that to find out whether the imputation attracts the penal provision of Section 499 of the Indian Penal Code, a judicial enquiry is necessary and the allegations cannot be discarded at the threshold. The Court observed that the complaint and sworn statement do not make out any case to proceed against the second accused and took the case on file only against the petitioners. The Court was not sure and therefore observed that judicial enquiry is necessary to determine whether the imputation attracts penal provision under Section 499 of the Indian Penal Code. Thus, even before satisfaction, summons were issued., From the complaint, sworn statements and the materials produced, this Court finds that the wording in the expulsion notice is a routine one verbatim repeated for years. Earlier expulsion notices were in the name of the General Secretary; after amendment in the bye‑laws, the notice is issued in the name of the Coordinator and Joint Coordinator, with the name of the noticee, the errant party member, otherwise identical. The respondent’s primary grievance appears to be that the petitioners did not follow the rules and regulations of the party, did not issue any show‑cause notice, failed to observe principles of natural justice and expelled him from primary membership without valid reason; his remedy lies elsewhere, not by filing a defamation case. The other grievance is the direction to party cadres not to have any contact with the respondent, which he alleges greatly affected his reputation and defamed him. The expulsion letter does not contain any imputation of such nature. As per Explanation (4) to Section 499 of the Indian Penal Code, the imputation must directly or indirectly lower the moral or intellectual character of the person or lower his credit. In this case, there is no material to show who the “others” are who questioned the respondent. The petitioners, being Coordinator and Joint Coordinator, have lawful authority to take disciplinary action against all members of the All India Anna Dravida Munnetra Kazhagam. The disciplinary action communicated through media is a usual practice. The wording in the expulsion letter is identical to earlier notices. Thus, looking at the case from any angle, this Court finds no material or reason to proceed against the petitioners; continuation of the proceeding is an abuse of process of law., In view of the above, the proceedings in Criminal Original Petition No. 29 of 2021 pending against the petitioners before the Additional Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai are hereby quashed. The petitions are allowed, accordingly. Consequently, the connected miscellaneous petitions are closed., 31 March 2022 Speaking order/Non‑speaking order Index: Yes/No Internet: Yes/No vv2/cse To the Additional Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu.
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Anuradha Sharma, Petitioner, versus Anuj Sharma, Respondent. Mr. Abhijit Sarwate with Ms. Hardev Kaur and Mr. Rahul Pardesi for the petitioner. Mr. Mayur Khandeparkar with Mr. Ajinkya Udane for the respondent., The present petition assails the order passed by the learned Judge, Family Court No.5, Pune on 13/04/2022, on an application filed by the petitioner/wife (Exhibit 12), seeking permission to relocate and shift along with her minor daughter to Krakow, Poland. By the same order, the learned Judge has partly allowed the application filed by the respondent/husband (Exhibit 18) seeking a restraint order against the wife from taking the minor daughter out of the jurisdiction of the Court and further injuncting the mother from changing the school of the daughter and for depositing her passport with the Court during the pendency of the petition. The two applications were filed in Petition Document Number 31 of 2020 i.e. a petition filed by the wife, seeking permanent custody of the minor child., The marriage between the petitioner and the respondent was solemnized on 08/07/2010 as per Hindu rites and customs. A daughter was born on 08/07/2013. The petitioner alleges that the respondent and his family were always hostile towards her and she accused her mother‑in‑law of commanding a dominant position in the household, which resulted in harassment to the petitioner, since she was required to engage in various domestic activities., The petitioner claims to be an engineer by profession and prior to her marriage she was gainfully employed with TCS and, according to her, she was graded as Class I performer (Grade A). However, because she was overburdened with domestic work, she was not able to perform and was reverted to a lower grade of performance. Attributing an irretrievable breakdown of marriage, the petitioner filed a petition for dissolution of marriage before the Family Court, Pune on 14/11/2017, stating that though she was residing with the respondent/husband and her daughter in Delhi, on account of ill‑treatment, disgrace and humiliation she returned to Pune along with her daughter and admitted her in a school, since her mother resides in Pune. She pleaded that the marriage had irretrievably broken down and the marital relationship had completely deteriorated on account of the conduct of the respondent and, expressing difficulty in continuing the relationship because of mental cruelty and agony, she sought dissolution of marriage under Section 13(1)(i) and (i‑a) of the Hindu Marriage Act., Another petition was filed by the petitioner under Sections 7 and 8 of the Guardians and Wards Act, numbered as Petition Document Number 31 of 2020, seeking relief that she be declared the sole guardian and custodian of the minor child, aged about 7 years. The petition was filed on 25/11/2020, wherein she pleaded that she had single‑handedly taken care of the daughter since birth, without any assistance from the respondent or his family, and that she was forced to leave the matrimonial home. Her parents have been supporting and assisting her in taking care of her daughter. She stated that both she and her daughter are attached to her parents, who endeavour to cooperate in the activities of the minor child, who is an extremely brilliant girl and deserves a conducive and affectionate environment. She pleaded that, as a mother, she is best suited to promote her child’s welfare and, since the child has not spent a single day under the exclusive care of the respondent, who has prioritized his career and position in society over the interest of his family and has made a meagre contribution towards maintenance of the child, the respondent is disqualified from seeking custody., The petitions were contested by the respondent/husband by filing various affidavits from time to time, and the same are pending for adjudication before the Family Court., In the proceedings of Petition Document Number 31 of 2020, the petitioner filed an application on 09/02/2022, seeking permission of the Court to relocate and travel to Krakow, Poland along with the minor daughter in the interest of justice. The application was filed in the backdrop of the fact that the petitioner is an engineer by profession and is employed in a private firm in Pune. Having regard to her excellent performance at work, she has been offered a senior position in the establishment at Krakow, Poland. It is specifically averred that the position has high visibility amongst the top performers of the company and she looks at it as a great opportunity for career advancement. It is also pleaded that it will provide Akshita, the daughter, an excellent opportunity and will ensure improvement in their standard of living. Considering the above advantages, the petitioner states that she decided to accept the position of Technical Business Analyst (equivalent to the rank of Associate Director) with UBS Business Solutions, Krakow, Poland. The position was offered earlier but could not be materialised because of the Covid pandemic; now she has found this to be a once‑in‑a‑lifetime opportunity, nominated by senior management., According to the petitioner, the date of joining in Poland was scheduled as 01/03/2022 and, therefore, to complete all necessary formalities, including seeking admission for the daughter in Krakow, she has already initiated various steps. The petitioner also stated that she is likely to take her mother along for necessary assistance and support and has searched for schools in close proximity to her office campus, which would ensure minimal commuting time for the child. Assuring that the child will not have difficulty adapting to the new environment and will receive exposure that will broaden her horizons, she pleaded that relocating to Krakow, Poland is beneficial for Akshita’s growth and welfare. She moved another application, supplementing her prayer in the earlier application and seeking necessary directions to the respondent to complete all formalities for the visa for Poland, since the formalities require his no‑objection., The application was strongly contested by the respondent/husband, who reiterated that the allegations levelled against him are false and without basis. The relief sought was opposed on the ground that the petitioner is projecting the decision to relocate to Poland as a professional decision, whereas the real intention is to break the bond between the father and the daughter by denying him access and to harass and torture the minor daughter as well as the husband. It is also pleaded that the daughter is impacted by the trauma of losing touch with family members and friends due to frequent shifting of residence and school and now, once again, she will be uprooted, having to face a completely alien culture, language, weather etc. The respondent expressed apprehension that if the child is moved away from him, he will not see the child again, as the mother may abscond, and that the relocation is not in the child’s interest. An option is given that the wife may move wherever she wants, but the child should not accompany her. Several reasons are projected, including the crime/rape rate in Poland and the present situation where nuclear facilities near Poland are being attacked daily, and that the entire Eastern European region is a potential hotspot of nuclear war. The economic stability and physical security of the region are in extreme turmoil, making relocation not in the child’s interest. Furthermore, the decision of the petitioner is criticised as unilateral, to satisfy her own ambition, and considering the deep bond of love between the child and the father, it is urged that the child be left in India so that the father and his family can cater to her needs. The long reply, running into 60 pages, seeks dismissal of the application with costs., The learned Judge of the Family Court, Pune adjudicated the application and rejected it, whereas the application filed by the respondent/husband was partly allowed. The operative portion of the order dated 13/04/2022 reads as follows: (i) The application Exhibit 12 filed by the petitioner‑wife is rejected whereas application Exhibit 18 of the respondent‑husband is partly allowed. (ii) The petitioner‑wife is restrained from taking the minor daughter Akshita out of India without the permission of the Family Court of Pune during the pendency of both the petitions Petition Application Number 1347/2017 and Petition Document Number 31/2020. (iii) The petitioner‑wife is further restrained from changing the present school of minor daughter Akshita, i.e., Kalyani International School, Pune, to any other school without the consent of the respondent‑husband and permission of this Court., I have heard learned counsel Mr. Abhijit Sarwate for the petitioner‑wife and learned counsel Mr. Mayur Khandeparkar with Advocate Mr. Ajinkya Udane for the respondent‑husband., Counsel for the petitioner, Mr. Sarwate, invited my attention to the proceedings instituted by the petitioner/wife against the respondent/husband and submitted that, on account of incompatibility between the two, for which the respondent is to be blamed, the relationship was strained and it is the wife who filed the divorce proceedings. He submitted that the Family Court has failed to consider the prospects available to the petitioner and that the order amounts to imposing fetters upon her, despite her being found suitable for the job and offered a higher position, which is necessary for her career growth. He further submitted that she is going for a limited period and has also filed an undertaking to that effect. He stated that her date for joining the new posting in Poland has been postponed from time to time and, if no timely order is passed, she may lose the opportunity forever. Apart from this, he submitted that in the affidavit filed by the petitioner, she has assured access to the father and has no intention of depriving him of meeting his child. He submitted that the father has failed to take up financial responsibility, but in any case, she will take care of her daughter. He further submitted that the Family Court has failed to take into account the decision of the Honourable Supreme Court and that the application was rejected on a flimsy and specious ground of welfare of the minor daughter. He placed reliance upon a series of judgments where, in such situations, the Honourable Supreme Court has ensured the autonomy of a woman and held that it cannot be curtailed on the ground of a prior order of custody of the child. He submitted that the right to development is a basic human right, recognised by the highest Court of this country, and therefore cannot be denied to the petitioner., Counsel for the respondent, Mr. Khandeparkar, raised a serious objection to the petitioner’s relocating the minor daughter Akshita to Krakow, Poland and submitted that the wife had previously attempted to alienate the child from him and his family under the guise of her job prospects and that the intention is to sever the ties between the father and the daughter, curtailing his visitation rights. He also submitted that the present war‑like situation prevailing in Eastern and Central Europe is not suitable for the daughter to relocate to Poland. He expressed apprehension that the daughter will not be brought back. He raised an objection that the child would be uprooted from her present environment and alleged that the petitioner has blatantly refused to follow the Court’s orders and directions, and now, by moving the daughter away from him, the respondent fears he may not see his daughter again. Submitting that the welfare of the child is the top priority and not the whims and ego of the parents, he argued that the child will face a language barrier, volatile climate, which is difficult to adjust to, potentially leading to loneliness and depression. He noted that although the petitioner assures that her mother will travel with her, the mother may not be able to provide continuous presence during the two‑year period, and that his three generations are there to take care of the child, so the relocation is vehemently opposed. He further argued that, compared with the petitioner’s pay‑scale, there is no justification for her to go on a lesser pay, suggesting that the only intention is to take the daughter away from him. He therefore requested that the order passed by the Family Court, which rightly refused permission to relocate the daughter, be upheld., \There has never been, nor will there ever be, anything quite so special as the love between the daughter and her father,\ the respondent expressed, stating that he is pained and anguished by the relocation of his daughter. Every possibility is contemplated in opposing the application on the ground that the daughter shall be uprooted. The father is apprehensive that the distance between them would widen the gap in the relationship if she is moved to Poland and that he may be permanently deprived of the daughter’s company., The petitioner/wife, who has an excellent career trajectory, is desperate to take up the job offered to her in Poland and believes it will advance her career and provide better prospects. She is therefore confronted with a choice whether to take up the opportunity or refuse it, since her husband/respondent does not want the child to accompany her. The custody of the minor girl is with the mother, who is the natural guardian, and considering the child’s age, the girl must accompany her mother, particularly as the petitioner has single‑handedly brought up the child after separation from the husband. No doubt, the issue is very sensitive, considering the deep love and affection of both parents towards young Akshita, who is likely to turn 9 in one or two days. The father enjoys access to the child, virtually and physically, at definite intervals. He is naturally concerned about the welfare of the child and his only anxiety is that the bond between them shall be severed if she is moved to Poland., In the conundrum faced by the parties, I do not think that the Court can refuse the job prospects to a mother who is inclined to take up the job and cannot be deprived of this opportunity. The Honourable Supreme Court, in the case of Vikram Vir Vohra v. Shalini Bhalla, while dealing with a similar situation, observed: \Now coming to the question of the child being taken to Australia and the consequent variations in the visitation rights of the father, this Court finds that the respondent mother is getting a better job opportunity in Australia. Her autonomy on her personhood cannot be curtailed by the Court on the ground of a prior order of custody of the child. Every person has a right to develop his or her potential. In fact, the right to development is a basic human right. The respondent‑mother cannot be asked to choose between her child and her career. It is clear that the child is very dear to her and she will spare no pains to ensure that the child gets proper education and training in order to develop his faculties and ultimately become a good citizen. If the custody of the child is denied to her, she may not be able to pursue her career in Australia and that may not be conducive either to the development of her career or to the future prospects of the child. Separating the child from his mother will be disastrous to both.\, Insofar as the father is concerned, he is already established in India and is financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but not totally ignored. The appellant‑father, for all these years, lived without the child and got used to it., Necessarily, a balance has to be drawn between the interests of both parties, giving paramount consideration to the welfare of the child, so as to ensure that in a situation where the parents are in conflict, the child has a sense of security and it is always in the interest of the child to have the presence of both parents while he or she grows up. Here, the child is with the mother with limited access granted to the father, which he must avail qualitatively. The petitioner is the mother of the child and has been continuously with the child since birth; though a working woman, she has struck a balance between her work and care and affection of the child and ensured that she enjoys a healthy upbringing. The option suggested by the husband that the child should be left with him and his family is not viable, as the little girl has always stayed with her mother, except for a few hours when she was exclusively in the company of the father or his family. One thing is clear that the girl cannot be separated from the petitioner‑mother. However, at the same time, being conscious of the fact that the child has developed a strong bond with the father and that this is required to be nurtured and continued, even if the child accompanies her mother to Poland for her better prospects, which she cannot be stopped from availing., The primary consideration must weigh in favour of the welfare of the child. The argument that the child will be uprooted fails to convince me, since Akshita is a young child who can adapt to a new environment and it is even good for her to be in a new environment; I do not think that she will feel uprooted, as the petitioner assured that she will be taking her own mother and has arranged for a school in English medium. It is not uncommon for children to shift along with their parents who decide to go abroad, and therefore the apprehension that she will be uprooted is unfounded. It is also not uncommon for a working woman to leave her child in a day‑care on account of her office responsibilities, and here the petitioner has specifically undertaken that her mother will accompany her so that she can cater to the child while the petitioner is at work. Even at present, while in Pune, it is the grandmother of Akshita who is taking care of her while the petitioner discharges her duties., The interest of the respondent/father to be in touch with his daughter can be kept intact by imposing certain conditions, and the petitioner has specifically filed an affidavit continuing his access at regular intervals when she is in Poland. Though I am not inclined to accept the pleading that Poland would serve a better environment than India, as the applicant has glorified the country in comparison to India, the petitioner, by way of affidavit, has specifically stated that she is restricting her stay there for two years to gain the job experience. For both the mother and her daughter, the period of two years cannot be said to be too long to presume that the child will be completely disassociated from the father, his family, or her country., The petitioner/wife filed an undertaking/affidavit on 24/06/2022, wherein she undertook that, as per the agreement between her and her company UBS, her joining date has been extended from time to time and, as per the recently received extension letter, her joining date is scheduled on 01/07/2022. She further undertook that the agreement does not specify a duration of her work in Poland and that she will return to India after two years of joining the company in Poland. She also assured that the proceedings pending before the Family Court, Pune as well as the J.M.F.C., Pune will not be postponed due to her non‑availability and that she shall attend the proceedings either physically or virtually and assist the Court in its early disposal., Regarding access of the child, she stated that, as per the order dated 16/08/2021 (Exhibit 98), virtual access is granted to the respondent on every Tuesday, Thursday and Saturday for 15 minutes, either by phone call or video call between 3 p.m. to 4 p.m. She undertook that the access shall continue, subject to adjustment as per the timings in Poland, since India is 3 hours and 30 minutes ahead of Poland., In the affidavit, she gave details about school vacations in Poland: (A) December winter holiday break – 8 days, 23 December to 31 December; (B) Spring break in April – 5 days, 14 April to 19 April; (C) Summer holidays June‑August – 67 days, 25 June to 31 August., Physical access: as per consent terms dated 24/08/2018 in Petition Application Number 1347/2017, the respondent is allowed to meet the daughter at the Child Care Centre, Pune on every 1st and 3rd Saturday from 2 p.m. to 5 p.m. Thus the total number of hours of physical access granted to the respondent in a year is 72 hours. Since the Spring break is only for 5 days, it would not be financially viable to spend around Rs 1.5 lakh to give access for merely 2 days. Hence she proposes to travel to India during every Christmas and Summer break and provide the respondent access as follows: (A) December – Winter break – 5 days × 5 hours = 25 hours; (B) June‑August – Summer break – 5 hours × 12 days = 60 hours. In total, she will provide the respondent access of 85 hours, which is more than the current 72 hours., The Honourable Supreme Court, in the case of Ritika Sharan v. Sujoy Ghosh, dealt with a similar situation where the parents of a 7‑year‑old child had serious differences and were living apart. The appellant/wife sought a direction to the respondent to hand over the passport for the child on the ground that she was employed by a company and posted in Singapore. The Family Court dismissed the application for the child’s passport and allowed the application filed by the respondent, restraining the appellant from taking the child out of Bengaluru. During the pendency of the writ petition, the child was allowed to travel to Singapore during Christmas vacation. The High Court dismissed the writ petition filed by the appellant, challenging the validity of the Family Court order restraining her from taking the child out of Bengaluru. While dealing with a similar situation, the Supreme Court held that the primary consideration must be the welfare of the child. It was admitted that since 2016, the appellant had taken responsibility for the welfare of the child, though earlier the child was in the care of both parents. After interacting with the child, who expressed his desire to live with the mother, the appellant was allowed to take the child with her, but the arrangement of access was modified to ensure that the father is entitled to adequate right of access and visitation.
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id_1442
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Supreme Court of India has expressed that a balance must be drawn to ensure that when parents are in conflict, the child has a sense of security. The interests of the child are best served by ensuring that both parents have a presence in his upbringing. Although it was argued on behalf of the appellant that the respondent had made no contribution to the maintenance of the child, in the interest of the child the appellant‑mother was allowed to take him to Singapore. Directions were issued in paragraph 20 of the judgment directing the appellant to make suitable arrangements to facilitate the travel and admission of the child in a school in Singapore, and the respondent was directed to hand over the passport of the child to the appellant., In order to facilitate the grant of access and visitation rights, the arrangement was specifically worked out in supersession of the previous orders of the Family Court and the High Court as follows: the respondent may engage with the child on a suitable video‑conferencing platform for one hour each on every Saturday and Sunday and for five to ten minutes on other days; should the respondent desire to travel to Singapore during the school vacations of the child, he shall be entitled to visitation over half of the vacation between 10 a.m. and 6 p.m., and may meet the child on any other day subject to mutual convenience; the appellant will ensure the presence of the child in Bengaluru during the child’s summer vacations in 2021 for at least two weeks with prior intimation to the respondent, and during that visit the respondent shall be entitled to meet the child and/or take him out between 11 a.m. and 7 p.m.; the appellant shall bring the child to India at least twice a year, during which the respondent shall have access and visitation on the terms set out above; the appellant shall file an undertaking before this Court to abide by the conditions imposed by this order., The undertaking shall specifically provide that the appellant shall (i) not relocate the child to any other country unless permitted by this Court; (ii) ensure the presence of the child during the summer vacations of 2021 unless prevented by travel restrictions imposed by the government of either country; and (iii) furnish the contact details of the child in Singapore to the respondent. It is clarified that clause (i) shall not prevent the appellant from taking the child out for holidays outside Singapore. A copy of the undertaking shall be placed on the record of the Family Court., An undertaking‑cum‑affidavit, on similar lines, has already been placed on record by the petitioner/wife. However, I intend to modify the physical access to be availed by the father during the vacations, in addition to the virtual access already assured to the father in paragraph 5 of the affidavit filed by the petitioner., The affidavit indicates three breaks for the child: (A) December break (Winter holiday) from 21 December to 31 December; (B) Spring break in April from 14 April to 19 April for five days; and (C) Summer break from 25 June to 31 August for 67 days. I do not agree that the arrangement of physical access, which was continued under the consent terms, shall continue to operate, particularly since the father will not be able to avail the physical access every month and for some months the father will not even get a glimpse of the child physically., Daughter Akshita is now nine years old. Some objections were raised about overnight or long‑duration access, alleging that the father failed to handle the child properly, for example that she had her clothes soaked and the father did not remove them or administer medicine when she was suffering from fever. Those allegations were made when she was approximately four to five years old; now, at nine, she is capable of taking care of herself. The absence of the daughter from the country can only be compensated by permitting overnight access to the father, since the quality of time, not the quantity, is significant for developing a parental bond. Therefore, the access shall be availed by the father as follows: (A) December/Winter break – father shall be granted three hours of access every day when the child is brought to India on 23 December and shall remain here until 31 December 2022; the father shall be entitled to overnight access in the first year, i.e., December 2022, for two days. (B) April/Spring break – father will be entitled to overnight access of the child for four days and five hours of access for the remaining days. (C) June to August/Summer break – father shall be entitled to 25 days of overnight access, which may be separated or continuous as per the convenience of the parties, and five hours of access for the remaining twenty‑five days., Since the petitioner will be leaving the country sometime between July and August 2022, the father shall not avail the summer‑break access for that year because the petitioner is visiting Poland and it will take time to settle her and the child. The first access therefore could be availed by the father only during the winter break in December. For the year 2023 and thereafter, the access shall be as follows: (A) December/Winter break – five days of overnight access; (B) April/Spring break – five days of overnight access; (C) June to August/Summer break – thirty days of overnight access. In addition, the respondent shall continue to have daily access for limited hours similar to that granted for the year 2022., With the aforesaid arrangement in place, it is necessary to clarify that the petitioner shall bring the child to India at her own expense during all three breaks so that the respondent‑father can avail the access., In addition to the three visits to India, if the father wishes additional access, he is permitted to travel to Poland and avail access there. During his stay, the access shall be unsupervised and shall be scheduled after considering the child’s school hours and other activities. The father is permitted to avail this access for the year 2022 between September and November, and for subsequent years, at his choice and convenience, he may visit Poland and avail daytime access. It is made clear that the petitioner shall not deny the respondent access if she is intimated fifteen days prior to his visit to Poland., The petitioner has submitted that the respondent has failed to pay the maintenance amount. When specifically asked, learned counsel Mr. Khandeparkar for the respondent stated that he is arranging for the child’s fees, presently approximately Rs 12,000 per month, and therefore he is paying approximately Rs 1,00,000 per year for the child. It is not clear what the expenses of the child will be in the new school in Poland, but since the mother has undertaken to take up a job there with an expected increase in earnings, the respondent is directed to continue his contribution of Rs 12,000 per month for the daughter’s educational expenses., The petitioner has undertaken to return to India after two years in her affidavit‑cum‑undertaking filed on 24 June 2022, but she has also placed a rider in paragraph 3 to the effect: ‘This I state subject to my rights to seek permission from the Honourable Court to travel again, if needed, on the situation then.’ In view of this statement, the respondent’s apprehension that she may continue her stay in Poland cannot be said to be baseless. However, if the petitioner intends to extend her stay in Poland beyond two years from her first travel in July‑August 2022, the respondent‑father shall be entitled to file an appropriate application before the Family Court seeking modification of the custody order, and the Family Court shall consider the application in view of the petitioner’s earlier intention to stay only two years., Since permission is now granted to the petitioner to travel to Poland with the minor daughter, and procedural formalities require a no‑objection from the father, the respondent shall accord his no‑objection on the visa application or any other documents requiring his signature within three days from the date of uploading of the order, to facilitate the petitioner in obtaining a visa for the daughter as well., With the aforesaid direction and noting that the impugned order failed to consider the important aspect of the right to development vested in the petitioner, as she cannot be asked to choose between her child and her career, the impugned order is quashed and set aside. The writ petition is allowed in the aforesaid terms.
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id_1444
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The Shiv Sena, a registered political party, having its address at Shiv Sena Central Office, Shiv Sena Bhavan, 1st Floor, Ganesh Gadkari Chowk, Dadar (West), Mumbai – 400028, through Mister Anil Desai, aged 64 years, Secretary Shiv Sena, and Mister Anil Desai, aged 64 years, Secretary Shiv Sena, having address at the same location, are the petitioners. The respondents are the Municipal Corporation of Greater Mumbai, Head Office at Mahanagar Palika Marg, Mumbai – 400001; the Municipal Corporation, Head Office at Mahanagar Palika Marg, Mumbai – 400001; and the Assistant Municipal Corporation, G/North Ward, Municipal Corporation for Greater Mumbai, Dadar, Mumbai – 400028. The applicant is Sada Sarvankar, adult of Mumbai, Indian inhabitant, Member of the Maharashtra Legislative Assembly, State of Maharashtra, and Member of Shiv Sena, having his office at Hendre Castle, D.S. Babrekar Marg, Gokhale Road, North, Dadar (West), Mumbai – 400028., Counsel for the petitioners are Mister Aspi Chinoy, Senior Advocate, along with Mister Joel Carlos; Doctor Milind Sathe, Senior Advocate, along with Mister A. Y. Sakhare, Senior Advocate, along with Ms. Oorja Dhond and Mister Sandeep Patil, on behalf of Mister S. K. Sonawane for Respondents Nos. 1 to 3 Municipal Corporation of Greater Mumbai. Mister Janak Dwarkadas, Senior Advocate, along with Mister Zal Andhyarujina, Senior Advocate, along with Mister Aurup Dasgupta, Ms. Rishika Harish, Ms. Sonam Ghiya and Aishah Shekhani, on behalf of Jhangiani Narula and Associates for the Intervenor Applicant in IAL/30406/2022. Mister Prashant Sapkate, Assistant Commissioner, G/North Ward, is present., Date: 23rd September 2022. Doctor Sathe, learned Senior Counsel, waives service for the respondents. By consent of the parties, the petition is heard forthwith. By this petition filed under Article 226 of the Constitution of India, the petitioners have prayed for a writ of mandamus against the respondents to grant permission to the petitioners for holding Dussehra Mela at Shivaji Park on 5th October 2022., During the pendency of this petition, the Municipal Corporation passed an order on 21st September 2022 rejecting the application filed by the petitioners as well as the application filed by the applicant in Interim Application (L) No. 30406 of 2022., We shall first dispose of the interim application filed by the applicant Shri Sada Sarvankar, who seeks impleadment in this petition on the ground that the petitioners have alleged to have made various incorrect statements in the petition and have suppressed various facts about the pendency of proceedings on the issue as to who is the real Shiv Sena before the Election Commission of India as well as before the Supreme Court of India and the orders passed therein., Mister Dwarkadas, learned Senior Counsel for the applicant, invited our attention to the averments made in the writ petition filed by the petitioners contending that petitioner No. 1 is the real Shiv Sena. He also invited our attention to the grounds raised in paragraphs (h) and (i) to the petition, stating that the applicant in the interim application has left the Shiv Sena party recently and is not a local MLA of the Shiv Sena. He further referred to various proceedings before the Election Commission of India and the orders passed therein as well as the orders passed by the Supreme Court of India in the rival proceedings filed by Shri Uddhav Thackeray and Shri Eknath Shinde., It is submitted by the learned Senior Counsel that the petitioners ought to have disclosed in the writ petition itself that the issue between two rivals as to who is the real Shiv Sena is pending before the Election Commission of India as well as before the Supreme Court of India. Since these crucial facts were suppressed by the petitioners, no relief can be granted to the petitioners in this petition., Mister Chinoy, learned Senior Counsel for the petitioners, on the other hand, opposes this interim application and states that the application filed by the petitioners is not rejected on the ground that petitioner No. 1 is not the real Shiv Sena or that the applicant in the interim application is a member of the real Shiv Sena., In our view, since the proceedings on the issue as to who is the real Shiv Sena are pending before the Election Commission of India as well as the Supreme Court of India and in view of the fact that the application filed by the petitioners for seeking permission to hold Dussehra Mela is not rejected on the ground that petitioner No. 1 is not the real Shiv Sena, we are not inclined to accept the submission of Mister Dwarkadas that the petitioners have suppressed any facts. It is not in dispute that to date the applicant has not impugned the order passed by the Municipal Corporation and the same is only impugned by the petitioners. Those issues are not germane to the issues involved in this petition. In our view, the applicant has no locus to intervene in this petition. The interim application filed by Shri Sada Sarvankar is accordingly rejected. This Court cannot decide the issues which are pending before the Election Commission and the Supreme Court of India., We shall now deal with the arguments advanced by the parties in the writ petition., It is the case of the petitioners that in the year 1966 Shiv Sena was formed and was registered on 19th October 1989 as a political party by the Election Commission of India under Section 29A of the Representation of the People Act, 1950., The State Government has issued a Government Resolution dated 20th January 2016 thereby granting approval for the use of the ground at Shivaji Park, Dadar every year for various events including Dussehra Mela for a period of seven days in a year., Mister Chinoy, learned Senior Counsel for the petitioners, vehemently urged that petitioner No. 1 has been applying for permission to hold such Dussehra Mela since 1966 till date, except for two years during the Covid period, and have been permitted to hold such Mela. He submitted that the State Government itself has permitted holding of Dussehra Mela by its Government Resolution dated 20th January 2016. By virtue of such permission having been granted to hold Dussehra Mela since 1966 as a matter of convention, the Municipal Corporation could not have rejected the applications filed by the petitioners., Learned Senior Counsel invited our attention to the impugned order dated 21st September 2022 passed by the Deputy Municipal Commissioner, Zone‑2, and submitted that the reasons recorded by the Deputy Municipal Commissioner while rejecting the application filed by the petitioners are two‑fold: (i) as both the opposing applicants have applied for permission for holding Dussehra Mela at the Shivaji Park ground, the grant of permission to either applicant would lead to a probability of a serious law and order situation in the sensitive Shivaji Park area; and (ii) there is a likelihood of a law and order situation. Reliance is placed on the report of the Deputy Commissioner of Police dated 21st September 2022., It is submitted by the learned Senior Counsel that the reasons recorded by the Deputy Municipal Commissioner are without application of mind and totally perverse. He submitted that merely because there is an application made by the applicant, that could not be a ground for rejecting the application made by the petitioners who have been granted permission since 1966., With respect to the second reason recorded by the Deputy Municipal Commissioner, that there is a likelihood of a law and order situation, he submitted that for several decades such rallies/Melas have been held without any grievance of law and order. The police have to take necessary steps to avoid any such situation. He further submitted that if permission is granted to the petitioners, the petitioners would take all necessary precautions to avoid a law and order situation., Per contra, Doctor Sathe, learned Senior Counsel for the Municipal Corporation, vehemently urged that there is no statutory right conferred on the petitioners to be granted such permission to hold Dussehra Mela. The petitioners have not disclosed any legal injury caused to them by virtue of the impugned order rejecting the application filed by the petitioners., It is vehemently urged by Doctor Sathe that the local police station brought to the notice of the Municipal Corporation the rift between both the parties that created tension in the locality. In view of such incidents, when the Corporation received the applications from the petitioners as well as the applicant, the Municipal Corporation sought the report from the local police station. He invited our attention to the applications filed by the petitioners as well as the applicant in the interim application and the correspondence exchanged between the Municipal Corporation and the local police station., It is submitted that on 21st September 2022, the Senior Police Inspector, Shivaji Park Police Station, informed the Corporation that in view of there being two applications, there is likely to be a law and order situation. He submitted that the report submitted by the concerned police station was rightly taken into consideration by the Municipal Corporation while rejecting the applications filed not only by the petitioners but also by the applicant. He submitted that the powers of judicial review of this Court are very limited. He submitted that the local police station having pointed out their apprehension of likelihood of law and order situation, this Court cannot express its own opinion contrary to the report of the police station., Learned Senior Counsel invited our attention to some of the applications made by both the parties in the past and submitted that on a few occasions three applications were received by the Municipal Corporation for seeking permission to hold Dussehra Mela. After taking consent of two applicants out of three, the permission was granted by the Municipal Corporation in favour of one applicant., Learned Senior Counsel submitted that the petitioners had already given up their right, if any, to apply for such permission by making a statement before this Court in earlier litigation., Learned Senior Counsel placed reliance on the following judgments: (i) Judgment of the Supreme Court of India in Railway Board Representing the Union of India v. Niranjan Singh, 1969 (1) SCC 502 (paragraphs 9 & 12); (ii) Judgment of the Supreme Court of India in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr., (1973) 1 SCC 227 (paragraphs 32 & 35); (iii) Unreported order passed by this Court on 8th October 2013 in Wecom Trust & Ors. v. Union of India & Ors.; (iv) Unreported order passed by this Court on 15th October 2012 in Wecom Trust & Ors. v. Union of India & Ors.; (v) Judgment of the Supreme Court of India in State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684 (paragraphs 6 & 7); (vi) Judgment of the Supreme Court of India in Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel & Ors., (2006) 8 SCC 200 (paragraphs 15 & 18); (vii) Judgment of the Supreme Court of India in U.P. State Road Transport Corporation and Anr. v. Mohd. Ismail & Ors., (1991) 3 SCC 239 (paragraph 12)., Mister Chinoy, learned Senior Counsel for the petitioners, in rejoinder submitted that till 2016 the petitioners had been granted such permission to hold Dussehra Mela according to tradition. Since 2016, the Shivaji Park ground was specifically earmarked in the Government Resolution for holding Dussehra Mela and permission had been granted., With respect to the personal right of the petitioners to seek such permission from the Municipal Corporation to hold Dussehra Mela, it is submitted that in view of tradition and convention, and in view of the petitioners having carried out such Dussehra Mela at Shivaji Park ground for several decades since 1966, the Municipal Corporation could not have refused to grant such permission on the flimsy ground of a law and order situation, as it is the duty of the police authorities to take such steps as necessary as they have taken in the past. The Municipal Corporation has not rejected the application on the ground that the petitioners did not have any statutory right to apply for such permission., Prior to 2016, the permission had been granted by the Municipal Corporation to the petitioners for holding Dussehra Mela. Several proceedings have been filed in this Court from time to time for seeking permission from this Court for holding various functions/processions at Shivaji Park ground., A perusal of the Government Resolution dated 20th January 2016 indicates that the State Government has approved the permission for the use of the ground at Shivaji Park for various events for a total period of forty‑five days in a year, including Dussehra Mela, Jagannath Rathyatra, Marathi Bhasha Din, Gudi Padva etc., for a period of seven days., It is not in dispute that the petitioners had applied for permission to hold Dussehra Mela first. We have perused the applications filed by the petitioners on 22nd August 2022 and 26th August 2022 and the applicant’s application filed on 30th August 2022. Since there was no response to these applications filed by the petitioners, the petitioners filed this petition on 20th September 2022 for various reliefs. The Bombay High Court granted circulation in this matter upon mentioning by the learned counsel for the petitioners for 21st September 2022., We shall now deal with the conduct of the Municipal Corporation as to how the Corporation has dealt with the applications filed by the petitioners., On 21st September 2022, the Municipal Corporation addressed a letter to the Senior Police Inspector, Shivaji Park Police Station, Mumbai informing that two applications were received by the Municipal Corporation, one from the petitioners and the other from Shri Sada Sarvankar for holding Dussehra Mela on 5th October 2022., A perusal of the acknowledgment of the said letter indicates that the same was delivered to Shivaji Park Police Station at 18.10 hrs on 21st September 2022, i.e., after the service of the papers and proceedings of the present writ petition upon the legal department of the Municipal Corporation by the petitioners. On the same day, the Senior Police Inspector wrote a letter to the Deputy Municipal Commissioner, Zone‑II stating that in view of there being two applications for seeking permission for holding Dussehra Mela in the sensitive Shivaji Park area, no permission could be granted. During the arguments, when queried about when the report from police was received by the Municipal Corporation, we were informed that the report was received on the same day late evening., Our attention is invited to the internal noting dated 21st September 2022 by the learned Senior Counsel for the Corporation in support of the submission that on the basis of the report submitted by the local police station, the Municipal Corporation decided to reject both applications, i.e., the application made by the petitioners and the application made by the applicant in the interim application. On 21st September 2022 itself, the Deputy Municipal Commissioner passed an order rejecting the applications filed by the petitioners., Learned Senior Counsel for the Corporation could not justify why the applications were not decided by the Municipal Corporation during the period between 22nd August 2022 and 21st September 2022 though Dussehra is approaching soon. Upon a query being raised, Doctor Sathe stated that the time taken in deciding the applications between 22nd August 2022 and 21st September 2022 is immaterial. The report itself was called for by the Municipal Corporation after the service of the papers and proceedings of the writ petition upon the legal department of the Municipal Corporation by the petitioners after more than four weeks. The sequence of events clearly indicates that after the petition was served, the local police station was asked to submit a report, and the Municipal Corporation took a decision and issued a letter of rejection based on such report all in a matter of few hours on the same day. The Municipal Corporation was conscious of the fact that the petitioners had applied for permission to hold the Dussehra Mela; the Corporation could have obtained a report from the local police station immediately upon receipt of the applications and need not have waited till the present petition was served on them. In our view, this unjustified manner of taking decision is certainly not a bona fide decision of the Municipal Corporation., With respect to the judgment of the Supreme Court of India in the case of Railway Board Representing the Union of India (supra) relied upon by Doctor Sathe, the issue before the Supreme Court was whether railway employees could hold a meeting in the railway premises. The Supreme Court held that the railway employees did not have a right to hold any meeting within the railway premises including the open ground. This proposition of law is not in dispute. In this case, the petitioners have applied for permission to hold Dussehra Mela at Shivaji Park which has been permitted by the State Government in the Government Resolution dated 20th January 2016., Section 37A was inserted by the Maharashtra Regional and Town Planning Act, 1966 w.e.f. 6th August 1997. The words ‘religious functions’ and ‘public meetings’ were substituted for the words ‘religious functions’ by Maharashtra 43 of 2014 dated 29th December 2014. The judgment of the Supreme Court of India in Railway Board Representing the Union of India (supra) would not advance the case of the Municipal Corporation. Similarly, the judgment of the Supreme Court of India in Himat Lal K. Shah (supra) was in respect of the power of the Commissioner of Police to prohibit/regulate members of assemblies and processions on a public street or public place etc. The said judgment is also clearly distinguishable on facts. In this case the petitioners had applied well in advance so as to enable the police to take all necessary measures and the place is notified by the Government for holding this festivity. In our view a power to regulate does not normally include the power to prohibit and consequently this judgment would not assist the case of the Municipal Corporation but advance the case of the petitioners., The order passed by this Court on 8th October 2013 in Wecom Trust & Ors. (supra) relied upon by Doctor Sathe indicates that the applicant in that matter was not asserting a right to organize a political rally at Shivaji Park, but had confined his prayer for organizing the annual Dussehra function at Shivaji Park. There is no substance in the submission of the learned Senior Counsel for the Corporation that the petitioners had given up, on their right, if any, to apply for permission in future for organizing the annual Dussehra function at Shivaji Park by making such a statement. The order would not advance the case of the Municipal Corporation., In the judgment of the Supreme Court of India in State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia (supra) relied upon by Doctor Sathe, it is held that courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. It is also held that unless there was a concrete case of abuse or exercise of sweeping powers for extraneous considerations by the authority concerned, or such authority was shown to act at the behest of those in power, the Court has ample power to interfere with those situations., In our view, the impugned order passed by the Municipal Corporation clearly shows abuse of its power whilst rejecting the applications filed by the petitioners merely on the grounds that there was another application filed by the applicant and on that account there will be a law and order situation. It is not the case of the Municipal Corporation that in the past several decades there was any law and order situation while conducting the Dussehra Mela by the petitioners., Mister Chinoy, learned Senior Counsel for the petitioners, has made a statement before this Court that the petitioners will not create a situation which would lead to law and order if permission is granted by this Court to the petitioners to hold such Dussehra Mela at Shivaji Park ground. The statement is accepted. The judgment of the Supreme Court of India in State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia thus would not assist the case of the Municipal Corporation., In the judgment of the Supreme Court of India in Jayrajbhai Jayantibhai Patel (supra) relied upon by Doctor Sathe, the Supreme Court considered the power of judicial review. It held that the Court can exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. The power of judicial review is not intended to assume a supervisory role nor to review governance under the rule of law, nor do the Courts step into areas exclusively reserved for other organs of the State. The Supreme Court also held that when the Court is satisfied that there is an abuse or misuse of power, its jurisdiction is invoked and it is incumbent on the Court to intervene. The scope of judicial review is limited to the deficiency in the decision‑making process and not the decision itself. We are satisfied that in this case the Municipal Corporation has misused its powers by refusing the application for granting permission on a flimsy ground and after a period of four weeks from the date of receipt of the application and close to the Dussehra festival. The judgment thus would not assist the case of the Municipal Corporation., In our view, the petitioners have made out a case for interference with the impugned order passed by the Municipal Corporation rejecting the grant of permission. The Government Resolution dated 20th January 2016 indicates that permission can be granted by imposing various conditions prescribed in the said resolution. The petitioners will have to comply with those conditions., We accordingly pass the following order: (i) The order dated 21st September 2022 passed by the Municipal Corporation rejecting the application filed by the petitioners is quashed and set aside. (ii) The applications dated 22nd August 2022 and 26th August 2022 filed by the petitioners for seeking permission to hold Dussehra Mela at Shivaji Park on 5th October 2022 and for preparation during the period between 2nd October 2022 and 6th October 2022 are allowed on the condition that the petitioners will have to comply with the conditions prescribed in the Government Resolution dated 20th January 2016. (iii) The petitioners will have to maintain law and order while holding Dussehra Mela on the dates for which the permission was sought. (iv) The local police station is directed to depute sufficient numbers of police officers/constables at the site on those days. (v) The concerned police station would also be at liberty to have video recording of the entire function at the cost of the petitioners. (vi) The petitioner shall co‑operate with the police officers in carrying out the order passed by this Court during the period when the Dussehra Mela would be held by the petitioners. (vii) If it is found that the petitioners were responsible for any law and order situation or if it is found that the petitioners commit any violation of the conditions prescribed in the Government Resolution dated 20th January 2016, the same would be the ground while considering any future application by the petitioners. (viii) The Municipal Corporation is directed to grant permission to the petitioners on the basis of the operative part of this order by 11.00 a.m. on 26th September 2022. (ix) The writ petition is allowed in the aforesaid terms. Rule is made absolute accordingly. (x) The interim application made by the applicant is rejected. (xi) Parties are to act on the authenticated copy of the operative part of this order.
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More than a century ago, James Joyce published Ulysses. Joyce experimented with the narrative technique by extensively using a stream of consciousness. In its modernist narrative technique, Ulysses is feted by literary critics and novelists as a literary masterpiece. Novelists such as Vladimir Nabokov and T. S. Eliot eulogized it as a divine work of art. However, others such as Virginia Woolf and Aldous Huxley criticized the novel for being technical and boring. Despite the varied criticism, the legacy of Ulysses endures particularly because its experimental narrative technique challenged the conventional literary style. Similar is the case of the group of companies doctrine, a modern theory which challenges the conventional notions of arbitration law. It is celebrated by some, reviled by many others. Yet, its legacy continues., Five judges of the Supreme Court of India are called upon to determine the validity of the group of companies doctrine in the jurisprudence of Indian arbitration. The doctrine provides that an arbitration agreement entered into by a company within a group of companies may bind non-signatory affiliates if the circumstances demonstrate the mutual intention of the parties to bind both signatories and non-signatories. This doctrine is called into question purportedly on the ground that it interferes with established legal principles such as party autonomy, privity of contract, and separate legal personality. The challenge before the Supreme Court of India is to figure out whether there can be a reconciliation between the group of companies doctrine and well-settled legal principles of corporate law and contract law., A bench of three judges of the Supreme Court of India, while considering an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, sought to reexamine the validity of the group of companies doctrine in the Indian context on the ground that it is premised more on economic efficiency rather than law. The bench of three judges (speaking through the majority opinion authored by Chief Justice N. V. Ramana, as he was then, and the concurring opinion by Justice Surya Kant) doubted the correctness of the application of the doctrine by the Indian courts., Chief Justice Ramana criticised the approach of a three‑judge bench of the Supreme Court of India in Chloro Controls India (P) Ltd v. Severn Trent Water Purification Inc. of relying upon the phrase ‘claiming through or under’ in Section 45 of the Arbitration and Conciliation Act to adopt the group of companies doctrine. He noted that subsequent decisions of the Supreme Court of India established the doctrine in Sections 8 and 35 without adequately examining the interpretation of the phrase ‘claiming through or under’ appearing in those provisions. These decisions include Cheran Properties Ltd v. Kasturi and Sons Ltd, Mahanagar Telephone Nigam Ltd v. Canara Bank, and Oil and Natural Gas Corporation Ltd v. Discovery Enterprises Pvt. Ltd. He also observed that economic concepts such as tight group structure and single economic unit alone cannot be utilized to bind a non‑signatory to an arbitration agreement in the absence of express consent. Consequently, he referred the matter to the larger bench to seek clarity on the interpretation of the phrase ‘claiming through or under’ appearing under Sections 8, 35, and 45 of the Arbitration and Conciliation Act by formulating the following two questions: (a) Whether the phrase ‘claiming through or under’ in Sections 8 and 11 could be interpreted to include the group of companies doctrine; and (b) Whether the group of companies doctrine as expounded by the Chloro Controls case and subsequent judgments is valid in law., In a concurring opinion, Justice Surya Kant observed that the decisions of the Supreme Court of India before Chloro Controls, rendered in Sukanya Holdings (P) Ltd v. Jayesh H. Pandya and Indowind Energy Ltd v. Wescare (I) Ltd, adopted a rigid and restrictive approach by placing undue emphasis on formal consent. Justice Surya Kant traced the evolution of the group of companies doctrine to observe it had gained a firm footing in Indian jurisprudence. However, he opined that the Supreme Court of India adopted inconsistent approaches while applying the doctrine in India, which needed to be clarified by a larger bench. Accordingly, he highlighted the following questions of law for determination by the larger bench: (a) Whether the group of companies doctrine should be read into Section 8 of the Act or whether it can exist in Indian jurisprudence independent of any statutory provision; (b) Whether the group of companies doctrine should continue to be invoked on the basis of the principle of single economic reality; (c) Whether the group of companies doctrine should be construed as a means of interpreting implied consent or intent to arbitrate between the parties; and (d) Whether the principles of alter ego and/or piercing the corporate veil can alone justify pressing the group of companies doctrine into operation even in the absence of implied consent., We are not reproducing the factual matrix of the case, as we have been called upon to settle the broader legal issues raised in the reference. In the process, we will answer the above legal issues, as well as other ancillary issues that have been raised before us by counsel., Mr Hiroo Advani, learned counsel appearing for the petitioner in Arbitration Petition No. 38 of 2020, made the following submissions: (a) The basis for the application of the group of companies doctrine is the tacit or implied consent by the non‑signatory to be bound by the arbitration agreement; (b) The definition of ‘party’ under Section 2(1)(h) of the Arbitration and Conciliation Act cannot be restricted to the signatories to an arbitration agreement. The definition should be read expansively to also include non‑signatories depending upon the facts and circumstances; (c) Section 7 of the Arbitration and Conciliation Act provides that the defined legal relationship between the parties may be non‑contractual as well. Moreover, Section 7(4)(b) indicates that a non‑signatory could be bound by an arbitration agreement if in the course of a written communication it has demonstrated an intention to be bound by the agreement; and (d) The group of companies doctrine should ideally be applied by the arbitral tribunal. At the stage of referral, the court should merely take a prima facie view and leave it for the arbitral tribunal to determine the necessity of joining the non‑signatories to the arbitration agreement., Mr Darius J. Khambata, learned senior counsel appearing for the respondents in Special Leave Petition (Civil) No. 8607 of 2022, made the following submissions: (a) The applicability of the group of companies doctrine must be examined from the touchstone of whether a non‑signatory could be made a party to the arbitration agreement. The expression ‘claiming through or under a party’ cannot be the basis to apply the doctrine; (b) The doctrine is a consensual theory premised on the existence of a dispute arising from a defined legal relationship and mutual intention of the parties to be bound by the arbitration agreement. The intention of the non‑signatory has to be ascertained from the cumulative factors laid down in Chloro Controls; (c) The following requirements must be met for the application of the group of companies doctrine to bind the non‑signatory as a veritable party to the arbitration agreement: (i) mutual intention of all the parties, both signatories and non‑signatories, to be bound by the arbitration agreement; (ii) absolute and unqualified acceptance by the non‑signatory party to the arbitration agreement; and (iii) such acceptance must either be expressed or implied. In the context of a non‑signatory, such acceptance will be implied and manifested in the negotiation, performance, or termination of the contract; (d) Mutual consent of the parties to refer disputes arising out of their defined legal relationship to arbitration is the essential ingredient of an arbitration agreement. It would be against the concept of party autonomy to bind a non‑signatory to an arbitration agreement without ascertaining their consent; (e) The concept of ‘party’ to an arbitration agreement is distinct from the concept of a person ‘claiming through or under’ a party. The latter expression conveys the notion of a derivative cause of action where the non‑signatory steps into the shoes of the party rather than claiming an independent right under the agreement. The typical scenarios where a person claims through or under a party are assignment, subrogation, and novation; and (f) Concepts such as tight group structure and single economic unit cannot be the sole basis to invoke the group of companies doctrine. This doctrine cannot be applied to bind a non‑signatory merely on account of it being under the ownership, control, or supervision of the signatory party., Dr A. M. Singhvi, learned senior counsel appearing for the interveners in IA No. 92757 of 2022, made the following submissions: (a) The group of companies doctrine constitutes a true and genuine effectuation of the real intent of the parties to subject both the signatory and non‑signatory parties to the arbitration agreement; (b) The doctrine is a reasonable and natural extension of the principle of piercing the corporate veil. The application of the doctrine is also justified in affixing responsibility when the requisite and sufficient degree of common ownership and control exists; (c) The intention of the parties cannot be the only basis to join a non‑signatory party to an arbitration agreement. The court can also consider non‑consensual doctrines such as piercing the corporate veil, alter ego, or tight group structure; and (d) The Arbitration and Conciliation Act does not prohibit or inhibit the adoption of the group of companies doctrine in Indian arbitration jurisprudence. On the contrary, Section 7 of the Arbitration and Conciliation Act provides an expansive concept of an arbitration agreement. Moreover, the legislature specifically amended Section 8 of the Arbitration and Conciliation Act by inserting the words ‘any person claiming through or under’ to recognize and codify the reality of non‑signatories acting through or under the signatory parties., Mr Kapil Sibal, learned senior counsel appearing for the intervener in IA No. 56615 of 2023, made the following submissions: (a) A non‑signatory can be impleaded in an arbitration proceeding provided (i) there is a defined legal relationship between the non‑signatory and the parties to the arbitration agreement; and (ii) the non‑signatory consented to be bound by the arbitration agreement in terms of Section 7 of the Arbitration and Conciliation Act; (b) The onus to prove the intention of the non‑signatory to be bound by the arbitration agreement lies on the party seeking to implead the non‑signatory; (c) In view of the requirement under Section 7 of the Arbitration and Conciliation Act, an arbitration agreement has to be in writing and there cannot be an oral agreement to arbitrate. Regardless, the intention of the non‑signatory to be bound by the arbitration agreement can be gathered from conduct; (d) Arbitration is in the realm of private law, and a matter of choice and intent of the parties. Therefore, factors such as economic convenience, justice, or equity cannot be grounds for binding non‑signatories to an arbitration agreement; and (e) The cumulative factors laid down by this Court in Discovery Enterprises cannot be considered in isolation, and must be applied holistically to determine the applicability of the group of companies doctrine in a given factual matrix., Mr Nakul Dewan, learned senior counsel appearing for the respondent in Special Leave Petition (Civil) No. 8607 of 2022, made the following submissions: (a) The group of companies doctrine and single economic entity doctrine are purely economic concepts without any basis in either contract law or company law. Therefore, they cannot be applied to determine the intention of non‑signatories to be bound by an arbitration agreement; (b) The decision of a party not to sign the arbitration agreement may form the basis to demonstrate an intent not to be bound by it; (c) The mere fact of multiple agreements or that the non‑signatory was involved in the negotiation of the contract cannot form the basis to bind it to the arbitration agreement; (d) The phrase ‘claiming through or under’ which finds mention under Sections 8 and 45 of the Arbitration and Conciliation Act cannot be the basis for the application of the group of companies doctrine; and (e) The determination of the intention of parties to a contract should relate only to the intention held at the time of entering into the contract, which can be gathered objectively from the text of the contract. However, Chloro Controls, which considers consequential or subsequent agreements to determine the mutual intention of the parties, is incorrect., Mr Ritin Rai, learned senior counsel appearing for the respondent in Arbitration Petition No. 38 of 2020, made the following submissions: (a) Section 7 of the Arbitration and Conciliation Act requires the arbitration agreement to be in writing. Therefore, an arbitration agreement cannot be created on the basis of implied consent of the non‑signatory; (b) Complex multi‑party contracts are outcomes of detailed negotiations entered into after parties have fully applied their mind. To impute intention to parties in contradiction to the express terms of the agreement would defeat the purpose of the parties memorializing their understanding in a negotiated, written document; (c) An arbitration agreement which sets out the executing parties and the arbitral procedure agreed among them cannot be read to expand its reach to third parties; (d) The group of companies doctrine cannot be traced to the phrase ‘claiming through or under’ as provided under Sections 8 and 45 of the Arbitration and Conciliation Act; (e) Chloro Controls erroneously failed to consider whether an implied consent derived from the conduct of a non‑signatory satisfied the requirement of a clear intention to arbitrate. Moreover, Chloro Controls wrongly held that the courts have the discretion to refer non‑signatory parties to arbitration under Sections 8 or 45 of the Arbitration and Conciliation Act in exceptional cases. The introduction of such a discretion brings uncertainty in arbitration practice in India., Mr Tushar Mehta, learned Solicitor General appearing on behalf of the Union of India, made the following submissions: (a) Since India follows the UNCITRAL Model Law, concepts of commercial element and business prudence have to be considered while interpreting the provisions of the Arbitration and Conciliation Act; (b) The group of companies doctrine is inbuilt in the overall scheme of the Arbitration and Conciliation Act. Section 7 uses the broad phrase ‘defined relationship’ whether contractual or otherwise to convey that an arbitration agreement is not restricted to a conventional agreement; (c) The insertion of the words ‘claiming through or under’ in Section 8 of the Arbitration and Conciliation Act is merely in furtherance of the legislative intent to confer locus on yet another category of persons to insist that the judicial authority must refer the dispute before it to arbitration; and (d) If the referral court under Sections 8 and 11 cannot prima facie determine the issue of joinder of a non‑signatory to the arbitration agreement on the basis of the group of companies doctrine, it can refer the issue to be decided by the arbitral tribunal., Mr Sanjoy Ghose, learned senior counsel appearing on behalf of the petitioner in Special Leave Petition (Civil) No. 8607 of 2022, made the following submissions: (a) Section 2(1)(h) uses the term ‘party’ and not ‘signatory’ to account for situations where a non‑signatory enters the shoes of a signatory party either by succession, operation of law, assignment, or death; (b) The group of companies doctrine contravenes the provisions of corporate law by fixing liability on an entity that is not a party to an arbitration agreement. Mere participation in the negotiation or performance of the contract cannot bind a non‑signatory to the arbitration agreement in the absence of express consent., Mr Pallav Mongia, learned advocate on behalf of the interveners in IA No. 58168 of 2023, submitted that Section 2(1)(h) of the Arbitration and Conciliation Act does not restrict the definition of parties to signatories. Rather, the definition has to be inferred from Section 7. Section 7(4) expands the definition of parties to non‑signatories., Ms Meenakshi Arora, learned senior counsel on behalf of the respondent in Special Leave Petition (Civil) No. 8607 of 2022, argued for de‑tagging of Special Leave Petition (Civil) No. 8607 of 2022 from the lead matter, that is Arbitration Petition No. 38 of 2020, as the former deals with power of the courts to issue directions under Section 9 of the Arbitration and Conciliation Act against third parties. Further, the learned senior counsel submitted that the courts can take aid of the group of companies doctrine to issue interim directions against non‑signatories to the arbitration agreement., The arguments advanced by advocates on both sides indicate that this Constitution Bench of the Supreme Court of India has been primarily called upon to determine the validity of the group of companies doctrine in Indian arbitration jurisprudence. However, there are other broad ancillary issues which have been raised by the learned counsel. These include: (i) whether the Arbitration and Conciliation Act allows joinder of a non‑signatory as a party to an arbitration agreement; and (ii) whether Section 7 of the Arbitration and Conciliation Act allows for determination of an intention to arbitrate on the basis of the conduct of the parties. This bench will address the issues arising out of the order of reference as well as the abovementioned ancillary issues in due course., Before the enactment of the Arbitration and Conciliation Act, the law on arbitration was substantially contained in the Arbitration Act of 1940, the Arbitration (Protocol and Convention) Act of 1937, and the Foreign Awards (Recognition and Enforcement) Act of 1961. In 1978, the Law Commission of India suggested substantive amendments to the 1940 Act. Moreover, the United Nations Commission on International Trade Law adopted the Model Law on International Commercial Arbitration in 1985. The General Assembly of the United Nations recommended all Member States to adopt the UNCITRAL Model Law in their domestic legislation with a view to uniformising the law of arbitral procedures. The Arbitration and Conciliation Act was enacted to consolidate and amend the law relating to arbitration. It brought the law relating to domestic and international commercial arbitration in consonance with the UNCITRAL Model Law, the New York Convention, and the Geneva Convention., Section 2(1)(h) of the Arbitration and Conciliation Act defines a ‘party’ to mean a party to an arbitration agreement. An arbitration agreement is defined under Section 2(1)(b) to mean an agreement referred to in Section 7. Section 7 lays down the essential elements of a valid and binding arbitration agreement. It defines an arbitration agreement as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. The provision also mandates that an arbitration agreement shall be in writing. An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telexes, telegrams, or other means of telecommunication including communication through electronic means which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. Section 7(5) further stipulates that the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if two conditions are satisfied: first, that the contract is in writing; and second, that the reference is such as to make the arbitration clause part of the contract., An arbitration agreement, being a creature of contract, is based on the consent of parties to submit their disputes to an alternate dispute resolution mechanism. Generally, a party to an arbitration agreement is determined on the basis of persons or entities who are signatories to the arbitration agreement or the underlying contract containing the arbitration agreement. However, over the past two decades the law on joinder of non‑signatory parties has evolved substantially. The evolution can be roughly classified into two stages: before Chloro Controls and after Chloro Controls., In the pre‑Chloro Controls era, this Court construed parties by limiting it only to the signatories to the arbitration agreement. In Sukanya Holdings the applicant filed an application under Section 8 of the Arbitration and Conciliation Act before the High Court and sought to enforce the arbitration agreement against both the signatories and non‑signatories to the agreement. The High Court rejected the application on the ground that the non‑signatories were not parties to the arbitration agreement. In appeal, this Court upheld the decision of the High Court by observing that there is no provision under the Arbitration and Conciliation Act stipulating what is required to be done where some parties to the suit are not parties to the arbitration agreement. In Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd, this Court, while dealing with an international commercial arbitration, held that a party to an arbitration agreement means a party to the judicial proceedings. This was expressly held to be erroneous in Chloro Controls, where it was held that a party has to be construed in view of Section 2(1)(h) to mean a party to an arbitration agreement., The interpretation of the expression ‘party’ as defined under Section 2(1)(h) came up for the consideration of this Court in Indowind Energy Ltd. In that case, an agreement of sale was entered into by the first and second respondents. The agreement described the second respondent as the buyer and promoter of Indowind, the non‑signatory. After a dispute arose, the first respondent instituted an application under Section 11(6) of the Arbitration and Conciliation Act against the second respondent and Indowind. Indowind resisted the impleadment on the ground that it was not a party to the underlying sale agreement and, therefore, had not consented to be bound by the arbitration clause. The issue before this Court was whether the arbitration agreement contained in the sale agreement was binding on Indowind. This Court refused to join Indowind to the arbitration agreement on the ground that (i) Indowind was not a signatory to the sale agreement; (ii) Indowind and the promoter company were two independent companies with a separate and distinct legal existence; and (iii) the fact that Indowind did not sign the sale agreement indicated that it was the mutual intention of all the parties to not make it a party to the arbitration agreement., The pre‑Chloro Controls position was characterized by three underlying precepts: (i) arbitration could be invoked at the instance of a signatory to the arbitration agreement only in respect to disputes with another signatory party; (ii) the court would adopt a strict interpretation of the provisions of the Arbitration and Conciliation Act, particularly the unamended Section 8 which only allowed reference of parties to an arbitration agreement; and (iii) there was an emphasis on formal consent of the parties, thereby excluding any scope for implied consent of non‑signatories to be bound by an arbitration agreement. This position of law underwent a significant change when a bench of three judges of this Court in Chloro Controls allowed joinder of non‑signatory parties to the arbitration agreement on the basis of the group of companies doctrine., In Chloro Controls this Court was called upon to determine an arbitral reference in case of multiparty agreements where performance of the ancillary agreements was substantially dependent upon effective execution of the principal agreement. In that case, a foreign entity and an Indian entity incorporated a joint venture company to market and distribute chlorination equipment. With respect to the joint venture, the related companies of both the Indian and foreign entity were also involved. Consequently, the parties concluded several ancillary agreements such as a Shareholders Agreement which contained an arbitration clause. All the contracting parties were not signatories to all the agreements, including the Shareholders Agreement. When disputes arose between the parties, the foreign entities sought to terminate the joint venture. The Indian entity filed an application before the High Court seeking a declaration to restrain the foreign entities from repudiating their obligations under the agreements. In response, the foreign entities applied for referring the disputes to arbitration in view of the fact that the agreements were binding on the non‑signatories because of the composite nature of the transaction. A single judge of the High Court granted the application of the Indian entity, which was set aside by the Division Bench of the High Court. The primary issue before this Court pertained to the ambit and scope of Section 45 of the Arbitration and Conciliation Act. This Court framed the issue in the following terms: Whether in a case where multiple agreements are signed between different parties and where some contain an arbitration clause and others do not and further the parties are not identically common in proceedings before the court (in a suit) and the arbitral agreement, a reference of disputes as a whole or in part can be made to the Arbitral Tribunal, more particularly, where the parties to an action are claiming under or through a party to the arbitration agreement., Section 45 of the Arbitration and Conciliation Act in its unamended form reads as follows: ‘Power of judicial authority to refer parties to arbitration. Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, that the said agreement is null and void, inoperative or incapable of being performed.’ In view of the language of Section 45, this Court held that the expression ‘any person’ reflects a legislative intent of enlarging the scope beyond parties who are signatories to the arbitration agreement to include non‑signatories. However, the court noted that such non‑signatory parties are required to claim through or under the signatory party. Thus this Court accepted that arbitration is possible between a signatory to an arbitration agreement and a third party or non‑signatory claiming through a party., The next issue before this Court was to determine whether there was any legal relationship between the signatory and the non‑signatory for the latter to claim through or under the former. The Court noted that the group of companies doctrine has been developed by courts and tribunals in the international context to bind a non‑signatory affiliate or sister concern within the same corporate group as the signatory party to an arbitration agreement provided there was a mutual intention of all the parties. This Court emphasized that the intention of the parties is the underlying principle for the application of the group of companies doctrine. It observed: ‘This evolves the principle that a non‑signatory party could be subjected to arbitration provided these transactions were with group of companies and there was a clear intention of the parties to bind both, the signatory as well as the non‑signatory parties.’, The Court held that a non‑signatory could be subjected to arbitration without their prior consent in exceptional cases on the basis of four determinative factors: (i) a direct relationship to the party which is a signatory to the arbitration agreement; (ii) a direct commonality of the subject‑matter and the agreement between the parties being a composite transaction; (iii) the transaction being of a composite nature where performance of the mother agreement may not be feasible without the aid, execution, and performance of supplementary or ancillary agreements for achieving the common object and collectively have a bearing on the dispute; and (iv) a composite reference of such parties will serve the ends of justice.
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id_1445
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Supreme Court of India, in Chloro Controls (supra), acknowledged that cases of composite transactions involving multi‑party agreements give rise to peculiar challenges where non‑signatories may be implicated in the dispute because of their legal relationship and involvement in the performance of contractual obligations. To remedy such situations, it was held that the group of companies doctrine could be applied to systematically evaluate the facts and circumstances to determine a clear intention of the parties to bind both the signatory as well as the non‑signatory parties to the arbitration agreement. Chloro Controls dealt with a situation where the success of the joint venture agreement was dependent upon the fulfilment of all the ancillary agreements. The Court observed that all the ancillary agreements were relatable to the parent agreement and were intrinsically linked with each other, to the extent that they could not be severed. This indicated the intention of the parties to refer all disputes arising out of the parent agreement and ancillary agreements to the arbitral tribunal. The Court explained the phrase legal relationship to mean the relationship of the signatory party with the person claiming under or through them. It observed that all the agreements were signed by some parties or their holding companies or the companies into which the signatory company had merged. Although these companies did not put pen to paper for all the agreements, they were descendants in interest or subsidiaries of the signatory parties and therefore would be covered under the expression claiming through or under the parties to the agreement. Being part of the same corporate group, the interests of the non‑signatory companies were not adverse to the interest of the principal company and the joint venture company. Therefore, the group of companies doctrine formed the basis for a non‑signatory to claim through or under the signatory. Chloro Controls laid down the ratio that a non‑signatory person or entity could be made a party to an arbitration agreement, as claiming through or under a signatory party, if the circumstances demonstrate the mutual intention of the parties on the basis of the composite nature of the transaction, direct commonality of subject‑matter, and direct relationship of the non‑signatory to the signatory parties., In the aftermath of Chloro Controls, the Law Commission of India published a report in 2014 recommending amendments to the Arbitration and Conciliation Act, 1996. The Commission observed that the phrase claiming through or under as used and understood in Section 45 is absent in the corresponding provision of Section 8. To cure this anomaly, it was suggested that the definition of party under Section 2(1)(h) be amended to also include the expression a person claiming through or under such party. In 2016, the legislature amended Section 8 to bring it in line with Section 45. The unamended Section 8(1) provided that a party to an arbitration agreement could make an application seeking a reference to arbitration. The amended Section 8(1) provided that a party to an arbitration agreement or any person claiming through or under him could seek a reference to arbitration. However, the legislature did not bring about any change in the language of Section 2(1)(h) or Section 7. Since Chloro Controls and the amendment to Section 8, subsequent decisions of the Supreme Court of India have referred to the group of companies doctrine to join non‑signatory persons or entities to arbitration agreements., In Cheran Properties (supra), the issue before the Supreme Court of India was whether the arbitral award could be enforced under Section 35 of the Arbitration and Conciliation Act, 1996 against a non‑signatory who was a nominee of one of the signatory parties to the arbitration agreement and a direct beneficiary of the underlying contract between the signatories. Section 35 postulates that an arbitral award shall be final and binding on the parties and persons claiming under them respectively. The Court observed that the expression persons claiming under them refers to every person whose capacity or position is derived from and is the same as a party to the proceedings. It held that the non‑signatory, being a nominee of one of the signatory parties, was bound by the arbitral award as it was claiming under the signatory. The Court interpreted the group of companies doctrine to hold that its true purport is to enforce the common intention of the parties where the circumstances indicate that both the signatories and non‑signatories were intended to be bound. Justice D.Y. Chandrachud explained that modern business transactions are often effectuated through multiple layers and agreements, and the doctrine facilitates the fulfilment of a mutually held intent between the parties where the intent was to bind both signatories and non‑signatories. The Court emphasized factors such as the relationship of a non‑signatory to a party which is a signatory, the commonality of subject‑matter and the composite nature of the transaction., The decision in Cheran Properties holds that the group of companies doctrine is applied to bind a non‑signatory party upon construction of the arbitration agreement, the circumstances existing at the time of entering into the contract, and the performance of the underlying contract. However, the Court did not apply the doctrine to make the non‑signatory a party to the arbitration agreement; rather, it made the arbitral award binding on a non‑signatory under Section 35 on the ground that it was claiming under a signatory. In Ameet Lalchand Shah v. Rishabh Enterprises, a two‑Judge Bench of the Supreme Court of India dealt with an arbitral dispute arising out of four interconnected agreements executed towards a single commercial project. The issue was whether the four agreements were interconnected to refer all the parties to arbitration. The Court relied on Chloro Controls to hold that a non‑signatory, which is a party to an interconnected agreement, would be bound by the arbitration clause in the principal agreement. It observed that, in view of the composite nature of the transaction, the disputes between the parties to various agreements could be resolved effectively by referring all of them to arbitration. In Reckitt Benckiser (India) Private Limited v. Reynders Label Printing India Private Limited, the Court observed prima facie that the parties belonged to the same group of companies. The Court held that the non‑signatory party, although a constituent part of the corporate group, did not have any causal connection with the negotiation or execution of the underlying contract; thus, participation of the non‑signatory in the negotiation and performance of the underlying contract was the key determinant of the intention of the parties to be bound by an arbitration agreement., In Canara Bank (supra), the Supreme Court of India emphasized that the group of companies doctrine could be invoked on the basis of the principle of a single economic unit. Canbank Financial Services Ltd, a wholly owned subsidiary of Canara Bank, subscribed to bonds floated by MTNL and subsequently transferred the bonds to Canara Bank. After MTNL cancelled the bonds, Canara Bank filed a writ petition before the Delhi High Court challenging the cancellation. The High Court referred the parties to arbitration, but Canara Bank challenged the impleadment of Canbank Financial Services Ltd. The Supreme Court dismissed the objection, holding that the subsidiary was a necessary and proper party to the arbitral proceedings as the original purchaser of the bonds. The Court noted that the doctrine could also be invoked where there is a tight group structure with strong organisational and financial links, constituting a single economic reality. The last decision in the series is Discovery Enterprises (supra). ONGC entered into a contract with Discovery Enterprises for operating a shipping vessel and invoked the arbitration clause against Discovery Enterprises and Jindal Drilling and Industries Ltd, a sister company of Discovery Enterprises. The arbitral tribunal refused to proceed against Jindal Drilling, stating it was not a signatory. ONGC appealed under Section 37, and the Supreme Court, citing Chloro Controls and subsequent decisions, held that the group of companies doctrine can be applied to bind a company within a group which is not a signatory. The Court added that, in addition to the cumulative factors laid down in Chloro Controls, the performance of the contract is an essential factor to consider. The Court set aside the tribunal’s decision and remanded the matter for fresh determination., The application of the group of companies doctrine in arbitration law originated from decisions rendered by international arbitral tribunals. In France, the doctrine is traced to the Dow Chemicals case. The International Chamber of Commerce delivered an interim award in Case No. 4131 (Dow Chemical v. Isover Saint Gobain, 23 September 1982). Dow Chemical (Venezuela) entered into a contract with a French company, which later assigned the rights to Isover Saint Gobain, and subsequently assigned the contract to Dow Chemical AG, a subsidiary of Dow Chemical Company. Dow Chemical Europe, another subsidiary, entered into a similar contract with three companies, which later assigned the contract to Isover Saint Gobain. All contracts provided that deliveries would be made by Dow Chemical France or any other subsidiary of Dow Chemical Company. The tribunal examined whether it had jurisdiction over the non‑signatory parties and determined that a common intention existed to bind them. It held that Dow Chemical France was a party to the contracts because it played a preponderant role in negotiation, performance, and termination. The holding company, Dow Chemical Company, owned the trademarks and exercised absolute control over its subsidiaries, and was therefore also a party. The tribunal emphasized that a group of companies constitutes one economic reality, but a non‑signatory may be bound by the arbitration agreement if it appears to be a veritable party to the contracts based on its involvement in negotiation, performance, and termination. The Dow Chemical award marked a shift from a restrictive interpretation of consent to a flexible approach that recognises implied consent., In Switzerland, Section 178(1) of the Swiss Private International Law Act 1987 requires an arbitration agreement to be in writing or otherwise evidenced by text. The Swiss Federal Supreme Court held in 2003 that once a valid arbitration clause exists, the question of its extension to non‑signatories may be decided by courts or arbitral tribunals. As a general rule, Swiss courts have extended arbitration agreements to non‑signatories in cases of assignment of a claim, assumption of debt or delegation of a contract. However, a 1996 decision held that mere belonging to the same group of companies is not sufficient to bind a non‑signatory. Swiss courts are willing to extend an arbitration agreement to non‑signatories if there is an independent and formally valid manifestation of consent by the non‑signatory. In a 2008 decision, the Court held that conduct may substitute for formal compliance, and that implied consent can be inferred from the non‑signatory’s involvement in negotiation and performance of the contract., The English courts have generally taken a conservative approach to binding non‑signatory parties to arbitration agreements. Section 82(2) of the English Arbitration Act 1996 defines a party to an arbitration agreement to include any person claiming under or through a party to the agreement. English law permits extension only where the non‑signatory is claiming under or through the original party, relying on doctrines such as agency, novation, assignment, operation of law, and merger. Doctrines such as piercing the corporate veil, equitable estoppel, and the group of companies doctrine have been expressly rejected. In Peterson Farms Inc. v. C & M Farming Limited, the Commercial Court held that, although the arbitral tribunal applied the group of companies doctrine, English law, being similar to Arkansas law, excludes its application. English precedent on the phrase claiming through or under includes Roussel‑Uclaf v. G.D. Searle and Co Ltd, where a wholly owned subsidiary was held to claim through the parent, and City of London v. Sancheti, which overturned that view, stating that a legal or commercial connection alone is insufficient., The Federal Arbitration Act of the United States is silent on joinder of non‑signatory parties, but United States courts have employed contract law principles such as incorporation by reference, assumption, agency, veil piercing, alter ego, and estoppel to bind non‑signatories. In G.E. Energy Power Conversion France SAS v. Outokumpu Stainless, the United States Supreme Court considered whether the New York Convention precludes a non‑signatory from compelling arbitration by invoking domestic doctrines such as equitable estoppel. The Eleventh Circuit refused to apply equitable estoppel, citing the Convention’s strict signature requirement, but the Supreme Court held that Article II does not prevent contracting states from applying domestic law to refer parties to arbitration agreements and that domestic doctrines may fill gaps in the Convention. Unlike English courts, United States courts have used non‑consensual doctrines, including veil piercing and arbitral estoppel, to extend arbitration agreements to non‑signatories, particularly where the non‑signatory received a direct benefit from the contract or where there is a substantial interdependent relationship between the signatory and non‑signatory.
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id_1445
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In a situation where claims American Fuel Corp v. Utah Energy Development Co, Inc, 122 F.3d 130, 134 (2d Cir 1997); American Bureau, Shipping v. Tencara Shipyard, 170 F.3d 349, 353 (2d Cir 1999); Sunkist Soft Drinks, Inc v. Sunkist Growers, Inc, 10 F.3d 753, 757 (11th Cir 1993) of concerted misconduct were raised against both the signatory and nonsignatory to the contract, the courts have resorted to the doctrine of equitable estoppel to further the policy of pro‑arbitration. The above discussion shows that international jurisdictions, in some form or the other, have moved beyond the formalistic requirement of consent to bind a nonsignatory to an arbitration agreement. The primary conclusion is that the issue of binding a nonsignatory to an arbitration agreement is more of a fact‑specific aspect. In jurisdictions such as France and Switzerland, there is a broad consensus that consent or subjective intention of a nonsignatory to arbitrate may be proved by conduct. Such subjective intention could be derived from the objective evidence in the form of participation of the nonsignatory in the negotiation, performance, or termination of the underlying contract containing the arbitration agreement. However, the group of companies doctrine has not been universally accepted by all jurisdictions. In jurisdictions such as France where the doctrine has gained acceptance, group of companies is one of the several factors that a court or tribunal considers to determine the mutual intention of all the parties to join the nonsignatory to the arbitration agreement. Keeping in mind the above background, we now move on to analyze the applicability of the group of companies doctrine in the Indian context., Arbitration is an alternative dispute resolution mechanism where parties consensually decide to submit a dispute between them to an arbitral tribunal to the exclusion of domestic courts. Arbitration provides a neutral, efficient, and expert process for dispute resolution at a single forum whose decision is final and binding on the parties. The principle of party autonomy underpins the arbitration process as it allows the parties to dispense with technical formalities and agree upon substantive and procedural laws and rules applicable to the merits of the dispute. Party autonomy allows the parties to choose the seat of arbitration, number of arbitrators, procedure for appointment of arbitrators, rules governing the arbitral procedure, and the institution which will administer the arbitration. An arbitration proceeding is broadly divided into two stages: the first stage commences with an arbitration agreement and ends with the making of an arbitral award; the second stage pertains to the enforcement of the arbitral award., Consent forms the cornerstone of arbitration. An arbitration agreement records the consent of the parties to submit their disputes to arbitration. A two‑judge bench of the Supreme Court of India in Bihar State Mineral Development Corporation v. Encon Builders (I) Pvt. Ltd. laid down four essential elements of an arbitration agreement: (i) there must be a present or a future difference in connection with some contemplated affair; (ii) the parties must intend to settle such difference by a private tribunal; (iii) the parties must agree in writing to be bound by the decision of such tribunal; (iv) the parties must be ad idem., An arbitration agreement is a contractual undertaking by two or more parties to resolve their disputes by the process of arbitration, even if the disputes themselves are not based on contractual obligations. An arbitration agreement is a conclusive proof that the parties have consented to submit their dispute to an arbitral tribunal to the exclusion of domestic courts. The basis for an arbitration agreement is generally traced to the contractual freedom of parties to codify their intention to consensually submit their disputes to an alternative dispute resolution process., According to Section 10 of the Code of Civil Procedure, 1908, the courts have jurisdiction to try all suits of a civil nature except suits whose cognizance is expressly or impliedly barred. The provision gives a right to any person to file a civil suit before a court of competent jurisdiction. Moreover, Section 28 of the Indian Contract Act, 1872 provides that any agreement restraining a party from enforcing their rights under a contract before courts or tribunals is void to that extent. However, the provision specifically saves a contract by which two or more persons agree that any dispute which may arise between them, in respect of any subject or class of subjects, shall be referred to arbitration. Thus, arbitration agreements are granted a statutory exception under Section 28 of the Contract Act. In Dhulabhai v. State of Madhya Pradesh a Constitution Bench of the Supreme Court of India held that the jurisdiction of civil courts may be excluded by an express provision of law or by clear intendment arising from such law. In Chloro Controls (supra), the Supreme Court of India observed that Section 45 of the Arbitration Act shall prevail over the provisions of the Code of Civil Procedure, 1908 in case of a valid arbitration agreement. Considering the fact that an arbitration agreement excludes the jurisdiction of civil courts, such an agreement ought to be valid and enforceable., An arbitration agreement must satisfy the principles of contract law laid down under the Contract Act, in addition to satisfying other requirements stipulated under Section 7 of the Arbitration Act, to qualify as a valid agreement. Section 2(e) of the Contract Act defines an agreement as every promise and every set of promises forming the consideration for each other. An agreement enforceable by law is a contract. An agreement should satisfy the mandate of Section 10 of the Contract Act to be enforceable by law. Section 10 provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object. According to Section 13, two or more persons are said to consent when they agree upon the same thing in the same sense. Thus, consensus ad idem between the parties forms the essential basis to constitute a valid arbitration agreement., Being a creature of a contract, an arbitration agreement is also bound by the general principles of contract law, including the doctrine of privity. The doctrine of privity means that a contract cannot confer rights or impose liabilities on any person except the parties to the contract. This doctrine has two aspects: first, only the parties to the contract are entitled under it or bound by it; and second, the parties to the contract cannot impose a liability on a third party. As a corollary, a third party cannot acquire rights and entitlements under a contract. In M C Chacko v. State Bank of Travancore, the Supreme Court of India held it as a settled principle of law that a person who is not party to a contract cannot enforce the terms of the contract, subject to certain well‑recognised exceptions such as trust, family arrangement, and assignment. The principle that only the parties to an arbitration agreement are either bound or benefited by such an agreement is fundamental to arbitration. This principle is uniformly reflected in international arbitration conventions as well as the Arbitration Act. For instance, Section 7 of the UNCITRAL Model Law defines an arbitration agreement as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not., It is a generally accepted legal proposition that arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which they have not agreed so to submit. Since consent forms the cornerstone of arbitration, a nonsignatory cannot be forcibly made a party to an arbitration agreement as doing so would violate the sacrosanct principles of privity of contract and party autonomy. However, in case of multi‑party contracts, the courts and tribunals are often called upon to determine the parties to an arbitration agreement., The general method to figure out the parties to an arbitration agreement is to look for the entities who are named in the recitals and have signed the agreement. The signature of a party on the agreement is the most profound expression of the consent of a person or entity to submit to the jurisdiction of an arbitral tribunal. However, the corollary that persons or entities who have not signed the agreement are not bound by it may not always be correct. A written contract does not necessarily require that parties put their signatures to the document embodying the terms of the agreement. Therefore, the term nonsignatories, instead of the traditional third parties, seems the most suitable to describe situations where consent to arbitration is expressed through means other than signature. A nonsignatory is a person or entity that is implicated in a dispute which is the subject matter of an arbitration, although it has not formally entered into an arbitration agreement. The important determination is whether such a nonsignatory intended to effect legal relations with the signatory parties and be bound by the arbitration agreement. There may arise situations where persons or entities who have not formally signed the arbitration agreement or the underlying contract containing the arbitration agreement may intend to be bound by the terms of the agreement. In other words, the issue of who is a party to an arbitration agreement is primarily an issue of consent., Section 2 of the Contract Act provides that when a person signifies their willingness to do or to abstain from doing anything, with a view to obtaining the assent of the other to such act or abstinence, it is said to make a proposal. The proposal is said to be accepted when the person to whom the proposal is made signifies their assent. A proposal becomes a promise upon acceptance. Every promise and every set of promises, forming the consideration for each other, is an agreement. Importantly, Section 9 provides that a promise is said to be express if the proposal or acceptance of any promise is made in words, while a promise is said to be implied if such proposal or acceptance is made otherwise than in words. Thus, a contract may either be express or implied., Chitty on Contracts explains the difference between express and implied contracts as follows: contracts may either be express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is permitted to board a bus: from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination. Express and implied contracts are both contracts in the true sense of the term, for they both arise from the agreement of the parties, though in one case the agreement is manifested in words and in the other case by conduct. Since agreement is not a mental state but an act, an inference from conduct, and since many of the terms of an express contract are often implied, the distinction between express and implied contracts has little importance., The above exposition gives rise to the inference that in case of an implied contract, the question revolves around the determination of the consent of the parties to be bound by the terms of the contract. Such determination is manifested through the acts or conduct. The theory of implied contract by conduct has also been accepted by the Supreme Court of India. In Haji Mohammed Ishaq v. Mohamad Iqbal, the plaintiff supplied tobacco to the defendant. Although there was no express agreement between the parties, the defendant accepted the goods but allegedly failed to clear the outstanding dues despite repeated demands raised by the plaintiff. A bench of three judges of the Supreme Court of India observed that the conduct of the defendants in accepting the goods and not repudiating any of the demand letters raised by the plaintiff clearly showed that a direct contract, which in law is called an implied contract by conduct, was brought about between them. Under Indian contract law, actions or conduct can be an indicator of consent of a party to be bound by a contract. This also applies to an arbitration agreement considering the fact that it is a creature of contract. However, an arbitration agreement also has to meet the requirements laid down under the Arbitration Act to be valid and enforceable., Section 2(h) of the Arbitration Act defines a party to mean a party to an arbitration agreement. Section 7 defines an arbitration agreement to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship. Section 7 requires that an arbitration agreement be in writing. Such an agreement may be embodied in a document, an exchange of communications, including in electronic form, or in a statement of claim which is not traversed in the defence. In Vidya Drolia v. Durga Trading Corporation, the Supreme Court of India observed that a legal relationship means a relationship which gives rise to legal obligations and duties, and confers a right. Such a right may be contractual or non‑contractual. In case of a non‑contractual legal relationship, the cause of action arises in tort, restitution, breach of statutory duty, or some other non‑contractual cause of action. Thus, the legislative intent underlying Section 7 suggests that any legal relationship, including relationships where there is no contract between the persons or entities but whose actions or conduct have given rise to a relationship, could form a subject matter of an arbitration agreement under Section 7. This approach is in line with the observations of Lord Hoffman in Fiona Trust and Holding Company v. Privalov where it was observed that the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal., Section 7(3) requires an arbitration agreement to be in writing. Section 7(4) lays down three circumstances to elaborate when an arbitration agreement can be said to be in writing. According to the first circumstance laid down under Section 7(4)(a), an arbitration agreement is in writing if it is signed by the parties. This circumstance refers to a situation where the parties have formally executed and expressly assumed the status of parties by attesting their signatures to the arbitration agreement or the underlying contract containing the arbitration agreement. In such situations, the courts or tribunals only need to refer to the signature page or the recitals to figure out the parties to the arbitration agreement., Section 7(4)(b) provides the second circumstance, according to which an arbitration agreement is in writing if it is contained in an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement. According to this provision, the existence of an arbitration agreement can be inferred from various documents duly approved by the parties. Section 7(4)(b) dispenses with the conventional sense of an agreement as a document with signatories. Rather, it emphasizes the manifestation of the consent of persons or entities through their actions of exchanging documents. However, the important aspect of the provision lies in the fact that the parties should be able to record their agreement through a documentary record of evidence. In Great Offshore Ltd. v. Iranian Offshore Engineering and Construction Company, the Supreme Court of India observed that Section 7(4)(b) requires the court to ask whether a record of agreement is found in the exchange of letters, telex, telegrams, or other means of telecommunication., The third circumstance is provided under Section 7(4)(c), according to which an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. A two‑judge bench of the Supreme Court of India clarified in S N Prasad v. Monnet Finance Limited that there will be an exchange of statements of claim and defence for the purposes of Section 7(4)(c) if there is an assertion of the existence of an arbitration agreement in any suit, petition or application filed before any court or tribunal, and if there is no denial of it in the defence, counter‑claim, or written statement. Thus, in the third circumstance the court proceeds on the assumption that the conduct of the person or entity in not denying the existence of an arbitration agreement leads to the conclusive proof of its existence. All three circumstances contained in Section 7(4) are geared towards determining the mutual intention of the parties to be bound by the arbitration agreement., Section 7 of the Arbitration Act contains two aspects: a substantive aspect and a formal aspect. The substantive aspect is contained in Section 7(1) which allows parties to submit disputes arising between them in respect of a defined legal relationship to arbitration. The legal relationships between and among parties could either be contractual or non‑contractual. For legal relations to be contractual in nature, they must meet the requirements of the Indian contract law as contained in the Contract Act. It has been shown that a contract can either be express or implied, which is inferred on the basis of the action or conduct of the parties. Thus, it is not necessary for the persons or entities to be signatories to a contract to enter into a legal relationship; the only important aspect to be determined is whether they intended or consented to enter into the legal relationship by the dint of their action or conduct., The second aspect is contained in Section 7(3) which stipulates the requirement of a written arbitration agreement. A written arbitration agreement need not be signed by the parties if there is a record of agreement. The mandatory requirement of a written arbitration agreement is merely to ensure that there is a clearly established record of the consent of the parties to refer their disputes to arbitration to the exclusion of the domestic courts., Section 2(h) read with Section 7 does not expressly require the party to be a signatory to an arbitration agreement or the underlying contract containing the arbitration agreement. This interpretation is in line with the general trend in national and international legislations that a signature is not necessary for an arbitration agreement. The UNCITRAL Model Law as amended in 2006 lays down the writing requirement for an arbitration agreement under Article 7 in the following terms: (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. The provision states that an arbitration agreement may be entered into in any form, for example orally or tacitly, as long as the content of the agreement is recorded. It eliminates the requirement of the signature of parties or an exchange of messages between the parties., Article II paragraph 2 of the New York Convention defines agreement in writing to include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. Article 7 of the UNCITRAL Model Law establishes a more favourable requirement for a written arbitration agreement. In 2006, UNCITRAL recommended that the circumstances described in Article II paragraph 2 of the New York Convention be applied, recognizing that the circumstances described therein are not exhaustive. Additionally, it recommended that Article 7 paragraph 1 of the UNCITRAL Model Law should be applied to allow any interested party to avail itself of rights it may have, under the law or treaties of the country where an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an arbitration agreement. The Arbitration Act is largely based on the UNCITRAL Model Law. Therefore, the UNCITRAL Model Law could be referred to while construing the provisions of the Arbitration Act. Although the amended Section 7 of the UNCITRAL Model Law has not been adopted in Indian law, it reflects the modern commercial reality where substance is given precedence over technical legal formalities., Reading Section 7 of the Arbitration Act in view of the above discussion gives rise to the following conclusions: first, arbitration agreements arise out of a legal relationship between or among persons or entities which may be contractual or otherwise; second, in situations where the legal relationship is contractual in nature, the nature of the relationship can be determined on the basis of general contract law principles; third, it is not necessary for the persons or entities to be signatories to the arbitration agreement to be bound by it; fourth, in case of nonsignatory parties, the important determination for the courts is whether the persons or entities intended or consented to be bound by the arbitration agreement or the underlying contract containing the arbitration agreement through their acts or conduct; fifth, the requirement of a written arbitration agreement has to be adhered to strictly, but the form in which such agreement is recorded is irrelevant; sixth, the requirement of a written arbitration agreement does not exclude the possibility of binding nonsignatory parties if there is a defined legal relationship between the signatory and nonsignatory parties; and seventh, once the validity of an arbitration agreement is established, the court or tribunal can determine the issue of which parties are bound by such agreement., It is presumed that the formal signatories to an arbitration agreement are parties who will be bound by it. However, in exceptional cases persons or entities who have not signed or formally assented to a written arbitration agreement or the underlying contract containing the arbitration agreement may be held to be bound by such agreement. As mentioned in the preceding paragraphs, the doctrine of privity limits the imposition of rights and liabilities on third parties to a contract. Generally, only the parties to an arbitration agreement can be subject to the full effects of the agreement in terms of the reliefs and remedies because they consented to be bound by the arbitration agreement. Therefore, the decisive question before the Supreme Court of India or tribunals is whether a nonsignatory consented to be bound by the arbitration agreement. To determine whether a nonsignatory is bound by an arbitration agreement, the courts and tribunals apply typical principles of contract law and corporate law. The legal doctrines provide a framework for evaluating the specific contractual language and the factual settings to determine the intentions of the parties to be bound by the arbitration agreement., Gary Born suggests that the legal theories and doctrines provide a basis for determining the real intent of parties to be bound by an arbitration agreement., Therefore, it is incorrect to use terminologies such as extension of an arbitration agreement to nonsignatories or third parties. Judicial case law and commentary on international arbitration sometimes make reference to the extension of an arbitration agreement to nonsignatories, or to third parties, on the basis of one or more of the foregoing theories. These expressions are inaccurate, in that they imply that an entity which is not a party to an arbitration agreement is nonetheless subject to that agreement’s effects by virtue of something other than the parties’ consent. Contrary to the references to extension or third parties, most of the theories provide a basis for concluding that an entity is in reality a party to the arbitration agreement, which therefore does not need to be extended to a third party because that party’s actions constitute consent to the agreement, or otherwise bind it to the agreement, notwithstanding the lack of its formal execution of the agreement. The arbitration agreement is therefore not ordinarily extended, but rather the true parties that have consented to the arbitration agreement are identified., Courts and tribunals across the world have been applying traditional contractual and commercial doctrines to determine the consent of nonsignatory parties to be bound by the arbitration agreement. Generally, consent‑based theories such as agency, novation, assignment, operation of law, merger and succession, and third‑party beneficiaries have been applied in different jurisdictions. In exceptional circumstances, non‑consensual theories such as piercing the corporate veil or alter ego and estoppel have also been applied to bind a nonsignatory party to an arbitration agreement. The group of companies doctrine is one such consent‑based doctrine which has been applied, albeit controversially, for identifying the real intention of the parties to bind a nonsignatory to an arbitration agreement., The phenomenon of group companies is the modern reality of economic life and business organisation. Group companies are a set of separate firms linked together in formal or informal structures under the control of a parent company. The group companies can be defined in the Indian context as an agglomeration of privately held and publicly traded firms operating in different lines of business, each incorporated as a separate legal entity, but collectively under the entrepreneurial, financial, and strategic control of a common authority, typically a family, and linked by trust‑based relationships forged around a similar persona, ethnicity, or community. Group companies involving the parent and subsidiary companies are created for myriad purposes such as limiting the liability of the parent corporation, facilitating international trade, entering into business ventures with investors, establishing domestic corporate residence, and avoiding tax liability., The principle of separate legal personality has been the cornerstone of corporate law. In Salomon v. Salomon, the House of Lords famously observed that a company is at law a different person altogether from the promoters, directors, shareholders, and employees. The principle of separate legal personality equally applies to corporate groups. A parent company is not generally held to be liable for the actions of the subsidiary company of which it is a direct or indirect shareholder. The Companies Act, 2013 has statutorily recognized a subsidiary company as a separate legal entity. Section 2(46) of the 2013 Act defines a holding company as a company of which one or more other companies are subsidiary companies.
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Section 2(87) defines a subsidiary company as a company in which the holding company exercises control over the composition of the Board of Directors and has a controlling interest of at least 50 percent of the voting rights. Although a holding company owns a controlling interest in the subsidiary, they are considered separate legal entities. Group company structures allow multinational corporations to organise their business at both the national and international level to leverage better returns for investors and ensure business growth of the corporation., A Bench of three Judges of the Supreme Court of India in Vodafone International Holding BV v. Union of India emphasized the principles of corporate separateness in the following terms: a company is a separate legal persona and the fact that all its shares are owned by one person or by the parent has nothing to do with its separate legal existence. If the owned company is wound up, the liquidator and its parent company would not automatically acquire the assets of the subsidiary. In none of the authorities have the assets of the subsidiary been held to be those of the parent unless the subsidiary is acting as an agent. Thus, although a subsidiary may normally comply with the request of a parent company it is not merely a puppet of the parent., The separateness of corporate personality will be ignored by courts in exceptional situations where a company is used as a means by the members and shareholders to carry out fraud or evade tax liabilities. If the Supreme Court of India, on the basis of factual evidence, determines that the company was acting as an agent of the members or shareholders, it will ignore the separate personality of the company to attribute liability to the individuals. In Balwant Rai Saluja v. Air India, the Court held that the principle of distinct legal personality may be ignored where the associate companies are inextricably connected as to be, in reality, part of one concern., In Tata Engineering and Locomotive Co Ltd v. State of Bihar, a Constitution Bench of the Supreme Court of India considered whether a company could be treated as a citizen for the purposes of maintaining a writ petition under Article 32 of the Constitution. The Court held that the corporate veil can be lifted where fraud is intended to be prevented or trading with an enemy is sought to be defeated., In cases of group companies, a holding company may completely dominate the affairs of the subsidiary to the extent of misusing its control to avoid or conceal liability. In such situations, the courts apply the doctrine of alter ego or piercing the corporate veil to disregard corporate separateness and treat the two companies as a single entity. In LIC v. Escorts Ltd, a Constitution Bench of the Supreme Court of India noted that the principle of distinct legal personality may be ignored where the associate companies are inextricably connected as to be, in reality, part of one concern., The application of the doctrine of lifting the corporate veil rests on the overriding considerations of justice and equity. The Supreme Court of India has cautioned that the principle of piercing the corporate veil should be applied restrictively and only where it is evident that the subsidiary was a mere camouflage deliberately created by the holding company for the purpose of avoiding liability. The intent of piercing the veil must be to remedy a wrong done by the holding company. In arbitration, the principle has been sparingly used because it may disregard the parties’ intention and the overriding considerations of good faith and equity that bind non‑signatories to an arbitration agreement., Since companies in a group have separate legal personality, the presence of common shareholders or directors does not lead to the conclusion that the subsidiary will be bound by the acts of the holding company. Statements or representations made by promoters or directors in their personal capacity do not bind a company. Similarly, the mere fact that two companies have common shareholders or a common Board of Directors is not sufficient to conclude that they are a single economic entity. In D H N Food Distributors Ltd v. Tower Hamlets London Borough Council, Lord Denning held that a group of three companies should be treated as a single economic entity where the parent owned all the shares of the subsidiaries and the three companies virtually acted as partners., From the above discussion, it follows that entities within a corporate group have separate legal personality, which cannot be ignored except in exceptional circumstances such as fraud. The distinction between a parent company and its subsidiary is fundamental and cannot be abridged merely for economic convenience. Legally, the rights and liabilities of a parent company cannot be transferred to the subsidiary, and vice‑versa, unless there is a strong legal basis for doing so., In the context of arbitration law, the intention of the parties must be derived from the words used in the arbitration agreement. While construing the agreement, the Supreme Court of India does not delve into the intricacies of the human mind but considers only the expressed intentions of the parties, reflected in the commercial understanding embodied in the contract and the surrounding circumstances., An arbitration agreement encapsulates the commercial understanding of business entities regarding the mode and manner of settlement of disputes that may arise between them. Although the language of the contract is suggestive of the signatories’ intention, a non‑signatory may appear to be a party to the arbitration agreement because of a legal relationship with the signatories and involvement in the performance of the underlying contract. This situation often arises in complex transactions involving multiple parties and contracts, where a non‑signatory is substantially involved in negotiation or performance without formally consenting to be bound by the arbitration clause., Modern commercial reality shows that a company which has signed a contract containing an arbitration clause is not always the one that negotiates or performs the underlying obligations. Emphasis on formal consent may exclude such non‑signatories from the arbitration agreement, leading to multiplicity of proceedings and fragmentation of disputes. In A. Ayyasamy v. A. Paramsivam, the Supreme Court of India observed that courts must give effect to the commercial understanding and interpret contracts in a manner that gives them business efficacy rather than invalidating the parties’ commercial interests through a narrow, pedantic approach., Professor Bernard Hanotiau suggests that a modern approach to consent should be more pragmatic, focusing on factual analysis, commercial practice, economic reality, trade usages, and the complex dimensions of large projects involving groups of companies. This approach is no longer restricted to express consent but also considers the conduct of the individuals or companies concerned., In Roop Kumar v. Mohan Thedani, the Supreme Court of India held that where a written arbitration agreement clearly sets out the parties to it, courts or tribunals cannot read into the agreement an intention to bind persons or entities other than the signatory parties. Written instruments are regarded as the repositories of truth, and other evidence is excluded from being used to contradict or alter them., Arbitration law is an autonomous legal field. While corporate law and contract law aim at imputing substantive legal liability, the purpose of arbitration law is to determine whether an arbitral tribunal has jurisdiction over the dispute arising between parties to an arbitration agreement. Courts and tribunals cannot lightly disregard the parties’ decision not to make a person or entity a party to the arbitration agreement, yet they must also avoid a rigid approach that excludes persons who, through their conduct and relationship with the signatories, intended to be bound by the underlying contract containing the arbitration clause., The group of companies doctrine is a fact‑based doctrine used to bind a non‑signatory company within a corporate group to an arbitration agreement signed by another member of the group. Although every company in a group has separate legal personality, the doctrine allows a non‑signatory to be bound where the factual circumstances show a common intention to be bound, without disturbing the legal personality of the entity., Academic debate exists on the doctrine. Professor Bernard Hanotiau argues that the doctrine should be discarded because it has been used as a shortcut to avoid legal reasoning, although he concedes that the existence of a corporate group may be a relevant factual element to determine whether a non‑signatory’s conduct amounts to consent. The opposing view holds that the doctrine is integral to arbitration law, as specific patterns of corporate structure can indicate the parties’ common intention to bind the non‑signatory, and it helps courts go beyond objective intentions to determine dynamic subjective intentions., The doctrine was developed by international arbitral tribunals specifically for arbitration and is not generally applied in other areas of law. While the existence of a corporate group is a necessary condition, it is not sufficient. Courts must determine (i) the existence of a group of companies and (ii) the conduct of the signatory and non‑signatory parties that indicates a common intention to bind the non‑signatory to the arbitration agreement., In Chloro Controls, the Supreme Court of India laid down four factual indices to consider when deciding whether a non‑signatory should be bound by an arbitration agreement: (a) the existence of a corporate group, (b) the nature of the transactions as a composite transaction, (c) the direct relationship of the non‑signatory to the signatory, and (d) whether applying the doctrine would serve the ends of justice. The Court emphasized that intention of the parties is a significant feature that must be established before extending the scope of arbitration to a non‑signatory., Justice Surya Kant, in Cox and Kings, noted an apparent inconsistency between the emphasis on mutual intent (paragraph 72) and the allowance for joinder of non‑signatories without prior formal consent (paragraph 73). The clarification is that “without prior consent” refers to the absence of formal written consent to the arbitration agreement, not to the absence of any intention to be bound. The two paragraphs are therefore harmonious: paragraph 72 focuses on determining intention, while paragraph 73 outlines the tests for joining a non‑signatory who has not formally consented., In Discovery Enterprises, the Supreme Court of India identified cumulative factors to decide whether a non‑signatory company within a group is bound by an arbitration agreement: (i) the existence of a corporate group, (ii) the extent of the non‑signatory’s participation in the conclusion, performance or termination of the underlying contract, (iii) the degree of control exercised by the signatory over the non‑signatory, (iv) the presence of a common commercial purpose, and (v) whether treating the non‑signatory as a party would avoid multiplicity of proceedings and serve the ends of justice., The determination of mutual intention in multi‑party agreements requires the court or tribunal to examine the corporate structure in accordance with company law principles, establish the existence of a corporate group, and then assess whether all parties intended to bind the non‑signatory to the arbitration agreement. The group of companies doctrine concerns only the parties to the arbitration agreement, not the underlying commercial contract, and membership in a group alone is insufficient to create liability., Thus, the group of companies doctrine is applied as a factual analysis tool to identify the common intention of the parties to bind a non‑signatory to an arbitration agreement, without piercing the corporate veil or disregarding the legal personality of the entity. It adds an extra layer of criteria to the consent analysis in complex transactions involving multiple parties and agreements, ensuring that arbitration remains an effective mechanism for dispute resolution.
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The mutual intent of the parties; the relationship of a non-signatory to a party which is a signatory to the agreement; the commonality of the subject-matter; the composite nature of the transactions; and the performance of the contract. Since the group of companies doctrine is a consent based theory, its application depends upon the consideration of a variety of factual elements to establish the mutual intention of all the parties involved. In other words, the group of companies doctrine is a means to infer the mutual intentions of both the signatory and non-signatory parties to be bound by the arbitration agreement. The relationship between and among the legal entities within the corporate group structure and the involvement of the parties in the performance of the underlying contractual obligations are indicators to determine the mutual intentions of the parties. The other factors such as the commonality of the subject matter, composite nature of the transactions, and the performance of the contract ought to be cumulatively considered and analysed by courts and tribunals to identify the intention of the parties to bind the non-signatory party to the arbitration agreement. The party seeking joinder of a non-signatory bears the burden of proof of satisfying the above factors to the satisfaction of the Supreme Court of India or tribunal, as the case may be., Section 7 of the Arbitration Act broadly talks about an agreement by the parties in respect of a defined legal relationship, whether contractual or not. Such a legal relationship must give rise to legal obligations and duties. In a corporate group, a company may have various related companies. The legal relationship must be analysed in the context of the underlying contract containing the arbitration agreement. The nature of the contractual relationship can either be formally encrusted in the underlying contract, or it can also be inferred from the conduct of the signatory and non-signatory parties with respect to such contract. However, we clarify that mere presence of a commercial relationship between the signatory and non-signatory parties is not sufficient to infer legal relationship between and among the parties. If this factor is applied solely, any related entity or company may be impleaded even when it does not have any rights or obligations under the underlying contract and did not take part in the performance of the contract. The group of companies doctrine cannot be applied to abrogate party consent and autonomy. The doctrine, properly conceptualised and applied, gives effect to mutual intent and autonomy., In Canara Bank (supra), the Supreme Court of India observed that the group of companies doctrine can also be invoked in cases where a tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality. In Cox and Kings (supra), Justice Surya Kant observed that applying this approach has the tendency to overlook the principle of corporate separateness and dispense with the consent of the parties. There is weight in the caution expressed by Justice Surya Kant. The presence of commercial relationships between a party and a non-signatory cannot be the sole criteria to bind non-signatory parties to the arbitration agreement. Adopting such an approach would bind all the non-signatories within a corporate group, even though they are not related to the contractual obligations under consideration, to the arbitration agreement. Consequently, such an approach will lead to the violation of the basic legal tenet of arbitration the necessity of consent, either express or implied, to be bound by an arbitration agreement. Moreover, the imposition of liability on a non-signatory company within a group for the acts of other members of the group merely on the basis of the fact that they belong to a single economic unit will ride roughshod over the principle of distinct corporate personality. The objective of the group of companies doctrine is to identify the mutual intentions of the parties without disregarding the legal personality of the entities., In Dow Chemicals (supra), it was held that a group of companies constitutes the same economic reality, which has to be considered by the arbitral tribunal while deciding on its jurisdiction. According to the tribunal, the presence of the group of companies is merely an additional factor that the tribunal may consider to determine the mutual intention of the parties. In Canara Bank (supra), the Supreme Court of India did not apply the group of companies doctrine solely on the basis that the companies belonged to a single economic unit. Rather, it was held that there was an implied or tacit consent by the non-signatory party (CANFINA) to being impleaded in the arbitral proceedings. The presence of strong organisational links and financial links between the signatory and non-signatory parties is only one of the factual elements that the court or tribunal may consider to determine the legal relationship between the signatory and non-signatory parties. We accordingly clarify that the principle of single economic entity cannot be used as a sole basis to invoke the group of companies doctrine., In case of multiple parties, the necessity of a common subject-matter and composite transaction is an important factual indicator. An arbitration agreement arises out of a defined legal relationship between the parties with respect to a particular subject matter. Commonality of the subject matter indicates that the conduct of the non-signatory party must be related to the subject matter of the arbitration agreement. For instance, if the subject matter of the contract underlying the arbitration agreement pertains to distribution of healthcare goods, the conduct of the non-signatory party should also be connected or in pursuance of the contractual duties and obligations, that is, pertaining to the distribution of healthcare goods. The determination of this factor is important to demonstrate that the non-signatory party consented to arbitrate with respect to the particular subject matter., In case of a composite transaction involving multiple agreements, it would be incumbent for the courts and tribunals to assess whether the agreements are consequential or in the nature of a follow-up to the principal agreement. This Supreme Court of India in Canara Bank (supra) observed that a composite transaction refers to a situation where the transaction is interlinked in nature or where the performance of the principal agreement may not be feasible without the aid, execution, and performance of the supplementary or ancillary agreements., The general position of law is that parties will be referred to arbitration under the principal agreement if there is a situation where there are disputes and differences in connection with the main agreement and also disputes connected with the subject-matter of the principal agreement. In Chloro Controls (supra), the Supreme Court of India clarified that the principle of composite performance would have to be gathered from the conjoint reading of the principal and supplementary agreements on the one hand, and the explicit intention of the parties and attendant circumstances on the other. The common participation in the commercial project by the signatory and non-signatory parties for the purposes of achieving a common purpose could be an indicator of the fact that all the parties intended the non-signatory party to be bound by the arbitration agreement. Thus, the application of the group of companies doctrine in case of composite transactions ensures accountability of all parties who have materially participated in the negotiation and performance of the transaction and by doing so have evinced a mutual intent to be bound by the agreement to arbitrate., The participation of the non-signatory in the performance of the underlying contract is the most important factor to be considered by the courts and tribunals. The conduct of the non-signatory parties is an indicator of the intention of the non-signatory to be bound by the arbitration agreement. The intention of the parties to be bound by an arbitration agreement can be gauged from the circumstances that surround the participation of the non-signatory party in the negotiation, performance, and termination of the underlying contract containing such agreement. The UNIDROIT Principles of International Commercial Contracts, 2016 provides that the subjective intention of the parties could be ascertained by having regard to the following circumstances: (a) preliminary negotiations between the parties; (b) practices which the parties have established between themselves; (c) the conduct of the parties subsequent to the conclusion of the contract; (d) the nature and purpose of the contract; (e) the meaning commonly given to terms and expressions in the trade concerned; and (f) usages., In Dow Chemicals (supra), consent of the non-signatory parties to arbitrate was implied primarily in view of their predominant participation in the conclusion, performance, and termination of contracts. Similarly, this Supreme Court of India in Canara Bank (supra) observed that a non-signatory entity may be bound by an arbitration agreement where a parent or a member of the group of companies is a signatory to the arbitration agreement and the non-signatory entity of the group has been engaged in the negotiation or performance of the commercial contract., In Reckitt Benckiser (supra), the Supreme Court of India was called upon to determine whether the representation of a purported promoter of a non-signatory entity would bind it to the said representation. In that case, the applicant entered into an agreement with an Indian company for the supply of packing materials. During the stage of negotiation, the applicant circulated a draft of the agreement by email with the Indian company. This email was replied by one Mr Frederick Reynders, who the applicant claimed was the promoter of a Belgian sister company of the Indian company. The Belgian company was a non-signatory to the agreement. Yet, the applicant sought to implead the Belgian company on the basis that it had participated during the negotiations preceding the execution of the agreement. This Supreme Court of India refused to allow the joinder of the Belgian company to the arbitration agreement on the grounds that Mr Reynders was not the promoter of the Belgian company, and was therefore not acting in that capacity on behalf of the company and the applicant failed to discharge its burden to prove that the Belgian company consented to the arbitration agreement., Evaluating the involvement of the non-signatory party in the negotiation, performance, or termination of a contract is an important factor for a number of reasons. First, by being actively involved in the performance of a contract, a non-signatory may create an appearance that it is a veritable party to the contract containing the arbitration agreement; second, the conduct of the non-signatory may be in harmony with the conduct of the other members of the group, leading the other party to legitimately believe that the non-signatory was a veritable party to the contract; and third, the other party has legitimate reasons to rely on the appearance created by the non-signatory party so as to bind it to the arbitration agreement., In Cox and Kings (supra), Justice Surya Kant observed that Reckitt Benckiser (supra) fixed a higher threshold of evidence for the application of the group of companies doctrine as compared to earlier decisions of the Supreme Court of India. This Court's approach in Reckitt Benckiser (supra) is indicative of the fact that the mere presence of a group of companies is not the sole or determinative factor to bind a non-signatory to an arbitration agreement. Rather, the courts or tribunals should closely evaluate the overall conduct and involvement of the non-signatory party in the performance of the contract. The nature or standard of involvement of the non-signatory in the performance of the contract should be such that the non-signatory has actively assumed obligations or performance upon itself under the contract. In other words, the test is to determine whether the non-signatory has a positive, direct, and substantial involvement in the negotiation, performance, or termination of the contract. Mere incidental involvement in the negotiation or performance of the contract is not sufficient to infer the consent of the non-signatory to be bound by the underlying contract or its arbitration agreement. The burden is on the party seeking joinder of the non-signatory to the arbitration agreement to prove a conscious and deliberate conduct of involvement of the non-signatory based on objective evidence., An arbitration agreement is a distinct and separate agreement from the substantive commercial contract which contains the arbitration agreement. An arbitration agreement is independent of the other terms of the contract, to the extent that nullification of the contract will not lead to invalidation of the arbitration agreement. The concept of separability of the arbitration agreement from the underlying contract ensures that the intention of the parties to resolve the disputes through arbitration does not vanish merely because of a challenge to the legal validity of the underlying contract. To join a non-signatory to arbitration, the decisive question that has to be answered is whether a non-signatory consented to the arbitration agreement, as distinct from the underlying contract containing the arbitration agreement., Stavros Brekoulakis argues that the application of legal theories such as the group of companies doctrine rests on an assumption that an arbitration agreement requires less consent or less evidence of consent than the underlying contract containing the arbitration agreement. Brekoulakis further notes that the assumption that implied consent of a non-signatory to the underlying contract is sufficient to constitute consent to the arbitration agreement contained in such contract militates against the principle of separability of contracts., The non-signatory's participation in the negotiation, performance, or termination of the contract can give rise to the implied consent of it being bound by the contract. Brekoulakis rightly points out an anomalous situation where the legal theories such as the group of companies doctrine treat consent as a functional legal construct without actually determining the main question whether the arbitral tribunal has jurisdiction over the parties (and non-signatory parties) to resolve the disputes?, The involvement of a non-signatory in the negotiation, performance, or termination of the underlying contract could be an important indicator of the fact that such non-signatory accepted to be bound by the contract. However, transposition of such consent to an arbitration agreement is a legal fiction to accommodate commercial reality. The contemporary commercial reality suggests that different companies within a group often become involved in different stages of execution and performance of a contractual transaction. For instance, a non-signatory may merely participate in the performance of a contract to carry out a specific task or assist the parent company. Such incidental involvement in the contractual performance is insufficient to constitute consent to the underlying contract, let alone the arbitration agreement. Rather, it has been suggested that it should also be considered whether the commercial dispute sufficiently implicates the non-signatory party for the arbitral tribunal to exercise its jurisdiction. The emphasis on the scope of the jurisdiction of the arbitral tribunal with respect to the subject matter of the dispute between the signatory parties would ensure effective arbitration and prevent unnecessary fragmentation of disputes. It also adequately accounts for the lack of formal consent on behalf of the non-signatory to the arbitration agreement (and the ensuing procedural aspects such as the constitution of arbitral tribunal) by considering facts and circumstances, such as close relationship and composite transactions, which indicates that there was a mutual understanding or convergence among all the parties to treat non-signatory as parties to the arbitration agreement., We are of the opinion that there is a need to seek a balance between the consensual nature of arbitration and the modern commercial reality where a non-signatory becomes implicated in a commercial transaction in a number of different ways. Such a balance can be adequately achieved if the factors laid down under Discovery Enterprises (supra) are applied holistically. For instance, the involvement of the non-signatory in the performance of the underlying contract in a manner that suggests that it intended to be bound by the contract containing the arbitration agreement is an important aspect. Other factors such as the composite nature of transaction and commonality of subject matter would suggest that the claims against the non-signatory were strongly inter-linked with the subject matter of the tribunal's jurisdiction. Looking at the factors holistically, it could be inferred that the non-signatories, by virtue of their relationship with the signatory parties and active involvement in the performance of commercial obligations which are intricately linked to the subject matter, are not actually strangers to the dispute between the signatory parties., We hold that all the cumulative factors laid down in Discovery Enterprises (supra) must be considered while determining the applicability of the group of companies doctrine. However, the application of the above factors has to be fact-specific, and this Supreme Court of India cannot tie the hands of the courts or tribunals by laying down how much weightage they ought to give to the above factors. This approach ensures that a dogmatic emphasis on express consent is eschewed in favour of a modern approach to consent which focuses on the factual analysis, complexity of commercial projects, and thereby increases the relevance of arbitration in multi-party disputes. Moreover, it is also keeping in line with the objectives of the Arbitration Act which aims to make the Indian arbitration law more responsive to the contemporary requirements., F. The group of companies doctrine has independent existence., In Cox and Kings (supra), Chief Justice Ramana observed that Chloro Controls (supra), and the series of subsequent decisions, have not appropriately dealt with the scope and ambit of the phrase claiming through or under as appearing under Sections 8 and 45 of the Arbitration Act. Connectedly, one of the issues that arises for the consideration of the Supreme Court of India is whether the phrase claiming through or under could be interpreted to include the group of companies doctrine., The Arbitration Act does not define the phrase person claiming through or under a party. A person claiming through or under a party is not a signatory to the contract or agreement, but can assert a right through or under the signatory party. Russell on Arbitration states that an assignee can invoke the arbitration agreement as a person claiming through or under a party to the arbitration agreement. An assignee takes the assigned right under a contract with both the benefit and burden of the arbitration clause. Similarly, the English courts have held that a transferee or subrogate can claim through or under a party to the arbitration agreement. Under English law, the typical scenarios where a person or entity can claim through or under a party are assignment, subrogation, and novation. In these situations, the assignees or representatives become successors to the signatory party's interests under the arbitration agreement. They step into the shoes of the signatory party, from whom they derive the right to arbitrate, rather than claiming an independent right under the arbitration agreement., The scope of an arbitration agreement under English law is limited to the parties who entered into it and those claiming through or under them. In Roussel-Uclaf (supra), it was held that a subsidiary company can invoke the arbitration agreement on the basis that it is claiming through or under the parent company because of the close relationship between the two companies. However, Roussel-Uclaf (supra) was expressly overruled by the Court of Appeal in Sancheti (supra) on the ground that a mere legal or commercial connection is not sufficient for a person to claim through or under a party to an arbitration agreement., The scope of the phrase claiming through or under has been evaluated by other common law jurisdictions. In Tanning Research Laboratories Inc v. O'Brien, the issue before the High Court of Australia was whether a liquidator could be regarded as a person claiming through or under a party to an arbitration agreement. The High Court construed the words through or under to hold that the liquidator had a derivative interest through the company. The relevant observation is extracted below: [T]he prepositions through or under convey the notion of a derivative cause of action or ground of defence, that is, a cause of action or ground of defence derived from the party. In other words, an essential element of the cause of action or defence must be or must have been vested in or exercisable by the party before the person claiming through or under the party can rely on the cause of action or ground of defence. A liquidator may be a person claiming through or under a company because the causes of action or grounds of defence on which he relies are vested in or exercisable by the company; a trustee in bankruptcy may be such a person because the causes of action or grounds of defence on which he relies were vested in or exercisable by the bankrupt. The test of derivative action conveys that a third party's cause of action is derived from the original party to the arbitration agreement. The third party cannot be saddled with new duties and liabilities to which it has not consented. They can only be held liable or entitled to the extent they derive their rights or entitlements from the original party to the agreement., The above formulation was further clarified by the Australian High Court in Rinehart v. Hancock Prospecting Pty Ltd, where it observed that the ultimate test in Tanning Research (supra) was whether an essential element of the defence was or is vested in or exercisable by the party to the arbitration agreement. In Rinehart (supra), the Court was dealing with a situation where a signatory party had assigned mining tenements in breach of trust. It was held that assignees stand in the same position vis-à-vis the claimant as the assignor since the assignee took its stand upon a ground which was available to the assignor. The Court concluded that the assignees were persons claiming through or under the signatory parties on the basis that the parties to the arbitration agreement had agreed that any dispute as to the beneficial title to the mining tenements would be determined by arbitration. Since the third parties accepted the benefits of the agreement, it was held that they must also accept the burdens of its stipulated conditions, including arbitration., In Rinehart (supra), the Australian High Court's approach is similar to the doctrine of equitable estoppel developed by the US Courts, to the effect that a non-signatory party who elects to take the benefit of some aspects of the contract, must also accept the burden of it. However, we cannot adopt the Rinehart (supra) position in the context of the phrase claiming through or under as doing so would be contrary to the common law position and the legislative intent underpinning the Arbitration Act, as will be discussed below., An analysis of the cases cited above establishes the following propositions of law: first, the typical scenarios where a person or entity can claim through or under a party are assignment, subrogation, and novation; second, a person claiming through or under can assert a right in a derivative capacity, that is through the party to the arbitration agreement, to participate in the agreement; third, the persons claiming through or under do not possess an independent right to stand as parties to an arbitration agreement, but as successors to the signatory parties' interest; and fourth, mere legal or commercial connection is not sufficient for a non-signatory to claim through or under a signatory party., The 246th Law Commission suggested that the definition of party under section 2(1)(h) of the Arbitration Act be amended to include the words or any persons claiming through or under such party. The Commission reasoned that in appropriate contexts, a party also include persons claiming through or under a signatory party such as successors-in-interest. However, the suggested amendment was not carried out by Parliament., The word claim is of very extensive significance embracing every species of legal demand. In the ordinary sense, it means to demand as one's own or as one's right. A claim also means assertion of a cause of action. The expression through connotes by means of, in consequence of, by reason of. The term under is used with reference to an inferior or subordinate position. P Ramanatha Aiyar's Law Lexicon defines claiming under or claiming under him to denote a person putting forward a claim under derived rights. When the above definitions are read harmoniously, it gives rise to an inference that a person claiming through or under is asserting their legal demand or cause of action in an intermediate or derivative capacity. We can also conclude that a person claiming through or under has inferior or subordinate rights in comparison to the party from which it is deriving its claim or right. Therefore, a person claiming through or under cannot be a party to an arbitration agreement on its own terms because it only stands in the shoes of the original signatory party., An arbitration is founded upon the consent of the parties to refer their disputes to an alternative dispute resolution mechanism. Consequently, third parties typically cannot be compelled to arbitrate based on an agreement to which they have not consented. The phrase claiming through or under has not been used either in Section 2(1)(h) or Section 7 of the Arbitration Act. This is because those provisions are based on the concept of party autonomy and party independence, which requires the party to provide consent to submit their disputes to arbitration. On the contrary, a person claiming through or under a party to an arbitration agreement is merely standing in the shoes of the original party to the extent that it is merely agitating the right of the original party to the arbitration agreement., The phrase claiming through or under has been used in Sections 8, 35, and 45 in their specific contexts. Section 8 contains a mandate that when an action is brought before a judicial authority which is the subject of an arbitration agreement, the dispute shall be referred to arbitration on an application made by a party or any person claiming through or under him. As mentioned above, the phrase claiming through or under was inserted in Section 8 to bring it in line with Section 45. Sections 8 and 45 are peremptory in nature mandating the court to refer the parties to arbitration if there is a valid arbitration agreement. In A Ayyasamy (supra), it was held that Section 8 imposes an affirmative obligation on every judicial authority to hold down parties to the terms of the agreement entered into between them to refer disputes to arbitration., Section 35 of the Arbitration Act provides that an arbitral award shall be final and binding on the parties and persons claiming under them respectively. In Cheran Properties (supra), this Supreme Court of India rightly observed that the expression persons claiming under them is a legislative recognition of the doctrine that besides the parties, an arbitral award binds every person whose capacity or position is derived from and is the same as a party to the proceedings. It was further observed that having derived its capacity from a party and being in the same position as a party to the proceedings binds a person who claims under it.
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Similarly, Section 73 also provides that a settlement agreement signed by the parties shall be final and binding on the parties and persons claiming under them respectively. Sections 8, 35, and 45 use the phrase parties or any person claiming through or under. The word or is used in Section 8 and 45 as a disjunctive particle to express an alternative or give a choice between parties or any person claiming through or under. Consequently, either the party to an arbitration agreement or any person claiming through or under the party can make an application to the judicial authority to refer the dispute to arbitration. It is in the interest of respecting the intention of the parties and promoting commercial efficacy, that the above provisions allow either the party or any person claiming through or under him to refer the disputes to arbitration., On the other hand, Sections 35 and 73 use the phrase parties and persons claiming under them. The use of the word and in Sections 35 and 73 conveys the idea that parties is to be added or taken together with the subsequent phrase any person claiming through or under. The above provisions provide that an arbitration award binds not only the parties but also all such persons who derive their capacity from the party to the arbitration agreement. Again, the foundational basis for this provision is commercial efficacy as it ensures that an arbitral award leads to finality, such that both the parties and all persons claiming through or under them do not reiterate the claims. Moreover, the use of the word and in Sections 35 and 73 leads to an unmistakable conclusion that under the Arbitration Act, the concept of a party is distinct and different from the concept of persons claiming through or under a party to the arbitration agreement., The approach adopted by the Supreme Court of India in Chloro Controls is Incorrect. The Supreme Court of India in Chloro Controls (supra) observed: first, that the use of the expression any person reflects the legislative intent of enlarging the scope of the words beyond the parties who are signatory to the arbitration agreement; second, a signatory party to an arbitration agreement may have a legal relationship with the party claiming through or under the party on the basis of the group of companies doctrine; and third, in case of a multi‑party contract, a subsidiary company which derives its basic interest from the parent contract would be covered under the expression claiming through or under., The first proposition of law relies on the construction of the expression any person to conclude that the language of Section 45 has wider import. However, the expression any person cannot be singled out and construed devoid of its context. The context, in terms of Section 8 and 45, is provided by the subsequent phrase claiming through or under. Therefore, such persons are acting only in a derivative capacity. Since an arbitration agreement excludes the jurisdiction of national courts, it is essential that the parties consent, either expressly or impliedly, to submit their dispute to the arbitral tribunal., The second and third proposition of law states that a non‑signatory party may claim through or under a signatory party by virtue of its legal or commercial relationship with the latter. However, this proposition is contrary to the common law position as evidenced in Sancheti (supra) and Tanning Research Laboratories (supra) according to which a mere legal or commercial connection is not sufficient to allow a non‑signatory to claim through or under a party to the arbitration agreement. In A. Ayyasamy (supra), the Supreme Court of India observed that the Arbitration Act should be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Therefore, even though a subsidiary derives interests or benefits from a contract entered into by the company within a group, they would not be covered under the expression claiming through or under merely on the basis that it shares a legal or commercial relationship with the parties., One of the questions that has been referred before us is whether the phrase claiming through or under in Section 8 could be interpreted to include the group of companies doctrine. The group of companies doctrine is founded on the mutual intention of the parties to determine if the non‑signatory entity within a group could be made a party to the arbitration agreement in its own right. Such non‑signatory entity is not claiming through or under a signatory party. As mentioned above, the phrase claiming through or under is used in the context of successors in interest that act in a derivative capacity and substitute the signatory party to the arbitration agreement. To the contrary, the group of companies doctrine is used to bind the non‑signatory to the arbitration agreement so that it can enjoy the benefits and be subject to the burdens that it derived or is conferred in the course of the performance of the contract. The doctrine can be used to bind a non‑signatory party to the arbitration agreement regardless of the phrase claiming through or under as appearing in Sections 8 and 45 of the Arbitration Act., In Chloro Controls (supra), the Supreme Court of India joined the non‑signatory entities as parties to the arbitration agreement in their own rights on the basis that they were signatories to ancillary agreements which were closely interlinked with the performance of the principal agreement containing the arbitration agreement. The Supreme Court of India in Chloro Controls (supra) reasoned that the non‑signatory entities, being part of the same corporate group as the signatory parties, were subsidiaries in interest or subsidiary companies, and therefore were claiming through or under the signatory parties. As held above, the phrase claiming through or under only applies to entities acting in a derivative capacity and not with respect to joinder of parties in their own right. Therefore, we hold that the approach of the Supreme Court of India in Chloro Controls (supra) to the extent that it traced the group of companies doctrine to the phrase claiming through or under is erroneous and against the well‑established principles of contract and commercial law. As observed above, the existence of the group of companies doctrine is intrinsically found on the principle of the mutual intent of parties to a commercial bargain., Chief Justice N. V. Ramana also sought our consideration on the question of whether the group of companies doctrine as expounded by Chloro Controls (supra) and subsequent judgments is valid in law. The group of companies doctrine has important utility in determining the mutual intention of the parties in the context of complex transactions involving multiple parties and multiple agreements. Moreover, the doctrine has been substantively entrenched in Indian arbitration jurisprudence. We are aware of the fact that the group of companies doctrine has not found favor in some other jurisdictions, including English law. However, we deem it appropriate to retain the doctrine which has held the field in Indian jurisprudence though by firmly establishing it within the realm of the mutual consent or the mutual intent of the parties to a commercial bargain. This will ensure on the one hand that Indian arbitration law retains a sense of dynamism so as to respond to contemporary challenges. At the same time, structuring the doctrine in the manner suggested so as to ground it in settled principles governing the elucidation of mutual intent is necessary. This will ensure that the doctrine has a jurisprudential foundation in party autonomy and consent to arbitrate., Although the issue before us largely concerns the application of the group of companies doctrine in the Indian context, the Supreme Court of India cannot be oblivious to the changing currents in international arbitration jurisprudence. In deciding the contours of the group of companies doctrine, we have reiterated the general legal proposition that non‑signatory persons or entities can also be bound by an arbitration agreement. The basis for such joinder stems from the harmonious reading of Section 2(1)(h) along with Section 7 of the Arbitration Act. Since the scope of this judgment was limited to the group of companies doctrine, any authoritative determination given by the Supreme Court of India in the course of this judgment should not be interpreted to exclude the application of other doctrines and principles for binding non‑signatories to arbitration agreements. However, we also need to be mindful of the fact that Indian courts and tribunals should not adopt an over‑zealous approach to extending the jurisdiction of arbitral tribunals to non‑signatory parties merely on the ground that they are part of a corporate group., In Cheran Properties (supra), the Supreme Court of India found the non‑signatory to be claiming through or under the signatory party to the arbitration agreement and not as a party to the arbitration agreement. In that case, the Court was dealing with an issue pertaining to enforcement of an arbitral award. On the available facts and circumstances, the Court held that the non‑signatory was a nominee of the signatory party under the underlying commercial contract, and therefore was acting in a derivative capacity. In Canara Bank (supra) the Supreme Court of India indirectly adopted the principle of estoppel to bind the non‑signatory on the basis that it had already participated in the judicial proceedings before the High Court, and cannot subsequently deny being a party to the proceedings before the arbitral tribunal. In Discovery Enterprises (supra) the Supreme Court of India remanded the matter back to the arbitral tribunal to decide afresh the application for discovery and inspection by applying the group of companies doctrine. Therefore, we can conclude that the observations pertaining to the group of companies doctrine were rendered in the facts and circumstances of each case. We have harmonized the divergent strands of law emanating from these judgments in the preceding paragraphs., In Law’s Empire, Ronald Dworkin proposed a hypothetical where a group of novelists write a novel seriatim, each novelist interpreting the chapters given to them to write a new chapter. The novelists are expected to take their responsibilities of continuity more seriously to create a single unified novel that is the best it can be. Chloro Controls (supra) was the first chapter in the group of companies doctrine in Indian arbitration jurisprudence. The series of subsequent judgments starting from Cheran Properties (supra) and ending with Cox and Kings (supra) were the incremental chapters each adding further dimensions to the theory already propounded in the previous chapters. In this case, we have added another chapter to the theory of group of companies doctrine. Our aim was to make further progress in the course of evolution of arbitration law. In the process, we have tweaked the plotline to make the novel a more coherent read, instead of rewriting or discarding the previous chapters., Power of the Courts to issue directions under Section 9. In Cox and Kings (supra), Chief Justice Ramana observed that establishing the group of companies doctrine in the phrase claiming through or under creates an anomalous situation where a party claiming through or under could be referred to an arbitration agreement, but would not have a right to seek relief under Section 9 of the Arbitration Act. Section 9 allows a party to approach the court to seek interim measures such as appointment of a guardian for a minor or person of unsound mind, custody or sale of any goods which are the subject matter of the arbitration agreement, and appointment of receiver., The group of companies doctrine is based on determining the mutual intention to join the non‑signatory as a veritable party to the arbitration agreement. Once a tribunal comes to the determination that a non‑signatory is a party to the arbitration agreement, such non‑signatory party can apply for interim measures under Section 9 of the Arbitration Act. Establishing the legal basis for the application of the group of companies doctrine in the definition of party under Section 2(1)(h) read with Section 7 of the Arbitration Act resolves the anomaly pointed out by Chief Justice Ramana., The standard of determination at the referral stage Sections 8 and 11. The last but not the least issue that arises for our consideration pertains to the stage of applicability of the group of companies doctrine under the Arbitration Act. In Cox and Kings (supra), Chief Justice Ramana observed that there is a need to have a relook at the scope of judicial reference at the stage of Sections 8 and 11 of the Arbitration Act considering the ambit of the unamended Section 2(1)(h). Section 5 of the Arbitration Act provides that no judicial authority shall intervene except where so provided in this Part. The context for so provided is contained in Sections 8 and 11 which mandate the courts to refer the parties to arbitration. Under Section 8, the court has to prima facie ascertain the existence of a valid arbitration agreement before referring the parties to arbitration. Section 11 empowers the Supreme Court of India and High Courts to appoint arbitrators on the failure of the parties to comply with the agreed arbitration procedure. Section 11 could be invoked in situation where a dispute has arisen and one of the parties to the arbitration agreement unsuccessfully invoked the agreed procedure for the appointment of an arbitrator due to the non‑cooperation of the other party., In SBP & Co v. Patel Engineering Ltd, a seven‑Judge Bench of the Supreme Court of India was called upon to determine the scope of the powers of the Chief Justice or their designate under Section 11 of the Arbitration Act. It was held that the Chief Justice or the designated judge will have the powers to determine the jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence of a live claim, the existence of the condition for the exercise of their powers, and the qualifications of the arbitrators. Furthermore, it was held that the Chief Justice has to decide whether there is an arbitration agreement as defined under the Arbitration Act and whether the person who has made a request is party to such an agreement., In 2015, the Arbitration Act was amended to insert Section 11(6‑A). The provision reads as follows: (6A) The Supreme Court, or as the case may be, the High Court, while considering any application under sub‑section (4) or subsection (5) or sub‑section (6), shall, notwithstanding any judgment, decree, or order of any Court, confine to the examination of the existence of an arbitration agreement. By virtue of non‑obstante clause, Section 11(6A) has set out a new position, which takes away the basis of the position laid down in Patel Engineering (supra). In 2019, the Parliament passed the Arbitration and Conciliation (Amendment) Act, 2019 omitting Section 11(6‑A). However, the amendment to Section 11(6‑A) is yet to be notified. Till such time, Section 11 as amended in 2015 will continue to remain in force., When deciding the referral issue, the scope of reference under both Sections 8 and 11 is limited. Where Section 8 requires the referral court to look into the prima facie existence of a valid arbitration agreement, Section 11 confines the court’s jurisdiction to the examination of an arbitration agreement., Section 16 of the Arbitration Act enshrines the principle of competence‑competence in Indian arbitration law. The provision empowers the arbitral tribunal to rule on its own jurisdiction, including any ruling on any objections with respect to the existence or validity of arbitration agreement. Section 16 is an inclusive provision which comprehends all preliminary issues touching upon the jurisdiction of the arbitral tribunal. The doctrine of competence‑competence is intended to minimize judicial intervention at the threshold stage. The issue of determining parties to an arbitration agreement goes to the very root of the jurisdictional competence of the arbitral tribunal., In Vidya Drolia (supra), Justice N. V. Ramana (as the learned Chief Justice then was) held that the amendment to Section 8 rectified the shortcomings pointed out in Chloro Controls (supra) with respect to domestic arbitration. He further observed that the issue of determination of parties to an arbitration agreement is a complicated exercise, and should best be left to the arbitral tribunals: Jurisdictional issues concerning whether certain parties are bound by a particular arbitration, under group‑company doctrine or good faith, etc. in a multi‑party arbitration raises complicated factual questions, which are best left for the tribunal to handle. The amendment to Section 8 on this front also indicates the legislative intention to further reduce the judicial interference at the stage of reference., In Pravin Electricals Pvt Ltd v. Galaxy Infra and Engineering Pvt Ltd, a Bench of three Judges of the Supreme Court of India was called upon to decide an appeal arising out of a petition filed under Section 11(6) of the Arbitration Act for appointment of sole arbitrator. The issue before the Court was the determination of existence of an arbitration agreement on the basis of the documentary evidence produced by the parties. This Court prima facie opined that there was no conclusive evidence to infer the existence of a valid arbitration agreement between the parties. Therefore, the issue of existence of a valid arbitration agreement was referred to be decided by the arbitral tribunal after conducting a detailed examination of documentary evidence and cross‑examination of witnesses., The above position of law leads us to the inevitable conclusion that at the referral stage, the court only has to determine the prima facie existence of an arbitration agreement. If the referral court cannot decide the issue, it should leave it to be decided by the arbitration tribunal. The referral court should not unnecessarily interfere with arbitration proceedings, and rather allow the arbitral tribunal to exercise its primary jurisdiction. In Shin‑Etsu Chemical Co Ltd v. Aksh Optifibre Ltd, the Supreme Court of India observed that there are distinct advantages to leaving the final determination on matters pertaining to the validity of an arbitration agreement to the tribunal: Even if the Court takes the view that the arbitral agreement is not vitiated or that it is not valid, inoperative or unenforceable, based upon purely a prima facie view, nothing prevents the arbitrator from trying the issue fully rendering a final decision thereupon. If the arbitrator finds the agreement valid, there is no problem as the arbitration will proceed and the award will be made. However, if the arbitrator finds the agreement invalid, inoperative or void, this means that the party who wanted to proceed for arbitration was given an opportunity of proceedings to arbitration, and the arbitrator after fully trying the issue has found that there is no scope for arbitration., In Chloro Controls (supra), the Supreme Court of India held that it is the legislative intent of Section 45 of the Arbitration Act to give a finding on whether an arbitration agreement is null and void, inoperative and incapable of being performed before referring the parties to arbitration. In 2019, the expression unless it prima facie finds was inserted in Section 45. In view of the legislative amendment, the basis of the above holding of Chloro Controls (supra) has been expressly taken away. The present position of law is that the referral court only needs to give a prima facie finding on the validity or existence of an arbitration agreement., In Deutsche Post Bank Home Finance Ltd v. Taduri Sridhar, a two‑Judge Bench of the Supreme Court of India held that when a third party is impleaded in a petition under Section 11(6) of the Arbitration Act, the referral court should delete or exclude such third party from the array of parties before referring the matter to the tribunal. This observation was made prior to the decision of the Supreme Court of India in Chloro Controls (supra) and is no longer relevant in light of the current position of law. Thus, when a non‑signatory person or entity is arrayed as a party at Section 8 or Section 11 stage, the referral court should prima facie determine the validity or existence of the arbitration agreement, as the case may be, and leave it for the arbitral tribunal to decide whether the non‑signatory is bound by the arbitration agreement., In case of joinder of non‑signatory parties to an arbitration agreement, the following two scenarios will prominently emerge: first, where a signatory party to an arbitration agreement seeks joinder of a non‑signatory party to the arbitration agreement; and second, where a non‑signatory party itself seeks invocation of an arbitration agreement. In both the scenarios, the referral court will be required to prima facie rule on the existence of the arbitration agreement and whether the non‑signatory is a veritable party to the arbitration agreement. In view of the complexity of such a determination, the referral court should leave it for the arbitral tribunal to decide whether the non‑signatory party is indeed a party to the arbitration agreement on the basis of the factual evidence and application of legal doctrine. The tribunal can delve into the factual, circumstantial, and legal aspects of the matter to decide whether its jurisdiction extends to the non‑signatory party. In the process, the tribunal should comply with the requirements of principles of natural justice such as giving opportunity to the non‑signatory to raise objections with regard to the jurisdiction of the arbitral tribunal. This interpretation also gives true effect to the doctrine of competence‑competence by leaving the issue of determination of true parties to an arbitration agreement to be decided by arbitral tribunal under Section 16., Conclusions. In view of the discussion above, we arrive at the following conclusions: a. The definition of parties under Section 2(1)(h) read with Section 7 of the Arbitration Act includes both the signatory as well as non‑signatory parties; b. Conduct of the non‑signatory parties could be an indicator of their consent to be bound by the arbitration agreement; c. The requirement of a written arbitration agreement under Section 7 does not exclude the possibility of binding non‑signatory parties; d. Under the Arbitration Act, the concept of a party is distinct and different from the concept of persons claiming through or under a party to the arbitration agreement; e. The underlying basis for the application of the group of companies doctrine rests on maintaining the corporate separateness of the group companies while determining the common intention of the parties to bind the non‑signatory party to the arbitration agreement; f. The principle of alter ego or piercing the corporate veil cannot be the basis for the application of the group of companies doctrine; g. The group of companies doctrine has an independent existence as a principle of law which stems from a harmonious reading of Section 2(1)(h) along with Section 7 of the Arbitration Act; h. To apply the group of companies doctrine, the courts or tribunals, as the case may be, have to consider all the cumulative factors laid down in Discovery Enterprises (supra). Resultantly, the principle of single economic unit cannot be the sole basis for invoking the group of companies doctrine; i. The persons claiming through or under can only assert a right in a derivative capacity; j. The approach of the Supreme Court of India in Chloro Controls (supra) to the extent that it traced the group of companies doctrine to the phrase claiming through or under is erroneous and against the well‑established principles of contract law and corporate law; k. The group of companies doctrine should be retained in the Indian arbitration jurisprudence considering its utility in determining the intention of the parties in the context of complex transactions involving multiple parties and multiple agreements; l. At the referral stage, the referral court should leave it for the arbitral tribunal to decide whether the non‑signatory is bound by the arbitration agreement; and m. In the course of this judgment, any authoritative determination given by the Supreme Court of India pertaining to the group of companies doctrine should not be interpreted to exclude the application of other doctrines and principles for binding non‑signatories to the arbitration agreement., We answer the questions of law referred to this Constitution Bench in the above terms. The Registry shall place the matters before the Regular Bench for disposal after obtaining the directions of the Chief Justice of India on the administrative side. [Dr Dhananjaya Y. Chandrachud] [Hrishikesh Roy] [J. B. Pardiwala] [Manoj Misra] New Delhi; December 06, 2023 Arbitration Petition (Civil) No. 38 of 2020 Cox and Kings Ltd. Petitioner(s) Versus SAP India Pvt. Ltd. & Anr. Respondent(s) SLP (C) No. 8607 of 2022 SLP (C) No. 5833 of 2022 Index., Indian Precedents on the Group of Companies Doctrine. Group of Companies Doctrine in the Context of Section 7. Introduction. The reference to this Constitution Bench is for an authoritative determination of the applicability of the Group of Companies doctrine to proceedings under the Arbitration and Conciliation Act, 1996, and if found to be applicable and statutorily anchored, to delineate its precise contours. In the reference order, Chief Justice N. V. Ramana highlighted the variations in the exposition and application of the doctrine as it has evolved in India. He questioned the statutory source of the doctrine in the phrase claiming through or under, which appears in Sections 8 and 45 of the Act. He also cautioned that maintaining the separate legal identities of members within the same group of companies is a fundamental principle of corporate and contract law. In this light, the specific questions formulated and referred to this Constitution Bench by Chief Justice N. V. Ramana are as follows: (a) Whether phrase claiming through or under in Sections 8 and 45 could be interpreted to include Group of Companies doctrine? (b) Whether the Group of Companies doctrine as expounded by Chloro Controls case and subsequent judgments are valid in law? Justice Surya Kant concurred with Chief Justice Ramana and supplemented his reasons for reference. At the outset, he emphasised the need to retain the doctrine in India to keep pace with the complexity of multi‑party business transactions, where certain persons do not formally sign the contract but are involved in its negotiation and performance. Especially in India, with large number of family‑run business groups, he expressed that the inclusion of the non‑signatory company is essential for effective and complete dispute resolution through arbitration. However, he also indicated the need to iron out inconsistencies in the formulation of the doctrine. He questioned the reliance on equity considerations and single economic reality to determine non‑signatories to be parties, as these undermine well‑entrenched principles of party autonomy and separate legal entity. In this light, for an authoritative determination of the contours of the doctrine, he framed the following questions: (a) Whether the Group of Companies doctrine should be read into Section 8 of the Act or whether it can exist in Indian jurisprudence independent of any statutory provision? (b) Whether the Group of Companies doctrine should continue to be invoked on the basis of the principle of single economic reality? (c) Whether the Group of Companies doctrine should be construed as a means of interpreting the implied consent or intent to arbitrate between the parties? (d) Whether the principles of alter ego and/or piercing the corporate veil can alone justify pressing the Group of Companies doctrine into operation even in the absence of implied consent? The broad question before us relates to the parties to an arbitration agreement. This question must take us to Section 7 of the Act that defines an arbitration agreement as under: 7. Arbitration agreement. (1) In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in a document signed by the parties.
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(b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract., It is evident from the above‑referred statutory prescription that an arbitration agreement is described in sub‑section (1) of Section 7 as an agreement by the parties. Both these expressions, agreement and parties, are important for our consideration. For a proper understanding of the expressions, it is necessary to examine the place of arbitration as a dispute redressal mechanism in the larger body of institutional remedies in civil law., In our legal system, access to civil courts is a standard judicial remedy. Civil courts have the jurisdiction to try all civil suits, and any agreement to restrict the remedy is declared void. Section 9 of the Code of Civil Procedure, 1908 reads: “Courts to try all civil suits unless barred. The Supreme Court of India shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Under Section 28 of the Indian Contract Act, 1872, exceptions to Section 28 save a contract to refer to arbitration any dispute that has arisen or may arise between two or more persons. Thus, a restriction on accessing civil remedy is saved under Section 28 of the Contract Act if there is a contract to arbitrate., A contract is defined under the Contract Act as an agreement enforceable by law. An agreement is formed when a promise or mutual promises (defined in Section 2(b)) are made. For the purposes of this section, it is immaterial whether any fees are attached to the office referred to in Explanation I or whether such office is attached to a particular place. The relevant portion of Section 28, Indian Contract Act, 1872 reads: “Agreements in restraint of legal proceedings, void. Every agreement, (a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or (b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.”, Exception 1. Saving of contract to refer to arbitration dispute that may arise. This section shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Exception 2. Saving of contract to refer questions that have already arisen. Nor shall this section render illegal any contract in writing by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration., Section 2(h) of the Indian Contract Act, 1872 reads: “An agreement enforceable by law is a contract.” Section 2(e) reads: “Every promise and every set of promises, forming the consideration for each other, is an agreement.” Section 2(b) reads: “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise; reciprocated with a consideration (defined in Section 2(d)), and these promises can either be express (when its proposal or acceptance is in words) or implied (when its proposal or acceptance is otherwise than in words).” An agreement is legally enforceable as a contract if it is formed with the free consent of parties who are competent to contract, for a lawful consideration and lawful object. An arbitration agreement is more specifically defined in Section 7(1) of the Arbitration and Conciliation Act, 1996 as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not., The use of the phrase “whether contractual or not” qualifies the dispute, not the agreement; an arbitration agreement must always be a contract. Section 2(d) reads: “When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.” Section 9 reads: “Promises, express and implied. In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” Section 10 reads: “What agreements are contracts. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.” The dispute that is referred to arbitration need not necessarily be contractual; it suffices that it arises out of a defined legal relationship. Arbitration agreements must be in writing, as against an oral agreement. However, they need not be signed documents: India has adopted the United Nations Commission on International Trade Law model, which lays emphasis on the substance of an agreement rather than its form to determine the existence of the agreement to arbitrate. Sub‑Section (2) of Section 7 incorporates this principle and recognises an agreement either in the form of an arbitration clause in the contract or in the form of a separate agreement., Section 7(3) mandates that an arbitration agreement shall be in writing, meaning that the arbitration agreement must be in express terms. Subsequently, Section 7(4) declares that an arbitration agreement is in writing if it is contained in: (a) a document signed by the parties; (b) exchange of correspondence that provides the record of the agreement; and (c) admission in the proceedings, i.e., the statement of claim and defence. It is evident from the deliberate language of Section 7 that the arbitration agreement must be in a written form, in contradistinction to an oral agreement, and at the same time, it is not necessary for it to be signed by the parties. A signed document containing the arbitration agreement is only one of the written forms, where the signature of the party is absolute proof for the existence and privity of the contract., Section 7 therefore comprehensively defines what an arbitration agreement is and also from where it is to be identified. The referral court under Sections 8, 11 or 45 of the Act, or the arbitral tribunal, is the forum that identifies and deciphers the existence of an arbitration agreement and its parties. The real question, however, is how the Supreme Court of India or tribunal must make this determination, particularly when a non‑signatory seeks to initiate arbitration or is sought to be made party by a signatory. Apart from the standard methods of drawing inferences by interpreting the express language employed in the agreement, what are the other external aids to assist the Supreme Court of India or the arbitral tribunal in constructing the existence of the arbitration agreement with the non‑signatory is the question that we are called upon to answer. (Jugal Kishore Rameshwardas v. Goolbai Hormusji, Supreme Court Reports 1955, para 7; Caravel Shipping Services (P) Ltd v. Premier Sea Foods Exim (P) Ltd, Supreme Court of India 2019, para 8)., Section 7(4)(b) – An arbitration agreement with non‑signatories is to be inferred from the record of the agreement consisting of the exchange of correspondence such as letters, telex, telegrams, and other telecommunication and electronic communication, wherein it unequivocally and clearly emerges that the parties were ad idem. In Rickmers Verwaltung GmbH v. Indian Oil Corporation Ltd, the Supreme Court of India referred to the role of courts while considering the existence of an arbitration agreement as follows: The question, however, is: can any agreement be spelt out from the correspondence between the parties in the instant case? The cardinal principle is that it is the duty of the Supreme Court of India to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them, but the court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are appropriate implications of law to be drawn. Unless from the correspondence it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The Supreme Court of India is required to review what the parties wrote and how they acted and, from that material, infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys (Rickmers Verwaltung GmbH v. Indian Oil Corporation Ltd, Supreme Court of India 1999, para 13; MTNL v. Canara Bank, Supreme Court of India 2020, para 9.3). If it shows that there had been meeting of mind between the parties and they had actually reached an agreement upon all material terms, then and only then can it be said that a binding contract was capable of being spelt out from the correspondence., From a careful perusal of the entire correspondence on the record, we are of the opinion that no concluded bargain had been reached between the parties as the terms of the standby letter of credit and performance guarantee were not accepted by the respective parties. In the absence of acceptance of the standby letter of credit and performance guarantee by the parties, no enforceable agreement could be said to have come into existence. The correspondence exchanged between the parties shows that there is nothing expressly agreed between the parties and no concluded enforceable and binding agreement came into existence between them. Apart from the correspondence relied upon by the learned Single Judge of the High Court of India, the fax messages exchanged between the parties, referred to above, show that the parties were only negotiating and had not arrived at any agreement. There is a vast difference between negotiating a bargain and entering into a binding contract. After negotiation of the bargain in the present case, the stage never reached when the negotiations were completed giving rise to a binding contract. In Babanrao Rajaram Pund v. Samarth Builders and Developers, the Supreme Court of India held: “It is thus imperative upon the courts to give greater emphasis to the substance of the clause, predicated upon the evident intent and objectives of the parties to choose a specific form of dispute resolution to manage conflicts between them. The intention of the parties that flows from the substance of the agreement to resolve their dispute by arbitration is to be given due weightage. It is crystal clear that Clause 18, in this case, contemplates a binding reference to arbitration between the parties and it ought to have been given full effect by the High Court of India. The parties must mutually intend to refer their differences to arbitration as consent is the source of the arbitral tribunal’s jurisdiction over them.”, The settled jurisprudence under Section 7(4)(b) is that the non‑signatory’s consent to an arbitration agreement can be made out from its conduct by way of exchange of letters, telegrams and other forms of written communication. These correspondences constitute the written record of the agreement. In Smita Conductors v. Euro Alloys, the Supreme Court of India was tasked with determining whether certain correspondences by the appellant, not addressed to the respondent, showed the appellant’s consent to arbitration as per Article II(2) of the New York Convention, under the Foreign Awards (Recognition and Enforcement) Act, 1961. The Supreme Court of India noted that the contracts containing the arbitration clause were not signed by the appellant, nor were there any letters or telegrams between the appellant and respondent where the appellant expressly assented to these contracts. Rather, it relied on correspondences by the appellant to a bank where it acted in pursuance of the terms of the contract, providing a record of the arbitration agreement. Therefore, even in the absence of a signature, the non‑signatory’s consent to arbitration can be gathered from its written correspondence (even with third parties) that shows its conduct pursuant to the contract containing the arbitration agreement., This principle has been consistently applied by the Supreme Court of India to determine whether the non‑signatory is a party to an arbitration agreement in accordance with Section 7(4)(b). Our courts and tribunals have sufficiently developed the interpretive tools to determine the intention of the parties to refer disputes to arbitration by construing the express language in the correspondence. It has also been held that once the terms of the contract show an intention to refer disputes to arbitration, parties cannot wriggle out of the arbitration agreement., Having considered the statutory scheme and also the consistent approach of the Supreme Court of India in interpreting and construing, the following principles can be restated: i. An arbitration agreement is a contract. It must meet the requirements of an agreement enforceable by law under the Indian Contract Act, 1872. ii. Section 7(2) of the Arbitration and Conciliation Act, 1996 recognises the existence of an arbitration agreement in substance rather than in form. The agreement may be in the form of an arbitration clause in a contract or it may be in the form of a separate agreement. iii. Section 7(3) mandates that the arbitration agreement shall be in writing, as against an oral agreement. However, the written form of the document evidencing the agreement need not be signed by the parties. iv. “Party” is defined in Section 2(1)(h) as a party to an arbitration agreement. The determination of the arbitration agreement and its parties are inextricably connected, their existence being based on the written agreement., If the arbitration agreement is evidenced in the written form as contained in a document signed by the parties (Section 7(4)(a)), the parties to the agreement are evidently those who have signed the agreement. If the arbitration agreement is evidenced in the written form as admissions in pleadings comprising statements of claim and defence (Section 7(4)(c)), parties to this agreement would be evident from the statements of claim and defence and the admissions made therein. The arbitration agreement may also be in writing if it is contained in the record of the agreement comprising exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means (Section 7(4)(b)). In these instances, parties to the agreement as well as the existence of the arbitration agreement are matters of interpretation and construction by the referral court or arbitral tribunal. The inquiry under Section 7(4)(b) is to determine whether there exists an agreement for referring the matter to arbitration and who are the parties to such an agreement. The referral court or the arbitral tribunal, while considering the claim of a non‑signatory for reference, or the objection of a non‑signatory to inclusion in an arbitration, will primarily examine the record of agreement under Section 7(4)(b) and consider the express language employed by the parties. Once the express terms are ascertained, their meaning is a matter of construction by the Supreme Court of India or arbitral tribunal. The object of such construction is to discover the intention of the parties. Intention must always be ascertained through the words actually used, for there is no intention independent of the language employed by the parties. For the purpose of ascertaining the true meaning of the express words, the Supreme Court of India or tribunal may also look into the surrounding circumstances such as the nature and object of the contract, and the conduct of the parties during the formation, implementation, and discharge of the contract., As the arbitration agreement is confined to a written document contained in the material specified in Section 7(4)(b) and the interpretation and construction is based on its text, Sections 91 and 92 of the Indian Evidence Act, 1872 disable adducing of oral evidence. This is necessary to prevent a referral proceeding from being converted into a full‑fledged trial. If the arbitration agreement cannot be deduced from the record of agreement as provided in Section 7(4)(b), the inquiry must conclude. This approach is in consonance with the requirement of a written agreement and also subserves the important policy consideration as surmised in Section 5 of the Act., It is in the context of the above‑referred legal regime, statutory as well as precedential, that we need to consider the questions whether the Group of Companies Doctrine is part of Indian arbitration jurisprudence and whether it has any statutory basis (ONGC v. Saw Pipes Ltd, Supreme Court of India 2003, para 13; Roop Kumar v. Mohan Thedani, Supreme Court of India 2003, paras 13, 16‑18)., Group of Companies Doctrine – International Perspectives. I am in complete agreement with the opinion of the learned Chief Justice, who has in his scholarly exposition considered this matter in great detail. He has examined the precedents on the applicability of the doctrine in France, England, Switzerland, and other jurisdictions. The Group of Companies Doctrine was formulated and initially applied by international arbitral tribunals to determine whether a person who has not formally signed an arbitration agreement can be made party to it. It is one of the various legal theories used to determine whether a non‑signatory is a party to the arbitration agreement. Before we proceed to the doctrine itself, it may be relevant to briefly set out the other legal bases, so as to locate the doctrine in the broader jurisprudence on non‑signatories being a party., The legal bases for making a non‑signatory a party can be classified as consensual and non‑consensual. The consensual theories focused on determining the mutual intent of the parties include agency, implied consent, and assignment and transfer of contractual rights. The non‑consensual theories based on equity considerations include alter ego/piercing the corporate veil, estoppel, succession, and apparent authority. These principles, whether consensual or non‑consensual, are derived from general principles of contractual law and corporate law., The Group of Companies doctrine was formulated and theorised exclusively in international arbitration jurisprudence to specifically determine whether a company which is a non‑signatory is a party to the arbitration agreement. Gary Born clarifies that this principle is not evoked outside the context of arbitration., With this background, I will now discuss the doctrine along with other considerations and legal tests that guide its application., The doctrine was first developed by a French arbitral tribunal in an interim award by the International Chamber of Commerce. In Dow Chemical A.G. and Dow Chemical Europe (fully‑owned subsidiaries of Dow Chemical Company (USA)) were signatories to two separate agreements containing arbitration clauses with Isover Saint Gobain. Dow Chemical France, a non‑signatory to these agreements but a member of the Dow group, effectuated the deliveries under these agreements. When disputes arose and Isover instituted suits in the French courts against all four Dow companies, both the signatory and the non‑signatory Dow companies instituted arbitral proceedings. Isover objected to the arbitral tribunal’s jurisdiction to render an award with respect to Dow Chemical France and Dow Chemical Company (USA), as they were non‑signatories. The non‑signatory companies argued that they could invoke arbitration due to their involvement in the conclusion and performance of these contracts and by virtue of being in the same group of companies., The arbitral tribunal applied French law to determine whether the non‑signatories are parties by reference to the common intent of the parties, as it appears from the circumstances that surround the conclusion and characterize the performance and later the termination of the contracts. It held that Dow Chemical France and Dow Chemical Company (USA) were central to the negotiation and conclusion of both contracts. Further, they were involved in the performance of the contracts and their subsequent termination since Dow Chemical France effected the deliveries and Dow Chemical Company (USA) owned the trademarks for the goods and exercised absolute control over its subsidiaries. Relying on these facts, the tribunal concluded that both companies participated in the conclusion, performance, and termination of the contracts. It held: “Considering that irrespective of the distinct juridical identity of each of its members, a group of companies constitutes one and the same economic reality (une réalité économique unique) of which the arbitral tribunal should take account when it rules on its own jurisdiction.”, From the above extracts, it is clear that membership in the same group of companies or same economic reality were neither the sole nor the guiding factors to hold that the non‑signatory companies were parties. Rather, the tribunal’s emphasis was on the mutual intent of the parties, gathered from their conduct in the conclusion, performance, and termination of the contracts., The subsequent exposition and application of the doctrine by French arbitral tribunals and courts also largely reflects a focus on mutual intent, rather than mere membership in the same group, which has been held to be insufficient in and of itself to make the non‑signatory a party., In Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, the Paris Court of Appeal enforced the arbitral award against the Pakistan government (non‑signatory) as its conduct through involvement in the negotiation and performance of the contract reflected a common will to be a party to the arbitration. Common will must be ascertained according to the principles of good faith, and parties must not be allowed to evade commitments., The focus on mutual intention reflects a fundamental difference between the Group of Companies doctrine and piercing the veil or alter ego. In veil‑piercing, the separate legal identities of the parent and subsidiary companies are disregarded or nullified on equity and fairness considerations, such as to prevent fraud. Application of the Group of Companies doctrine does not result in lifting the corporate veil; it is based on identifying the mutual intention of the parties., The doctrine has not been accepted in the same terms across the world., In the United Kingdom, in Peterson Farms Inc v. C&M Farming Ltd, the Court rejected the applicability of the doctrine in English law. The separate legal identities of the parent and subsidiary companies are held to be a fundamental legal tenet. The UK Supreme Court differed from the Paris Court of Appeal on enforcing the arbitral award against the Government of Pakistan (non‑signatory).
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Even after applying French law to determine when a non-signatory is a party, based on the material before it, the Supreme Court of India held there was no mutual intention in this case to make the Government of Pakistan a party. Similarly, in Kabab‑Ji SAL (Lebanon) v. Kout Food Group (Kuwait), the United Kingdom Supreme Court did not enforce the arbitral award against the non‑signatory company as there was no material to show that it was a party as per the terms of the contract. Singapore courts have also rejected the applicability of the Group of Companies doctrine by emphasising the fundamental corporate law principle of separate legal identities. Swiss courts, on the other hand, have allowed non‑signatories to be made party to the arbitration agreement based on their conduct, manifesting implied consent. The Swiss Federal Court has held that an arbitration agreement must itself be in writing as per Article 178 of the Swiss Private International Law Act. However, the question of whether a non‑signatory is a party to such written arbitration agreement can be determined by reference to its involvement in the preparation and performance of the contract containing the arbitration clause, which reflects its intent to be party to such arbitration agreement., American courts also do not expressly rely on the Group of Companies doctrine to determine whether a non‑signatory is a party. Rather, they use principles such as equitable estoppel, assumption, piercing the corporate veil, alter ego, and waiver. In the recent decision in GE Energy Power Conversion v. Outokumpu Stainless, the United States Supreme Court relied on equitable estoppel to hold that a non‑signatory can compel arbitration where a signatory is relying on terms of the contract to make its claim against the non‑signatory. American courts have also relied on implied consent, third‑party beneficiary, and general contractual and agency law principles to hold that a non‑signatory is a party., This comparative perspective makes it clear that a determination of parties to an arbitration agreement that is based on mutual intention can take place without reference to whether the non‑signatory is a part of the group of companies. In fact, Bernard Hanotiau, an international arbitration scholar, argues that the award in Dow Chemical has been misinterpreted to give rise to the Group of Companies doctrine. Rather, he emphasises that the real implication of Dow is that it enables us to determine whether a non‑signatory is a party by reference to its conduct that reflects its consent. In this light, he argues that any reference to a group of companies is unnecessary as membership within the same group is not a determinative factor in the inquiry of who is a party to the arbitration agreement., The conclusions from the above analysis can be succinctly put forth as follows: Various jurisdictions use both consensual and non‑consensual legal principles to determine whether a non‑signatory is a party to an arbitration agreement. The Group of Companies doctrine is applied irrespective of the distinct juridical identities of each member of the group when they share a common economic reality by virtue of their role in the formation, performance, and termination of the contract. The principle is based on mutual intention of all the parties to settle the dispute through arbitration. The acceptance of the doctrine is highly contested across jurisdictions. The doctrine was developed in France and is applied there by emphasising mutual consent of the signatory and non‑signatory companies. Countries such as the United Kingdom and Singapore have expressly rejected the doctrine and have emphasised the fundamentality of separate legal personalities of members within the same group. Some jurisdictions, such as Switzerland and the United States of America, have not accepted the Group of Companies doctrine in those terms. However, they invoke other legal principles to hold a non‑signatory to be a party to the arbitration agreement, such as conduct, implied consent, contractual and agency principles. American courts also solely rely on equity considerations, such as equitable estoppel and veil piercing or alter ego, to hold a non‑signatory to be a party., Indian precedents on the Group of Companies doctrine will now be considered, and principles that arise from the precedents will be formulated., Two decisions of this Court which preceded Chloro Controls, namely, Sukanya Holdings v. Jayesh H Pandya and Indowind Energy Ltd v. Wescare (India) Ltd, were based on a strict interpretation of Section 7 and considered that parties to an agreement are limited to its signatories., There was a definitive shift in this position from the case of Chloro Controls v. Severin Trent. Arising out of the conspectus of a multi‑party multi‑contractual dispute, a petition for reference to arbitration under Section 45 of the Arbitration and Conciliation Act, 1996 was filed in a suit, despite asymmetry in the parties to the contracts and the parties to the arbitration agreement. Interpreting the words and phrases 'any person', 'claiming through or under', and 'shall' in Section 45, this Court enlarged the scope of reference for the first time to bind non‑signatories., The Court noted that if a claim is made against or by someone who is not originally a signatory to an arbitration agreement, the Group of Companies doctrine can bind the non‑signatory affiliates or sister or parent concerns to arbitration, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non‑signatory affiliates., A non‑signatory or third party could be subjected to arbitration without their prior consent, but this would only be in exceptional cases. The Court will examine these exceptions from the touchstone of direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject‑matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of the mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute., In his opinion, the learned Chief Justice has considered the concern of Justice Surya Kant about an apparent contradiction between the above‑referenced paragraphs and has correctly reconciled the two paragraphs. I am in agreement with the same., In this context, it is critical to emphasize that the Court in Chloro Controls was interpreting Section 45, in Part II of the Act, in particular, the phrase 'claiming through or under'. The conclusion to include non‑signatories to the arbitration agreement pivoted on their derivative claim to being a party to the arbitration agreement. The Group of Companies doctrine thus found recognition in the interpretation of the phrases of Section 45 of the Act. Further, for the derivative action to pass muster, a clear intention of the signatories and non‑signatories had to be assessed through the circumstances delineated by the Court, namely: direct relationship with the party to the agreement, commonality of subject matter, composite nature of transaction, and interlinked performance of the contract., In 2015, the Law Commission of India's 246th Report acknowledged this interpretation of Section 45 to the Act. In the subsequent amendments, Section 8 in Part I of the Act was amended to mirror the language of Section 45; thus, parties in domestic arbitrations could also petition for reference to arbitration in a derivative capacity., The application of the doctrine as recognised in Chloro Controls was not applied on the facts of Duro Felguera, S.A. v. Gangavaram Port Ltd., Until now, the precedents pertained to situations where the parties invoked the pre‑referral jurisdiction of the courts. In Cheran Properties Ltd v. Kasturi and Sons Ltd the Court was approached at the enforcement stage. The Court allowed the enforcement of an arbitral award against a subsequent purchaser of shares under Section 35 of the Act, interpreting the phrase 'persons claiming under them'. Expositions pertaining to the Group of Companies doctrine were observed in the judgment., As the law has evolved, it has recognised that modern business transactions are often effectuated through multiple layers and agreements. There may be transactions within a group of companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non‑signatory entities within the same group. In holding a non‑signatory bound by an arbitration agreement, the court approaches the matter by attributing to the transactions a meaning consistent with the business sense which was intended to be ascribed to them. Therefore, factors such as the relationship of a non‑signatory to a party which is a signatory to the agreement, the commonality of subject‑matter and the composite nature of the transaction weigh in the balance. The Group of Companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non‑signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory., The Court did not rely on the Group of Companies doctrine. Yet, Cheran is an important case to demonstrate that a non‑signatory company can be determined to be a party to an arbitration agreement, based on factors such as relationship of the non‑signatory with the signatory parties, commonality of subject matter, and composite nature of transaction. It is also possible for the court to construct such an agreement where the intention of a business arrangement is apparent and the non‑signatories have bound themselves by their conduct to fulfil such business arrangement., The subsequent decision in Ameet Lalchand Shah v. Rishabh Enterprises is yet another instance where this Court has allowed a non‑signatory to be party to an arbitration agreement, in connected contracts, on the ground of business efficacy, noting that all agreements were executed for a single commercial project. This approach was noted in the subsequent decision of ONGC v. Discovery Enterprises Pvt Ltd, where the learned Chief Justice observed: In Ameet Lalchand, the Court did not explicitly invoke the Group of Companies doctrine to bind a non‑signatory, rather it relied on Chloro Controls to hold that a non‑signatory would be bound by the arbitration clause in the mother agreement, since it is a party to an inter‑connected agreement executed to achieve a common commercial goal., In Reckitt Benckiser (India) Pvt Ltd v. Reynders Label Printing India Pvt Ltd, the Court inferred that since the non‑signatory neither signed the arbitration agreement nor had any causal connection with the negotiation or execution of the agreement, an intent to consent to the arbitration agreement could not be discerned. Hence, the non‑signatory was not bound by the arbitration agreement. Thus, in Reckitt, the Court reverted to the approach of ascertaining mutual intention of the parties for applying the doctrine, although it did not result in the non‑signatory being made a party to the arbitration., MTNL v. Canara Bank is the decision which acknowledged the Group of Companies doctrine, formulated its principles, and applied them to the proceedings by recognising CANFINA, a non‑signatory, to be party to the arbitration agreement. The Court held that the Group of Companies doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non‑signatory affiliate, sister, or parent concern is held to be bound by the arbitration agreement if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non‑signatory affiliates in the group. The doctrine provides that a non‑signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non‑signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract; the non‑signatory will also be bound and benefitted by the relevant contracts. The circumstances in which the doctrine could be invoked to bind the non‑signatory affiliate of a parent company, or inclusion of a third party to an arbitration, are: direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject‑matter; the composite nature of the transaction between the parties. A composite transaction refers to a transaction which is interlinked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute. The doctrine has also been invoked in cases where there is a tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality. In such a situation, signatory and non‑signatories have been bound together under the arbitration agreement, particularly when the funds of one company are used to financially support or restructure other members of the group., In ONGC v. Discovery Enterprises Pvt Ltd, while the decision on whether the non‑signatory was a party was remitted to the arbitral tribunal, the Court undertook a comprehensive review of the academic literature and judicial pronouncements on the issue. The Court concluded that in deciding whether a company within a group of companies which is not a signatory to an arbitration agreement would nonetheless be bound by it, the law considers the following factors: the mutual intent of the parties; the relationship of a non‑signatory to a party which is a signatory to the agreement; the commonality of the subject‑matter; the composite nature of the transaction; and the performance of the contract., Consent and party autonomy are undergirded in Section 7 of the Arbitration and Conciliation Act, 1996. However, a non‑signatory may be held to be bound on a consensual theory, founded on agency and assignment, or on a non‑consensual basis such as estoppel or alter ego., What emerges from the aforementioned precedents is that: The Group of Companies doctrine was adopted and applied in Indian arbitration jurisprudence in Chloro Controls, where the Court read the doctrine into the phrase 'claiming through or under' in Section 45. It held that a non‑signatory affiliate or sister or parent company can be a party to an arbitration agreement if there is mutual intention of the signatories and non‑signatories to this effect. In order to determine mutual intention, the Court laid down factors such as direct relationship, direct commonality of subject‑matter, and a composite transaction where the performance of multiple agreements is inextricably connected. Pursuant to the 2015 amendment of Section 8, the Court made a composite reference of signatories and non‑signatories to arbitration by emphasising that all agreements were executed for a single commercial project, but without explicitly referring to the Group of Companies doctrine. Subsequently, this Court relied on mutual intention as the test for the doctrine. However, it deviated from Chloro Controls by prescribing the non‑signatory's causal connection with the negotiation and execution of the contract as factors to determine its mutual intent to arbitrate. In MTNL, the Court summarised the test under the doctrine as being based on the common intention of the parties to bind both signatory and non‑signatory members of the group of companies. Such common intention can be inferred from the non‑signatory's involvement in negotiation and performance of the contract, or from its statements that indicate its intention to be a party. Simultaneously, the Court also referred to the test in Chloro Controls for determining mutual intention. Lastly, the Court held the doctrine to be applicable when there is a tight group structure or single economic reality, without any reference to the intention of the parties. However, the Court ultimately relied on implied or tacit consent by the non‑signatory, evidenced by its conduct, to hold that it is a party., In Discovery Enterprises, the Court comprehensively reviewed the above cases and articulated that the factors to determine whether the non‑signatory is a party are: mutual intent of the parties; relationship of the non‑signatory to the signatory; commonality of subject‑matter; composite nature of transaction; and performance of the contract. These factors emphasise mutual intention and draw from the tests laid down in Chloro Controls and Reckitt Benckiser but do not include the test of single economic reality as a determinative factor, as held in MTNL., It is necessary to clarify whether the Group of Companies doctrine is anchored in Sections 8 and 45 of the Act. The expression 'claiming through or under' employed in Sections 8 and 45 is concerned with instances of succession and derivative rights. The learned Chief Justice has dealt with this aspect in great detail and held that the doctrine cannot be anchored in Sections 8 and 45 and to this extent, Chloro Controls is wrongly decided. I am in complete agreement with his reasons and findings., In this reference, we are tasked to determine whether the Group of Companies doctrine is in accord with the statutory regime of the Arbitration and Conciliation Act, 1996, defining an arbitration agreement and parties thereto. The adaptation of the doctrine has been doubted, and that is the reason for this reference., A conjoint reading of Section 9 of the Code of Civil Procedure and Section 28 of the Indian Contract Act informs us that the jurisdiction of an arbitral tribunal to settle disputes between the parties, to the exclusion of ordinary civil courts, must arise out of a contract to arbitrate between them. An arbitration agreement, being a contract, must necessarily be in writing, as against an oral agreement, but need not be signed by the parties. The written arbitration agreement can be in the form of a document signed by the parties, or be evidenced in the record of agreement. Section 7(4)(b) prescribes the written material from which a non‑signatory's consent and intention can be deciphered by a court or arbitral tribunal., The existence of an arbitration agreement with a non‑signatory is a matter of interpretation and construction. The express words employed by the parties enable the court to ascertain the intention of the parties and their agreement to resolve disputes through arbitration. For ascertaining the true meaning of the express words, the court or tribunal may look into the surrounding circumstances such as nature and object of the contract and the conduct of the parties during the formation, performance, and discharge of the contract. While interpreting and constructing the contract, courts or tribunals may adopt well‑established principles, which aid proper adjudication and determination. The Group of Companies doctrine is one such principle. It may be adopted by courts or arbitral tribunals while interpreting the record of agreement to determine whether the non‑signatory company is a party to it., Although the application of the Group of Companies doctrine in India has until now been independent of Section 7, its juxtaposition with Section 7(4)(b) case law shows that the inquiry under both is premised on determining the mutual intention of parties to submit to arbitration. The mutual intention of the parties is discernible from their conduct in the performance of the contract and this inquiry is common to Section 7(4)(b) jurisprudence and the Group of Companies doctrine. Even the precedents on the doctrine, national and international, look to additional factors beyond the non‑signatory being in the same group of companies, such as commonality of subject‑matter, composite nature of transaction, and interdependence of the performance of the contracts to determine mutual intent., Since the fundamental issue before the court or tribunal under Section 7(4)(b) and the Group of Companies doctrine is the same, the doctrine can be subsumed within Section 7(4)(b). Consequently, the record of agreement that evidences conduct of the non‑signatory in the formation, performance, and termination of the contract and surrounding circumstances such as its direct relationship with the signatory parties, commonality of subject matter, and composite nature of transaction must be comprehensively used to ascertain the existence of the arbitration agreement with the non‑signatory. In this inquiry, the fact of a non‑signatory being a part of the same group of companies will strengthen its conclusion. In this light, there is no difficulty in applying the Group of Companies doctrine as it would be statutorily anchored in Section 7 of the Act.
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M. Suveathan, a minor represented by his father P. Maharaja, is the petitioner. The respondents are: State Commission for Protection of Child Rights, 183/1, EVR Periyar Salai, Poonamallee High Road, Kilpauk, Chennai 600010; Director of Matriculation Schools, Office of the Director of Matriculation Schools, College Road, DPI Compound, Nungambakkam, Chennai; District Education Officer, Vellore District; Principal, Little Flower Matriculation School, No.11, New Balavinayagar Street, Bhuvaneswaripet, Gudiyattam 632602, Vellore District; Secretary to Government School Education Department, Government of Tamil Nadu, Fort St. George, Chennai. Respondent 5 was suo motu impleaded by order of Madras High Court dated 25 November 2022. The writ petition is filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the State Commission for Protection of Child Rights, the first respondent, to pass appropriate orders on the petitioner's representation dated 27 August 2021. For the petitioner: Mr. R. Sankarasubbu. For the respondents: Mr. S. Balamurugan, Government Advocate for Respondent 1; Mr. V. Arun, Additional Advocate General, assisted by Mr. R. Kumaravel for Respondents 2, 3 and 5; Mr. R. Natarajan for Respondent 4., Though this writ petition has been filed for a mandamus simpliciter directing the first respondent to consider the representation submitted, the issue before the Madras High Court extends to the broader Indian citizenry, particularly the future generation, and concerns the education of children belonging to weaker strata of society and the provision of free education, necessitating a deeper analysis of the case., The petitioner, a minor belonging to a weaker section of society, was admitted to the fourth respondent school in the academic year 2017‑2018 under the quota earmarked for children of weaker sections and disadvantaged groups in private non‑minority unaided schools as mandated by the Right of Children to Free and Compulsory Education Act, 2009 (the Act). Upon admission, the petitioner was directed to pay fees of Rs 5,340 for 2017‑2018 and Rs 6,437 for 2018‑2019, which he paid. Subsequently, the fourth respondent demanded Rs 11,977 as fee for the academic year 2019‑2020. Despite the petitioner’s application under Section 7(1) of the Right to Information Act seeking the fee structure for students admitted under the quota, no information was provided. After the petitioner approached the District Collector, directions were issued to the fourth respondent to permit the petitioner to continue classes without paying any fees. Although the petitioner was allowed to continue, he was not provided with uniform, books and notes, whereas other students not admitted under the quota received such materials. Despite repeated attempts, the fourth respondent failed to provide the materials, contrary to its undertaking to the first respondent. This conduct amounts to clear discrimination and a high‑handed act in contravention of the Act. The petitioner submitted a representation dated 27 August 2021 to the first respondent highlighting the discriminatory act, but no affirmative action has been taken, jeopardising his education, leading him to approach the Madras High Court for relief., Learned counsel appearing for the petitioner submits that the objects of the Act are to ensure free education for children belonging to weaker sections by recognizing their fundamental right to compulsory primary education. The fourth respondent’s failure to provide uniforms, notebooks and other study materials is a direct affront to the provisions of the Act. The Madras High Court’s attention was drawn to a circular dated 29 November 2021 issued by the Private Schools Fee Determination Committee. Counsel further submits that a student admitted under the 25 % quota is entitled to free education, which includes not only tuition fees but also fees for uniform, notebooks and study materials, as these are directly related to education and fall within Section 3 of the Act. The Court was also drawn to the proceedings of the third respondent dated 2 March 2021, wherein instructions were issued to the fourth respondent school to ensure admission of students under the 25 % quota and to provide facilities such as textbooks, uniforms, library, information, communication and technology facilities, extra‑curricular and sports without discrimination. The fourth respondent’s reply to the third respondent claimed no discrimination between quota‑admitted children and others. In spite of this assurance, fees for uniforms, notebooks and study materials were demanded from the petitioner, in stark violation of the Act. Accordingly, it is prayed that the first respondent be directed to give suitable instructions to all schools, particularly the fourth respondent, based on the petitioner’s representation regarding fee collection for students admitted under the 25 % quota., Learned Additional Advocate General appearing for respondents 2, 3 and 5 submits that only tuition fees, which are necessary for imparting education to students of weaker sections, are reimbursed by the State Government as mandated by the Act. He emphasizes that reimbursement is limited to tuition fees fixed by the Fee Determination Committee and is payable to schools for students admitted under the 25 % quota, as provided under section 12(1)(c) of the Act. Any other fees not determined by the Fee Determination Committee are not payable by the Government and must be borne by the students; therefore, the fee demanded for uniform, notebooks and study materials should be paid by the petitioner and the State cannot be directed to pay such fees. He further submits that, in the absence of any express provision in the Act for payment of fees other than tuition fees, the Government’s reimbursement of tuition fees is proper. Accordingly, he prays that the writ petition be dismissed., Relying upon the counter‑filing, learned Government Advocate appearing for the first respondent submits that directions were already issued by the Madras High Court, by order dated 10 January 2020 in W.P. No. 6005 of 2020, directing the first respondent to consider the petitioner’s representation. An enquiry was conducted by the first respondent, during which personal hearing was afforded to the petitioner as well as respondents 3 and 4. In continuation, the first respondent, by its communication dated 17 August 2021, called upon the fourth respondent to implement, in substance, the mandate contained in the Act. Since the petitioner’s representation has already been considered pursuant to the Madras High Court’s directions in W.P. No. 6005 of 2020, the present writ petition seeking the same relief is barred by res judicata and therefore deserves to be dismissed in limine., Learned counsel appearing for the fourth respondent school submitted that, as per the mandate contained in the Act, the fourth respondent provides reservation of 25 % seats for students belonging to weaker sections of society. He further submitted that, after the Government reimburses tuition fees fixed by the Fee Determination Committee, the balance amount required for imparting education—fees for uniform, notebooks and study materials—not being paid by the Government, the fourth respondent is bound to collect the same from the students. Counsel also submitted that if the mandate of the Act is to be followed, it is the State or the Centre that should bear the cost of these additional fees, and the State Government cannot shirk its responsibility and shift the cost onto the fourth respondent, which is not the intention of the provision. Moreover, it is the duty of the State Government or the Local Authority to provide learning material to children as provided under sections 8 and 9 of the Act, and if any fees are charged by the fourth respondent for such material, the State Government must bear those expenses and they cannot be passed on to the school., The Madras High Court paid its undivided attention to the submissions advanced by the learned counsel on either side and perused the materials on record as well as the various provisions of the Act to which the Court’s attention was drawn., The Right of Children to Free and Compulsory Education Act was enacted keeping in mind the crucial role of universal elementary education, which strengthens the social fabric of democracy by affording equal opportunities. The objects and reasons that led to the enactment of the Act reveal that the Directive Principles of State Policy, enumerated in the Constitution, mandate all States to provide free and compulsory education to all children up to the age of fourteen years. The vision of the Act is evident from the fact that school drop‑outs primarily pertain to children from weaker sections and disadvantaged backgrounds, and the Act was enacted to achieve learning for them. Thus, the Act is a benevolent piece of legislation aimed at providing education to all children for their future benefit., Elementary education is defined under section 2(f) of the Act as education from first class to eighth class., Section 2(d) defines a child belonging to a disadvantaged group as a child belonging to a Scheduled Caste, Scheduled Tribe, socially and educationally backward class, or any other group having disadvantage owing to social, cultural, economic, geographical, linguistic, gender or other factors, as may be specified by the appropriate Government by notification., Section 2(e) defines a child belonging to a weaker section as a child whose parent or guardian’s annual income is lower than the minimum limit specified by the appropriate Government by notification., Section 3 prescribes the right of a child to free and compulsory education and reads as follows: (1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education. (2) For the purpose of sub‑section (1), no child shall be liable to pay any fee, charge or expense which may prevent him or her from pursuing and completing elementary education. (Emphasis supplied)., From the above provision, it is manifestly clear that a child falling under sections 2(d) and 2(e) and who is between the age of six and fourteen years is entitled to free compulsory education., Section 8 prescribes the duties of the appropriate Government, which are pivotal to the present case, and reads as follows: The appropriate Government shall— a) provide free and compulsory elementary education to every child; provided that where a child is admitted by his or her parents or guardian in a school other than one established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian shall not be entitled to claim reimbursement of expenditure incurred on elementary education in such other school. Explanation: The term “compulsory education” means the obligation of the appropriate Government to (i) provide free elementary education to every child of the age of six to fourteen years; and (ii) ensure compulsory admission, attendance and completion of elementary education by every child of that age; and b) ensure availability of a neighbourhood school as specified in section 6; c) ensure that children belonging to weaker sections and disadvantaged groups are not discriminated against or prevented from pursuing and completing elementary education on any grounds; d) provide infrastructure including school building, teaching staff and learning equipment; e) provide special training facilities specified in section 4; f) ensure and monitor admission, attendance and completion of elementary education by every child; g) ensure good‑quality elementary education conforming to the standards and norms specified in the Schedule; h) ensure timely prescribing of curriculum and courses of study for elementary education; and i) provide training facilities for teachers. (Emphasis supplied)., A conjoint reading of section 3(1) and section 8 clearly reveals that not only is the State Government bound to provide free and compulsory education to children prescribed under sections 2(d) and 2(e), but it is also the duty of the State Government to provide infrastructure, teaching staff and learning equipment. A pari materia provision exists under section 9 regarding the duties of the Local Authority., Section 12 prescribes the extent of a school’s responsibility for free and compulsory education and reads as follows: (1) For the purposes of this Act, a school— a) specified in sub‑clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein; b) specified in sub‑clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty‑five per cent; c) specified in sub‑clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty‑five per cent of the strength of that class, children belonging to weaker sections and disadvantaged groups in the neighbourhood and provide free and compulsory elementary education till its completion. Provided further that where a school specified in clause (n) of section 2 imparts pre‑school education, the provisions of clauses (a) to (c) shall apply for admission to such pre‑school education. (2) The school specified in sub‑clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub‑section (1) shall be reimbursed expenditure incurred by it to the extent of per‑child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in a manner prescribed; provided that such reimbursement shall not exceed per‑child expenditure incurred by a school specified in sub‑clause (i) of clause (n) of section 2. Further, where such school is already under obligation to provide free education to a specified number of children because it has received land, building, equipment or other facilities free of cost or at a concessional rate, it shall not be entitled to reimbursement to the extent of such obligation. (3) Every school shall provide such information as may be required by the appropriate Government or the local authority., It is evident from section 12 that where a school is receiving grants‑in‑aid from the Government, such school is not entitled to reimbursement, whereas for other schools, reimbursement is permissible to the extent of per‑child expenditure incurred by the State or the actual amount charged from the child, whichever is less., From a reading of the aforesaid provisions in tandem, it transpires that it is the duty of the Government to provide free and compulsory education to a child belonging to weaker sections of society or disadvantaged groups, as provided in sections 2(d) and 2(e), and that the Government must also provide all infrastructure and learning equipment necessary for such education under the Act., It is undisputed that the tuition fees charged by the fourth respondent have been reimbursed. The amount not reimbursed relates to fees charged for uniform, notebooks and reading materials, for which the fourth respondent has called upon the petitioner to pay. Since the petitioner has not paid these fees, the uniform, notebooks and study materials have not been provided, and the petitioner is only allowed to sit in the class., The question whether fees for uniform, notebooks and study materials are reimbursable for a child admitted in a school under the 25 % quota, where the school falls under section 2(n)(iv) of the Act, is the issue for consideration in the present petition., The fourth respondent school is a private unaided school recognized by the State and is providing compulsory education to children belonging to weaker sections or disadvantaged groups as provided under sections 2(d) and 2(e). Accordingly, to the extent of per‑child expenditure incurred by the State, the school is to be reimbursed by the State for the children educated under the 25 % quota., In this regard, sections 3(1) and 3(2) of the Act assume significance, as they mandate that a child provided with free and compulsory education under the Act shall not be liable to pay any fee, charge or expense, meaning that the State must bear all expenses incurred by the child in pursuing education. Therefore, the contention of the learned Additional Advocate General that there is no express provision in the Act requiring the State to bear all expenses towards compulsory education is wholly misconceived. It should also be noted that the State’s duty to provide compulsory education under section 8 includes the provision of learning equipment. In effect, learning equipment refers to the equipment used by the school and the students to enrich knowledge through education., From a careful perusal of section 12(2) coupled with the duty of the State and the Local Authorities to provide compulsory education as prescribed under sections 8 and 9, it is evident that the expenditure incurred by a school for a child admitted under the 25 % quota shall be reimbursed to the school to the extent of per‑child expenditure incurred by the State or the actual amount charged from the child, whichever is less., It is not the case of respondents 2, 3 and 5 that the amount charged by the fourth respondent exceeds the per‑child expenditure incurred by the State. Accordingly, the State, in coordination with the Central Government, must share the expenditure for providing compulsory education to children belonging to weaker sections and disadvantaged groups. The State cannot, as an after‑thought after the Act’s commencement, claim that only tuition fees are reimbursable and other fees are not to be borne by the State., In this regard, the Madras High Court in St. Anne’s Girls Higher Secondary School v. The Secretary (2012 (3) MLJ 257 (Mad)) has categorically held that any fee or charge levied on a child amounts to preventing the child from pursuing education, which is contrary to the intent of the enactment and frustrates the legislation., To achieve the object of the Act, it has been mandated that the Government should establish schools in every neighbourhood so that the Parliament’s intention of educating every child may be fulfilled. However, it should not be forgotten that a parent belonging to a weaker section or disadvantaged group cannot compel the State to pay fees by placing his child in a private institution under the 25 % quota that charges fees above the per‑child expenditure incurred by the State in State‑run schools; the Act clearly mandates that reimbursement is only to the extent of per‑child expenditure incurred by the State., In the present case, it is not the case of respondents 2, 3 and 5 that the amount charged by the fourth respondent school exceeds the per‑child expenditure incurred by the State; therefore, the amount incurred for a child admitted in a school run by the State would be entitled to reimbursement to the fourth respondent school. The specific case projected by the learned Additional Advocate General is that only tuition fees are reimbursable and no other fees are reimbursable, and such fees must be borne by the parents., Further, the most important aspect that the Madras High Court wishes to stress is that providing compulsory education by admitting a student under the quota of the Act is not limited to reimbursing tuition fees alone. A child’s education is not confined to classroom attendance; it is a continuing process carried out at home through assignments given by teachers, which require notebooks, textbooks and other study materials—learning equipment necessary for every child to enrich knowledge. If the contention of the learned Additional Advocate General that State reimbursement is limited to tuition fees alone is accepted, it would undermine and frustrate many provisions of the Act, rendering its benevolent purpose insignificant., Furthermore, it should not be forgotten that mere reimbursement of tuition fees alone to the school does not encompass the full scope of imparting education to a child as envisioned under the Act. The Act envisions a wholesome education that lifts a child from ignorance and improves economic status, ensuring a bright future. If only tuition fees are reimbursable, as contended by the learned Additional Advocate General, many children from weaker sections admitted under the Act would be unable to continue their studies, rendering the Act unimplementable and frustrated., The State, being a welfare State, is bound to carry out its duties and responsibilities to its citizens in a manner that elevates the standard of knowledge and living. The welfare State must not remain merely on paper but must act to lift its citizens from ignorance to become educated and responsible. The welfare index of a State increases only if the future generation is educated in a way that enables them to stand on their own feet, thereby upholding the Parliament’s wisdom in enacting the Act for the upliftment of weaker sections and disadvantaged groups., In the present case, there is no dispute that the State has reimbursed the fourth respondent the tuition fee for the petitioner’s education. However, the other fees that fall within section 3(2) of the Act have not been reimbursed to the school, leaving the petitioner unable to continue education due to lack of uniform, notebooks and other reading materials. As held by this Court, uniform, notebooks, other reading materials and all necessary ingredients form an integral part of the education imparted under the Act. Accordingly, the first respondent should reimburse the entire amount due for the education of a child admitted under the 25 % quota, to the extent of per‑child expenditure incurred by the State, which includes tuition fees and all other fees chargeable to the child, so that the child receives free elementary education as mandated without bottlenecks., The limitation and scope of a school to provide education to a child under the 25 % quota is provided under section 12, which is undisputed. In the present case, the school is a private school that falls under section 2(n)(iv); therefore, the per‑child expenditure incurred for providing free and compulsory elementary education as specified in clause (c) of sub‑section (1) shall be reimbursed to the extent of per‑child expenditure incurred by the State or the actual amount charged from the child, whichever is less. Consequently, respondents 1, 2, 3 and 5 must provide the necessary reimbursement for the petitioner’s education and cannot abdicate responsibility by invoking section 12 to shift the burden onto the fourth respondent, which does not receive any grants‑in‑aid from the State as long as the amount charged is within the per‑child expenditure incurred by the State., It is not out of context for the Madras High Court to note that the third respondent issued proceedings dated 2 March 2021, wherein instructions were given to the fourth respondent school to ensure admission of students under the 25 % quota prescribed by the Act and to provide facilities such as textbooks, uniforms, library, information, communication and technology facilities, extra‑curricular and sports without discrimination. This communication has not been disputed by the learned Additional Advocate General. It shows that the third respondent gave a categorical direction to provide all facilities to the petitioner, indicating that reimbursement for the same would be provided by the State. Therefore, the contention of the learned Additional Advocate General that reimbursement is limited to tuition fees is wholly erroneous and misconceived and must be rejected insofar as the charged amount is within the per‑child expenditure incurred by the State.
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In the background of the undisputed position, as is evident from the materials available on record, the High Court is of the considered opinion that it is the duty of the State to provide free and compulsory education to the children specified under section 2 (d) and (e) of the Act by absorbing all the fees that would be payable for the child on its head and it is not for the child, admitted under the aforesaid quota to pay even a penny to get itself educated, as it is the bounden duty of the State under the Directive Principles of State Policy to provide free and compulsory education to children of weaker sections and disadvantaged groups as enumerated under the Constitution but within the framework of Section 12 (2) of the Act. In the above circumstances, there arises no necessity for the High Court to give a direction to the respondents 1 to 3 and 5 to consider and pass orders on the representation of the petitioner, but to issue an affirmative direction to the fifth respondent to reimburse all the expenses due and payable by the petitioner and all other children, similarly placed, who have been admitted under the twenty‑five percent quota provided under the Act without insisting for any payment from the said children. It is further directed that necessary instructions in this regard be issued not only to the officials of the Education Department, but also to all the schools not to claim any amount from the children so admitted but to lay a claim on the State and the State shall defray all the expenses towards the education of the children admitted under the twenty‑five percent quota. The fifth respondent is directed to issue necessary instructions in this regard to all its subordinates and also the respective schools within a period of two weeks from the date of receipt of a copy of this order., The writ petition is allowed with the aforesaid observations and directions. The fourth respondent is directed to provide all the materials, including uniform, notebooks, textbooks and all other reading materials to the petitioner forthwith without insisting on any payment from the petitioner and the fourth respondent shall make a claim on the State towards the amount payable under the aforesaid heads by the petitioner and the respondents 2, 3 and 5 shall reimburse the amount to the fourth respondent upon satisfaction and submission of relevant documents. Consequently, the connected miscellaneous petition is closed. There shall be no order as to costs.
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Honourable Justice Prakash Singh, J. Heard Sri Amol Kumar, Advocate assisted by Sri Shivanshu Mishra, learned counsel for the petitioner, Sri Vidyabhushan Pandey, learned counsel for the opposite party, and Sri S. P. Singh, learned Standing Counsel for the State., By means of the instant writ petition, the petitioner has prayed for quashing of the impugned order dated 22-11-2019 passed by the learned District Magistrate, Sultanpur, vide appeal No. 1333 of 2019 and Computer Case No. D 2019046800133, titled as Kallumal and another Vs. Krishna Kumar, while exercising powers under section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007., The factual matrix of the case is that on 16-07-1971, the grandfather of the petitioner, namely late Ramdhani, purchased a part of land of Gata No. 179 having area 2 Biswa vide sale deed, from Ram Dulare and Shiv Dulare, both sons of Jagrup, in favour of the opposite party No. 4 and thereafter, the rest part of the same Gata measuring 2 Biswa was purchased by the father of the petitioner on 17-07-1971, out of the income of the Hindu Undivided Family, in favour of his younger son, who was a minor at that period of time and thus, the same was purchased under the guardianship of his father. After purchase of the aforesaid land, the grandfather of the petitioner constructed a house over the said land with the earnings of the HUF and was living in the same house. In between, the younger brother of opposite party No. 4 expired and thus, the property owned by late Om Prakash was devolved to opposite party No. 4 and the children of opposite party No. 4, in equal shares. The private opposite parties have three sons and two daughters namely Rajendra Prasad, Krishna Kumar, Janardan, Sushila and Anjali. The widow of Rajendra Prasad remarried after his death and is living with her husband, whereas the minor son born out of the wedlock of Rajendra Prasad and Savita Devi is residing with the petitioner., On 16-08-2018, the petitioner married Rajpati in an Arya Samaj Mandir; she belongs to the Scheduled Caste community and thus the father of the petitioner was annoyed and never accepted the marriage. Due to the annoyance, an FIR was lodged against the petitioner to dissolve the marriage, whereafter the petitioner filed a case namely Writ Petition No. 25345 (M/B) of 2018 (Shrimati Rajpati and another Vs. State of Uttar Pradesh and Others), wherein an interim relief was granted in their favour, though later the same was disposed of., The private opposite parties filed an application before the learned Principal Judge, Family Court, Sultanpur under section 125 of the Criminal Procedure Code for grant of maintenance against the petitioner and his brother and the interim maintenance was fixed at Rs 8,000 per month, half of the amount to be given by the present petitioner., In the house in question, there was a shop which was let out by the father of the petitioner to Sadab and Izhar on a monthly rent of Rs 26,500, but the same was concealed while instituting an application under section 125 of the Criminal Procedure Code. Thereafter, the private opposite parties also filed an application for maintenance under section 7(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, wherein the Sub‑Divisional Magistrate passed an order in favour of the private opposite parties; the petitioner did not challenge the order and is paying the amount of maintenance to his parents each month., Thereafter, an appeal was filed before the District Magistrate on 14-12-2017, whereby the petitioner was directed to evict the house. The private opposite parties, vide sale deed dated 14-12-2017, sold out a part of the property of Gata No. 179 and being aggrieved, the petitioner filed a civil suit to declare himself a co‑sharer of one‑sixth share in the land in question, which is registered as Regular Suit No. 140 of 2019 (Krishna Kumar and Another Vs. Kallu Mal and Others)., On 13-03-2019, the father of the petitioner executed a gift deed of the property to Sushila and Anjali, who are the daughters of the executor and sisters of the petitioner, and the rest of the property was sold in favour of one Suresh Narotam Das. Being aggrieved, another suit was filed by the petitioner along with his minor son for setting aside the gift deed dated 08-02-2019 and the sale deed dated 13-03-2019, vide Regular Suit No. 944 of 2019. The petitioner is still residing in one portion of the house, but the Sub‑Divisional Magistrate and the Appellate Authority, without application of judicial mind and without considering the evidence in the proper perspective, passed the impugned order directing the petitioner to evict the house. Thus, the petitioner, being aggrieved, has filed the instant petition., Contention of learned counsel for the petitioner is that, admittedly, the petitioner is son of the private opposite parties and even assuming that the property in question belongs to the private opposite parties, the petitioner, being a son, is entitled to one‑sixth part of the property; therefore, without considering these facts, the order for eviction has been passed while exercising power under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007., He argued that the learned District Magistrate exceeded his jurisdiction while deciding the appeal, thereby passing an order of eviction and dispossession. He emphasized that Section 2(b) of the Act, 2007, which includes provision for food, clothing, residence and medical attendance and treatment, has never been denied by the petitioner to his parents at any point of time. He further added that the appellate court failed to appreciate that the property owned by the father of the petitioner is an ancestral property., Further contention is that under the proceedings of Section 125 of the Criminal Procedure Code, maintenance has already been fixed by the court at Rs 8,000 per month, of which Rs 4,000 per month is to be paid by the petitioner, and there is also income of Rs 26,500 per month to the opposite parties from a shop let out by the father of the petitioner., Submission is that, in fact, the story is otherwise as the father of the petitioner was annoyed with the marriage of the petitioner because his wife belongs to the Scheduled Caste community, which is the root cause of initiating legal proceedings against the petitioner for evicting him from the house and to dislodge the marriage. He submits that the petitioner takes care of his parents on each occasion prior to the marriage and, due to the annoyance of his father, several cases have been lodged against him and he is running from pillar to post for doing parivar., In support of his contentions, he has placed reliance on a case reported in Manu/UP/1742/2019, Randhir Singh Vs. District Magistrate, Faizabad and Others, and has referred to paragraphs 24, 28 and 29 of the aforesaid judgment, which are extracted hereinunder: 24. The question is whether respondent No. 3, who is daughter‑in‑law of the petitioner, has a right to reside in the house, which is self‑acquired property of the petitioner against the wishes of the petitioner, in view of the provisions of the 2017 Act read with Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014. 28. While passing the impugned order, the District Magistrate went through the enquiry report submitted by the Sub‑Divisional Magistrate and, on finding that the petitioner, in spite of having five rooms in the house, is living with his elder daughter‑in‑law of his own sweet will; the matrimonial dispute between the petitioner’s son and respondent No. 3 is pending; and the petitioner has not produced any evidence which could establish that respondent No. 3 has restrained the petitioner from living in the other five rooms of the house. In the backdrop of the aforesaid fact, the District Magistrate recorded specific findings of fact on the basis of cogent material on record and the judgment relied upon by the learned counsel for the petitioner is not applicable under the facts and circumstances of the case. 29. From the perusal of the impugned order, it reflects that the District Magistrate, on the basis of the enquiry report submitted by the Sub‑Divisional Magistrate, recorded a specific finding that there is no evidence on record which establishes that respondent No. 3 is trying to restrain the petitioner from living in the other five rooms of the house. In fact the petitioner is residing with his elder daughter‑in‑law of his own sweet will at Faizabad. In order to protect the interest of the petitioner as a senior citizen, the District Magistrate specifically directed the concerned police station to see both the parties from time to time and it is also expected that the parties live in a congenial atmosphere without interfering in each other’s peaceful life., Referring to the aforesaid, he submits that the Division Bench of this court has held that since the senior citizen, leaving their house, was residing somewhere else whereas there was space to live and none had restrained them to live in the house, thus no interference is warranted. He submits that the case of the petitioner is also covered by the ratio of the above judgment as he is residing in one room of the house and has never restrained his parents to live there., Concluding his arguments, he submits that this is a peculiar case where the parents are not in fact aggrieved but the son is being harassed through no fault of his own. He submits that the father of the petitioner, namely Kallu Mal, died and now the greedy sisters and their husbands are trying to sell out the property, which is why they are engaging in parivar in the matter, yet the petitioner and his wife are residing in one portion of the house on the first floor and one of the shops beneath his room, which is under his possession, and the rest of the house is in the possession of the private opposite parties. He added that it is not the intent of the Act to dislodge or harass the son but to protect the interest of the aged parents, which in the present case is not applicable. He thus submits that the private opposite parties did not come with clean hands before the appellate authority as well as before the Sub‑Divisional Magistrate and therefore the impugned orders suffer illegality and infirmity., Per contra, learned counsel appearing for the opposite parties has opposed the contentions aforesaid and submits that no substantial or legal ground has been disclosed by the learned counsel for the petitioner and only factual dispute has been raised. He added that the father of the petitioner, namely Kallu Mall, was about 75 years old and his mother, Samtula Devi, was about 68 years of age at the time of the alleged incident and now Kallu Mall is no more. Further, he submitted that the petitioner and his wife beat his parents brutally and abused them and because of the unbearable harassment perpetrated by the petitioner and his wife, the father and mother, who were of old age and sick and infirm, felt helplessness and pain. He added that, facing trouble at every point of time, the father and mother moved an application before the Sub‑Divisional Magistrate, which was decided vide order dated 08-07-2019 and thereafter an appeal was instituted wherein an order was passed on 22-11-2019., The operative portion of the order dated 22-11-2019 is quoted hereinunder: 17. Referring to the aforesaid, he submits that there is no erroneousness in the order passed by the appellate authority and, considering the facts and circumstances of the case and the law prevailing thereof, the order with respect to eviction of the petitioner has rightly been passed., He further submits that, as far as the claim of the petitioner is concerned that he is a co‑sharer of House No. 778, from which eviction has been ordered by the learned District Magistrate, it is in fact not correct as the petitioner does not fall within the category of co‑sharer as per section 6 of the Hindu Succession Act. With the intention to claim his right as co‑sharer, the petitioner made several kinds of forgery and, when he could not succeed, prepared a forged will deed executed by late Om Prakash in the year 1992. He added that the petitioner committed all kinds of forgery to continue residing in the house of his father, but could not substantiate the same. It is also added that the petitioner is a person of criminal character and has no respect for his parents and, moreover, he misbehaved with them in course of grabbing the property and, once it became impossible to live with the petitioner, the proceedings under the Act, 2007 were invoked by the opposite parties, whereupon the opposite parties rightly passed the orders. He also added that the petitioner has beaten his father and mother several times and they have received injuries, which is also evident from the CCTV camera installed., Further submission is that learned trial courts have passed the impugned orders after thoroughly considering the facts and circumstances of the case and after concluding that the opposite parties No. 4 and 5 are being ill‑treated by the petitioner and his wife and it has become impossible for the parents to live in the same house along with them. He added that there is no unlawfulness or erroneousness in the order passed by the Sub‑Divisional Magistrate or the appellate court. Therefore, he submits that there is no merit in the instant petition and the writ petition is liable to be dismissed., Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it emerges that the petitioner and his wife are living in the house of his parents. From the application instituted by opposite parties No. 4 and 5, it is evident that the petitioner used to beat his father and mother, who were of old age, and he was also not properly maintaining them. Further, this incident is said to happen usually with opposite parties No. 4 and 5 and therefore, being aggrieved, they moved an application under section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. After the aforesaid application, the Sub‑Divisional Magistrate concerned passed the order on 08-07-2019 with the following directions., Being aggrieved with the order dated 08-07-2019, an appeal was instituted by opposite parties No. 4 and 5, wherein the appellate court admitted the appeal and set aside the order passed by the Sub‑Divisional Magistrate, directing the petitioner to evict the house of opposite parties No. 4 and 5 within a period of 45 days from the date of receipt of the order and, in case of non‑eviction, directing that the same shall be evicted forcibly with the help of the local police., It has been stated in many words by the petitioner that he is living in a room and there is one shop in his possession and the rest of the part of the house is in the possession of his mother and sister. It was also submitted that since the petitioner performed marriage with a lady of Scheduled Caste and, being annoyed, the parents started the proceedings for evicting the house of opposite parties No. 4 and 5 and no cruelty or injury has ever been caused by the petitioner or his wife., Before any discussion or conclusion in this matter, it is essential to look into the object of promulgating the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Act, 2007, namely the Maintenance and Welfare of Parents and Senior Citizens Bill, 2007, was introduced in Lok Sabha on 20-03-2007 and the objective of the Bill was to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India and for matters connected therewith or incidental thereto. It is for the maintenance of the parents and to provide an appropriate mechanism, which is need‑based maintenance to the parents and senior citizens including medical facilities and institutionalising a suitable mechanism for the protection of life and property of older persons and old‑age homes in every district., It is an established fact that the family is the most desired environment for senior citizens and parents to lead a life of security, care and dignity and, keeping this fact in view and to ensure that children perform their moral obligation towards their parents, the Act, 2007 aims to create an enabling mechanism for older persons to claim need‑based maintenance from their children., So far as the definition of maintenance is concerned, it has been envisaged under section 2(b) of the Act, 2007, which says that maintenance includes provisions for food, clothing, residence and medical attendance and treatment. If it is seen in context with the present case, it is evident that opposite parties No. 4 and 5 are the house owners, wherein their son and daughter‑in‑law are residing in a room and one shop is also in their possession, which is the source of their livelihood. Though it has been alleged as a factual matter that the house in question has been sold out on the instigation of the sisters and brothers‑in‑law of the petitioner, without going into this factual dispute, it remains undisputed that the petitioner is residing in a room. It is also a fact that at this stage the opposite party No. 4, i.e., the father of the petitioner, has died and only opposite party No. 5, i.e., the mother of the petitioner, is alive. While a bare reading of section 4(3) of the Act, 2007, it is evident that the obligation of the children to maintain his/her parents extends to the needs of such parents, either father or mother or both, so that they may lead a normal life., Section 4(3) of the Act, 2007 is quoted hereinunder: “(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.” The explanation and meaning of section 4(3) can be more particularly derived from the heading that says maintenance of parents and senior citizens, meaning thereby that the maintenance of parents and senior citizens so far as they can lead a normal life is to be fulfilled. The present petitioner is residing in a room and one more shop is in his possession and the rest of the house is in possession of his late father now the mother; therefore, it could not be said that there is any further need regarding residence/house for the parents of the petitioner, especially when the father is no more and, being the son, he is residing in one of the rooms and the mother is residing with her daughters., Taking note of the fact that as per the social structure, sometimes a son may not be in a position to maintain the parents, as particularly in the present matter, the petitioner is residing in one room while other rooms are available for others; therefore, it is needed to revisit the whole scenario as to whether the petitioner is actually avoiding maintaining the parents., This court has also noticed the fact, as was contended during the arguments, that the sister of the petitioner is colluded with the mother and is trying to sell out the property in question as it is valuable property and therefore they tried to oust the petitioner; the hurdle is that once he remains in one room of the said house, no one will purchase the same., Further, this court is of the considered opinion that a Tribunal under Chapter II of the Act, 2007 cannot direct eviction of a senior citizen from the property, though the Tribunal can direct the children and relatives to make available a residence to such senior citizens in pursuance of an application filed under the said chapter. It further emerges that the District Magistrate, as an appellate authority under the Act, 2007, can ensure that no one should hinder a senior citizen from enjoying the property as per his need and that eviction is the last step, where such authority finds that the need of a senior citizen is not being fulfilled. The case in hand is that the petitioner is living in one room with his wife and is not hindering the peaceful living of the parents in another part of the house; therefore, as far as the object of the Act, 2007 is concerned, it is not hampered by the petitioner., Further, the procedure of eviction is not on par with the procedure prescribed in the Civil Procedure Code, where rights and titles are determined, as the provisions of the Act, 2007 are for ensuring the needs of senior citizens and must be handled carefully so that the structure of the family may not be disrupted., In view of the aforesaid submissions and discussions, the order passed by the appellate authority, as far as the eviction of the petitioner is concerned, is not sustainable in the eyes of law., Consequently, the impugned order dated 22-11-2019 passed in Appeal No. 1333 of 2019 is hereby quashed., Liberty is given to opposite party No. 5 (mother of the petitioner) to move an appropriate application, if any hindrance is made, in furtherance of her need for residence., The petitioner is also directed not to cause any inconvenience to opposite party No. 5 in the house in question., With the aforesaid observations, the instant petition is hereby disposed of.
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Guidelines for Designation of Senior Advocates by the Supreme Court of India, 2023. These Guidelines shall be called “Guidelines for Designation of Senior Advocates by the Supreme Court of India, 2023”., All matters relating to the designation of Senior Advocates in the Supreme Court of India shall be dealt with by a Permanent Committee to be known as the Committee for Designation of Senior Advocates., The Committee for Designation of Senior Advocates shall consist of the Chief Justice of India as Chairperson, two senior‑most Judges of the Supreme Court of India, the Attorney General for India, and a member of the Bar nominated by the Chairperson and the members referred to in (a) to (c) above., The Committee shall meet at least twice in every calendar year., The Committee shall have a permanent secretariat. The composition of the Secretariat will be decided by the Chief Justice of India in consultation with the members of the Committee., The Chief Justice of India or any Judge of the Supreme Court may recommend in writing the name of an advocate for designation as a Senior Advocate if, in their opinion, the advocate primarily practices in the Supreme Court and should be designated by virtue of ability, standing at the Bar, or special knowledge or experience in law., The Secretariat of the Committee shall initiate the process for designation of Senior Advocates at least once every year by inviting applications from Advocates‑on‑Record or Advocates for designation as Senior Advocates., The notice inviting applications from Advocates‑on‑Record or Advocates shall be published on the official website of the Supreme Court of India. In addition, intimation will be given to the Supreme Court Bar Association and the Supreme Court Advocates‑on‑Record Association., At least twenty‑one days shall be given to applicants to submit their applications. An Advocate‑on‑Record or Advocate seeking designation as a Senior Advocate must apply in the format attached to these Guidelines as Annexure‑A., The conditions on which Advocates shall be eligible for designation as Senior Advocates are: (i) at least ten years’ standing as an Advocate; or ten years’ combined standing as an Advocate and as a District and Sessions Judge or as a Judicial Member of any Tribunal in India whose qualification for eligibility for such appointment is not less than that prescribed for appointment as a District Judge; (ii) practice mainly in the Supreme Court (advocates with domain expertise before specialized Tribunals may be given concession regarding the extent of appearances in the Supreme Court); and (iii) attainment of the age of forty‑five years, unless the age limit is relaxed by the Committee or the name has been recommended by the Chief Justice of India or a Judge of the Supreme Court., On receipt of applications from Advocates‑on‑Record or Advocates and/or recommendations from Judges of the Supreme Court, the Secretariat will compile relevant data and information regarding the reputation, conduct and integrity of the Advocate(s) concerned, including the information furnished by the Advocate(s) in the prescribed format (Annexure‑A). The Secretariat may also collect information from other sources as decided by the Committee., The Secretariat will publish the proposals received for designation on the official website of the Supreme Court and invite suggestions or views of other stakeholders on the proposals., At least fifteen days shall be given to other stakeholders to provide their suggestions or views on the proposed designation., After compilation of the database and additional information collected pursuant to the directions of the Committee, the Secretariat shall present the proposals before the Committee for scrutiny., The Committee will examine each application in the light of the data provided by the Secretariat and make its overall assessment on the basis of a point‑based format as follows: 1. Number of years of practice of the applicant‑Advocate from the date of enrolment (ten points for ten years of practice and one point for each additional year, subject to a maximum of twenty points). 2. Judgments reported and unreported (excluding orders that do not lay down any principle of law); pro bono work done by the Advocate; domain expertise (such as constitutional law, inter‑state water disputes, criminal law, arbitration law, corporate law, family law, human rights, public interest litigation, international law, law relating to women). 3. Publication of academic articles, experience of teaching assignments in the field of law, guest lectures delivered in law schools and professional institutions connected with law. 4. Assessment of personality and suitability on the basis of an interview for a holistic assessment of the applicant., The Committee may short‑list the candidates to be selected for interview., All the names that are short‑listed for the interview, including those cleared by the Committee, will be placed before the Supreme Court of India., There shall be no voting by secret ballot except in an exceptional situation, for reasons to be recorded., All cases which are not favourably considered by the Supreme Court of India shall be reviewed or reconsidered after the expiry of two years from the date of the decision of the Supreme Court of India, following the procedure applicable at that time, provided that this will not prevent the Advocate from making an application to a High Court for designation as a Senior Advocate., All cases deferred by the Supreme Court of India for designation as Senior Advocate shall not be considered until the expiry of one year from the date of the decision of the Supreme Court of India. After that period, the Advocate may apply afresh in accordance with the procedure applicable on the date of the fresh application., Former Chief Justices and former Judges of the High Courts may at any time submit a letter of request to the Committee for designation as Senior Advocates., All letters of request of former Chief Justices and former Judges of the High Courts for designation as Senior Advocates shall be placed before the Supreme Court of India., Former Chief Justices and former Judges of the High Courts who have accepted or consented to any full‑time assignment will not be considered for designation as Senior Advocates as long as they hold that assignment., The final decision of the Supreme Court of India will be communicated individually to all the applicants., The Supreme Court of India may review its decision to designate a person as a Senior Advocate and recall the conferment of designation if the Advocate is found guilty of conduct that, according to the Supreme Court of India, disqualifies him from designation. The Supreme Court of India would give an opportunity of a hearing before any such action is taken., All questions relating to the interpretation or application of these Guidelines shall be referred to the Chief Justice of India, whose decision shall be final. The Chief Justice of India may issue directions for the removal of difficulties either in general terms or in a particular instance as the exigencies may require., The application form requires a recent passport‑size colour photograph (original) to be pasted, followed by details such as name of the applicant‑Advocate, date of birth, age (as on 01‑08‑2023), full address (office and residence), contact details (landline, cellphone, email), educational and professional qualifications, date, month and year of enrolment as an Advocate, enrolment number (with copy of enrolment certificate attached), number of years of practice from the date of enrolment, Bar Council where registered, whether registered as an Advocate‑on‑Record, AOR code number, number of reported judgments (excluding orders that do not lay down any principle of law) in the last five years where the applicant appeared as lead arguing counsel or assisting counsel, number of unreported judgments in the last five years, pro bono or amicus curiae work during the last five years, five synopses for evaluation (copies attached), whether the applicant is a first‑generation lawyer, articles or books published, experience of teaching, academic articles, guest lectures delivered in law schools or professional institutions connected with law, membership of the Supreme Court Bar Association or Supreme Court Advocates‑on‑Record Association, courts where the applicant is practising (Supreme Court of India, High Courts, District Courts, Lower Courts, Tribunals, etc.), tribunals where the applicant has specialised practice, nature of practice (e.g., civil, criminal, constitutional, taxation, labour, company, service, etc.), field of law or domain expertise (such as constitutional law, inter‑state water disputes, criminal law, arbitration law, corporate law, family law, human rights, public interest litigation, international law, law relating to women), whether the applicant had previously applied to the Supreme Court for designation and the current status, whether the applicant has applied to any other High Court and the current status, whether any First Information Report has ever been filed against the applicant and its current status, whether the applicant is a party to any civil, criminal or other litigation (including details of any arrest, prosecution, detention, fine, conviction, disqualification, or pending cases), whether any proceedings have been initiated or are pending before the Bar Council of India or State Bar Council, general state of health, and any other relevant information. The Advocate‑on‑Record hereby gives consent for being designated as Senior Advocate and verifies that the information furnished is true and correct to the best of his/her knowledge and belief, with no material concealed or suppressed. The applicant understands that furnishing false information or suppression of any factual information would render him/her unfit for designation as Senior Advocate., Applicants should read the instructions attached while filling up Annexure‑A., The list of reported judgments (excluding orders that do not lay down any principle of law) in the last five years, the list of unreported judgments, the list of matters in which the applicant has appeared as pro bono or amicus curiae, and details of five synopses, academic articles, books, teaching assignments and guest lectures should be provided in the prescribed formats annexed as Annexure‑A and Annexure‑A‑1. Every application‑cum‑consent letter or application for additional information must be made in English, typed or printed in Arial 14 point font, double‑spaced on both sides of A4 paper with an inner margin of about four centimetres on the top and left side. Documents accompanying the application should be numbered consecutively in an index in all sets of the application. All annexed documents must be accompanied by an index containing their details; the Registry may request supportive documents for verification. The name of the applicant must match exactly the name on the enrolment certificate; abbreviated names will not be accepted. The application should be presented as a paper book, duly tagged and indexed, not in spiral binding. All photocopies of accolades or testimonials must be legible and true copies of the originals, and English translations of any vernacular documents should be annexed. Ten identical sets of the application in paper‑book form should be filed. A recent passport‑size colour photograph (original) should be pasted on each copy, and an additional recent passport‑size colour photograph with the applicant’s name on the back should be provided in a separate envelope. A soft copy of the application together with Annexure‑A/Annexure‑A‑1 in searchable mode, along with the scanned photograph (in case of the application‑cum‑consent letter), should be submitted by e‑mail to cdsa.2018@sci.nic.in in addition to the hard copy.
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Petitioner through Ms. Mumtaz Ahmed and Mr. Satish Sharma, Advocates, versus Respondent through Ms. Kamna Vohra, Assistant Superintendent of Police (Criminal) with Mr. Mukesh Kr, Additional Public Prosecutor for the State and SI Shajid Hussain, Head Constable Harish Kumar, Police Station Malviya Nagar., The learned counsel for the petitioner submits that the marriage between the petitioners No. 1 and No. 2 was solemnised on 13‑06‑2022 in accordance with the Special Marriage Act. The copy of the marriage certificate issued by the Revenue Department, Government of NCT of Delhi, Office of the District Magistrate, Hauz Khas, South District is annexed on record as Annexure P1., It is submitted that petitioner No. 1 left her home as her parents and other family members were torturing and harassing her on account of her relationship with petitioner No. 2. Petitioner No. 1 filed a complaint before the Station House Officer, Malviya Nagar, Delhi as well as the Station House Officer, Masuri, Ghaziabad, Uttar Pradesh against the private respondents, however no action had been initiated in this regard., The learned counsel for the petitioners further submits that the father of petitioner No. 1 is a politically well‑connected person in Uttar Pradesh and is capable of influencing the State machinery to their detriment., There is an apprehension of physical harm from the side of the parents/family members of petitioner No. 1, who are arrayed as respondents No. 3 to No. 6 in this petition., Both petitioners are adults and have consented to the marriage mutually. The counsel also submits that it is the constitutional obligation of the police to ensure the safety of life, limb and property to the petitioners., The learned Additional Public Prosecutor for the State submits that the investigating officer visited the residence of petitioner No. 2 and recorded statements of his family members, who categorically stated that they have no knowledge of the whereabouts of petitioner No. 2. In fact, the mother of petitioner No. 2 had filed a missing‑person complaint at Police Station Malviya Nagar in this regard. The learned Additional Public Prosecutor also submits that the parents of petitioner No. 2 do not have any knowledge about petitioner No. 1 or about the marriage which is stated to have taken place between petitioners No. 1 and No. 2., Upon a query by the Delhi High Court, the learned counsel for the petitioners submits that the petitioners, post‑marriage, are living in various hotels and changing them frequently due to fear, and unless they are protected they will not be able to find peace or reside at a particular identified place., Ms. Kamna Vohra, Assistant Superintendent of Police (Criminal) for the State submits that, to allay the fear of the petitioners, the mobile numbers of the Station House Officer, Division Officer and Beat Officer(s) attached to Police Station Malviya Nagar will be provided so that, in case of any threat or emergency, the petitioners may contact these officials for help., The learned counsel for the petitioners states that they have taken a house on rent located within the jurisdiction of Police Station Malviya Nagar, Delhi and that the address will be provided to the Station House Officer, Division Officer and Beat Officer(s) during the course of the day., The learned counsel for the petitioners will further ensure that a correct amended memo of parties will be filed within two weeks from today, giving the correct particulars of the address of the petitioners as well as the respondents. Once it is filed, the same shall be taken on record., After hearing counsel from both sides, I am of the considered view that the State is under a constitutional obligation to protect its citizens, especially in cases where the marriage is solemnised between two consenting adults irrespective of caste or community. There is no dispute that in the present case the petitioners No. 1 and No. 2 are adults and the marriage certificate placed on record prima facie lends credence to their submission. The constitutional courts under our framework are empowered to pass orders to protect citizens in matters of this nature. Once two adults consent to live together as husband and wife there can be no interference in their lives from third parties, including their family. Our Constitution ensures this. It is not only the duty of the State but also its machinery and agencies that ensure law and order to guarantee that no harm comes to the citizens of this country., In view of the above, the police officials shall respond immediately to any call received from either petitioner regarding any incident of emergency or threat. The beat officer(s) of the concerned area shall visit the residence once in two days for the next three weeks to ensure the safety of the petitioners., With these observations the petition stands disposed of along with pending applications. A copy of this order shall be given dasti under the signatures of the Delhi High Court Master.
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Against the Order dated 28/10/2016 in Appeal No. 349/2015 of the Kerala State Consumer Dispute Redressal Commission, the petitioner is Mr. Lakshay Sawhney, Advocate; Ms. Karishma Rajput, Advocate; Mr. Jai Dogra, Advocate. The respondent is Mr. Jogy Scaria, Advocate; Ms. Priyam, Advocate. Dated 05 January 2023. This Revision Petition has been filed by the petitioner, the Life Insurance Corporation, challenging the order dated 28 October 2016 passed by the Kerala State Consumer Dispute Redressal Commission, Thiruvananthapuram, in Appeal No. 349 of 2015 filed by the Life Insurance Corporation., Vide such order, the Kerala State Consumer Dispute Redressal Commission dismissed the appeal filed by the Life Insurance Corporation and affirmed the District Consumer Forum's order dated 23 April 2015 passed in Complaint Case No. 570 of 2012 filed by the complainant, Dolly Jose, allowing the complaint and directing the opposite parties to pay Rupees Ten Lakhs Only to the complainant along with costs of Rupees Two Thousand Five Hundred Only within one month., The brief facts of the case are that the husband of the complainant, Smt. Dolly Jose, was a policy holder under Policy No. 777975414 of the Life Insurance Corporation. She was the nominee of the said policy. The sum assured of the policy was Rupees Ten Lakhs. The policy was a Double Accident Benefit policy. Her husband expired on 23 March 2011 in a train accident by falling down from the train. She submitted her claim before the Life Insurance Corporation and only the policy amount of Rupees Ten Lakhs was given. The complainant contended that she was entitled to Rupees Twenty Lakhs as per the policy because her husband had died in an accident, and she was also entitled to the Double Accident Benefit of Rupees Ten Lakhs. Consequently, the complainant filed a consumer complaint before the District Consumer Forum claiming such amount and compensation., The Life Insurance Corporation contested the complaint before the District Consumer Forum, and admitted the existence of the policy and payment of the basic sum assured of Rupees Ten Lakhs on 27 June 2011. However, it was stated that the complainant was not entitled to the Double Accident Benefit because the deceased was under the influence of alcohol at the time of the accident, which was exempted as per Clause 11(b)(i) of the policy conditions, and consequently the complaint was liable to be dismissed., The District Consumer Forum, vide its order dated 23 April 2015, allowed the complaint as mentioned above., Dissatisfied with such order, an appeal was filed by the Life Insurance Corporation before the Kerala State Consumer Dispute Redressal Commission. The State Commission, after hearing the parties and perusing the record, vide order dated 28 October 2016 dismissed the appeal with costs of Rupees Five Thousand., Hence, the present Revision Petition., The sum assured in the insurance policy was paid by the petitioner, the insurance company, but the Double Accident Benefit was not acceded to since the Certificate of Chemical Analysis pertaining to the blood sample of the deceased who had fallen down while travelling in the train revealed that ethyl alcohol to the level of 135.08 milligrams per 100 millilitres was found in such sample. Consequently, the insurance company relied upon Clause 11(b)(i) which provided that the insurer would not be liable to pay any additional sum if the disability or death of the life assured was caused by intentional self‑injury, attempted suicide, insanity or immorality, or whilst the life assured is under the influence of intoxicating liquor, drug or narcotic., In Baby Apoorva Rai versus New India Assurance Company Limited and Others, Consumer Case No. 401 of 2014, decided on 3 September 2015, the leave preferred by the complainant in similar circumstances where the death of the life assured on account of drowning in a swimming pool after he had consumed alcohol prior to his death was dismissed by this Commission. In the said judgment, it was also noted that according to Lyon's Medical Jurisprudence and Toxicology, the permissible limit for blood alcohol in India is 30 milligrams per 100 millilitres, although in many developed countries the threshold is higher., Earlier on 17 January 2022, and thereafter on 6 December 2022, opportunities were granted to the respondents to show the threshold limit according to any medically recognized journal for being classified as under the influence of alcohol when alcohol is detected in the body of the person concerned. No revised threshold limit could be placed by the respondents before this Commission., In any case, the quantity of alcohol found in the blood was four times more than the permissible blood alcohol limit in India according to the information in Lyon's Medical Jurisprudence and Toxicology., It is also settled law that in matters of insurance claims, courts cannot adopt a beneficial or welfare approach and must go strictly by the words used in the concerned insurance policy., In the case of Export Credit Guarantee Corporation of India Limited versus Garg Sons International, delivered in deciding Civil Appeal No. 1557 of 2004 along with other connected appeals on 17 January 2013, the Supreme Court of India deprecated the liberal attitude adopted by this Commission in awarding insurance claims in favour of the complainants by extending interpretation of the terms of the insurance policy beyond the words specified in the document itself. Consequently, the appeals against fifteen out of the seventeen respondents in whose favour the insurance claims had been allowed by this Commission, and who had not strictly fallen within compliance of the specific terms and conditions of the insurance policy, were allowed by the Supreme Court of India., The relevant extracts from the aforesaid decision of the Supreme Court of India are set out as below: It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties (Vide Surajmal Niwas Oil Mills (P) Limited versus United India Insurance Company Limited, MANU/SC/0814/2010). The insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are. Consequently, the terms of the insurance policy that fix the responsibility of the insurance company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of a commercial contract, for the reason that a clause in a commercial contract is bilateral and has been mutually agreed upon (see Oriental Insurance Company Limited versus Sony Cheriyan, MANU/SC/0495/1999, AIR 1999 Supreme Court 3252; Polymat India Private Limited versus National Insurance Company Limited, MANU/SC/1019/2004, AOR 2005 Supreme Court 286; Sumitomo Heavy Industries Limited versus Oil and Natural Gas Company, MANU/SC/0540/2010, AIR 2010 Supreme Court 3400; and Rashtriya Ispat Nigam Limited versus Dean Chand Ram Saran, MANU/SC/0327/2012, AIR 2012)., In Vikram Greentech (I) Limited and Another versus New India Assurance Company Limited, MANU/SC/0519/2009, Supreme Court 2493, it was held: An insurance contract is a species of commercial transaction and must be construed like any other contract to its own terms and by itself. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties (see also Sikka Papers Limited versus National Insurance Company Limited and Others, MANU/SC/0907/2009, AIR 11). Thus it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement., Even this Commission, in Liberty Videocon General Insurance Company Limited versus Shivbhajan Sahu and Another, National Consumer Disputes Redressal Commission Online No. 872 in an earlier Revision Petition No. 1871 of 2016 decided on 20 March 2018, set aside a judgment of the State Commission in which the insurance claim was allowed in favour of the respondent who was aged 81 years, even though the insurance premium towards such policy had been debited to his account and transferred to the insurance company by the concerned bank. This Commission held that since the terms and conditions of the insurance claim itself specified that only a person aged between five and 75 years was eligible to be a beneficiary of the scheme, the respondent who was already 81 years old at the relevant time was clearly ineligible to have any benefit, and even transfer of the premium amount to the account of the insurance company could not create any right of insurance in his favour. The decision of both the lower fora in the case was thereafter set aside by this Commission with the following observations:, Counsel for the petitioner, the insurance company, contended that orders of the fora below are not sustainable because they have totally ignored the relevant condition of the insurance policy. It is argued that as per the terms and conditions of the policy, the accidental group insurance cover could be extended only to persons aged between five years to 75 years. The fora below ignored the fact that the deceased at the time of becoming member of the group insurance scheme was more than 75 years of age. In support of his contention, counsel drew attention to the voter ID card of the insured in which, as on 01 January 2003, the age of the deceased Jhumak Lal Sahu, son of Ramadin, is shown as 70 years. It is argued that Jhumuk Lal Sahu became member of the subject insurance policy on 14 January 2014. Therefore, going by the age given in the voter ID card at the relevant time, Jhumak Lal was 81 years old. As such, in view of condition No. 17 of the general terms and conditions of the insurance contract, Jhumak Lal Sahu was not eligible for becoming member of the relevant group insurance policy., On perusal of the judgment of the State Commission, it is found that the State Commission rejected the plea of the petitioner, the insurance company, that deceased Jhumak Lal Sahu was not eligible for becoming member of the subject accident group insurance policy as he was 81 years old. The State Commission also ignored that the District Forum, on consideration of the voter ID card and the post‑mortem report, had concluded that at the time of becoming member of the policy, Jhumak Lal Sahu had already crossed the upper limit of eligibility on the basis of age., From the above stated facts, it is clear that Jhumak Lal at the relevant time when insurance cover was extended to him was 81 years old and not eligible for insurance. Respondent No. 2, the bank, despite the aforesaid fact, deducted the insurance premium and included his name in the group of persons covered under the subject insurance scheme. As it was a group insurance policy regarding which the details of the persons included were supposed to be sent by the bank to the insurance company, the petitioner, the insurance company, was not supposed to know about the details pertaining to the age of the insured. Thus, in my opinion, it is Respondent No. 2, the bank, who is guilty of carelessness and deficiency in service. So far as the petitioner, the insurance company, is concerned, it was justified in repudiating the claim., In view of the reasons stated above, I allow the revision petition of the petitioner, the insurance company, and set aside the impugned order so far as it holds the petitioner jointly and severally liable to pay the compensation awarded by the District Forum. The impugned order is modified to the effect that the amount of insurance claim and compensation awarded by the fora below shall be paid by Respondent No. 2, the bank., As a condition to the stay of execution, pursuant to the direction of this Commission, the petitioner has deposited fifty percent of the awarded amount with the Kerala State Consumer Dispute Redressal Commission. The amount so deposited shall be released to the petitioner with interest, if any, accrued., In view of the decision of the Supreme Court of India in Export Credit Guarantee Corporation of India Limited (supra) there can be no doubt that the forum which decides on an insurance claim cannot go beyond the specified terms and conditions specified within the words used in the policy or the relevant scheme, and cannot under the guise of a social welfare interpretation extend the meaning of those words artificially., In the present case, Clause 11(b)(i) had clearly excluded payment of the Double Accident Claim if the life assured were under the influence of intoxicating liquor, drug, narcotic, etc. The ethyl alcohol found in his blood sample (135.08 milligrams per 100 millilitres) was more than four times the permissible limit in India, as noted by this Commission in the case Baby Apoorva Rai (supra). Consequently, there is no scope for this Commission to come to any other conclusion as there remains no room to take any sympathetic view when the specific condition regarding the deceased not being under the influence of alcohol is found to have been violated., For the aforesaid reasons, the orders passed by the lower fora allowing the Double Accident Benefit to the complainant were untenable. Consequently, the revision petition is allowed after setting aside the orders passed by both the lower fora below.
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Date: 28.09.2020. Place: New Delhi. The Petitioners, public‑spirited social activists, are constrained to approach this Hon'ble Supreme Court of India under Article 32 of the Constitution of India in public interest, inter alia, beseeching this Supreme Court of India to lay down and issue appropriate guidelines outlining the broad regulatory paradigm within which media houses, i.e., broadcasters and electronic media, can exercise their rights under Article 19(1), so as to judicially regulate the same., The instant petition also prays for the establishment of an independent regulatory Tribunal, known as the Media Tribunal, to hear and expeditiously adjudicate complaint petitions against the Media Businesses filed by viewers or citizens., The petition raises important and substantial questions of law of national importance, which may be enumerated as follows: Whether news broadcasters and electronic media enjoy unfettered freedom of a much higher degree than that enjoyed by the citizens of the country and whether such freedom can only be subject to self‑regulation; whether misinformation, fake news, hate speech, propaganda, paid news, communal, indecent, aggressive, derogatory, sensational, scandalous and disproportionate reporting, incitement, etc., are covered under the right to freedom of the press emanating from Article 19(1)(a); whether regulation of news broadcasters and electronic media would amount to curtailing the freedom of the press if the same is done within the parameters specified in Article 19(2); whether Article 21 envisages the right of citizens to free, fair and proportionate media reporting; and whether there is a need for laying guidelines and setting up a judicial regulatory mechanism in respect of media houses., The principal issue before this Supreme Court of India is to bring about a balance between the right to freedom of speech and expression of the Media Businesses and the competing right to information of the citizenry under Article 19(1)(a), the right to reputation and the right to dignity under Article 21, as well as the interest of preserving peace and harmony in the nation., At the very outset, it is submitted that the freedom of speech and expression enjoyed by the Media Business is not unlimited and is subject to the restrictions imposed under Article 19(2). The present petition is not intended to curb the fundamental rights of the Media Business but to bring accountability for misinformation, inflammatory coverage, fake news, breach of privacy, etc., which the Media Business has indulged in with the aim of furthering its business, and to bring consequences for acting in a fashion contrary to constitutional goals and morality., The exercise of power by the electronic media without any accountability is severely detrimental to the due process of law and contrary to the rule of law. The Ministry of Information and Broadcasting, Union of India, being the nodal ministry, has totally failed in discharging its duties in implementing the undertaking of electronic media broadcasters to comply with the Programme Code in Rule 6 of the Cable Television Rules, 1994., The electronic media broadcasters are bound by the undertaking to comply with the Programme Code at the time of applying for permission to uplink or downlink their respective channels. Instead of serving the nation and working in the public interest, the media is afflicted with disseminating: (i) misinformation, fake news and propaganda; (ii) divisive and schismatic forces of communalism, ethnocentrism, bigotry, casteism, linguism and regionalism; (iii) indecent, sleazy, cheap, sensational, scandalous, immoral, inciting, defamatory and disproportionate reports; (iv) war‑mongering; and (v) superstitious, violent, backward and public‑disorder‑inducing attitudes, all of which are well beyond the periphery of the right to freedom of speech and expression guaranteed under Article 19(1)(a)., Article 51A of Part IVA of the Constitution provides the fundamental duties of every citizen, inter alia: to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish and follow the noble ideals which inspired our national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional diversities; to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of our composite culture; to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures; 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. Since the media is an aggregate of citizens, the same duties are a bounden duty of the media as well., Although Article 51A is not judicially enforceable by itself, it becomes enforceable through an expanding interpretation of Article 21, and any failure of the foregoing duties may be entertained as a public interest litigation under Article 32. The nature of reportage by electronic media, as enumerated above, negates the fundamental rights of the citizenry at large, namely the right to live with human dignity, the right to livelihood, the right to education, the right to know, the right to fair information and proportionate media reporting, as enshrined under Article 21, and is antithetical to the rights guaranteed under Article 19(1)(a). Such dominance of electronic media becomes subsidiary and inconsequential, falling under the mischief of arbitrariness and hitting Article 14 of the Constitution., It is submitted that this Supreme Court of India, as the ultimate sentinel, must protect and balance the rights of various stakeholders so that the fundamental rights of one class do not become subservient to the exercise of fundamental rights of another class. The rights of the many must supersede the rights of the few. The right to freedom of speech and expression enjoyed by electronic media broadcasters cannot trump the right to fair information enjoyed by the citizenry., There is no gainsaying that the Constitution of India does not specifically mention the freedom of the press. Freedom of the press is implied from Article 19(1)(a) and is therefore subject to the restrictions provided under Article 19(2). The power enjoyed by news broadcasters and electronic media is immense and without accountability to the law or the Constitution. Untrammeled power is prone to abuse, which is antithetical to the rule of law. The restrictions on electronic media must be placed at a higher footing than on the common citizen, in view of the fact that electronic media have a much larger reach and perform a public function by employing public airwaves., Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, during the Constituent Assembly debates on inclusion of the press in the proposed Article 13 (Article 19) of the Draft Constitution, 1948, stated: \The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of the freedom of the press at all.\, The Privy Council in Channing Arnold v. King Emperor, All India Reporter 1914 Privy Council 116, observed that \the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length the subject in general may go, so also may the journalist, but apart from statute his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.\ In Virendra v. State of Punjab, All India Reporter 1957 Supreme Court Cases 896, this Supreme Court of India held that the freedom of the press under our Constitution is not higher than that of an individual., In S. Rangarajan v. P. Jagjivan Ram, (1989) Supreme Court Cases 574, the Court observed that while movies enjoy the guarantee under Article 19(1)(a), there is a significant difference between movies and other modes of communication. Movies cannot function in a free marketplace like newspapers or magazines; they motivate thought and action, arouse visual and aural senses, and have a powerful impact on spectators. Consequently, prior restraint and censorship are deemed desirable and necessary for movies. The Court reasoned that, unlike movies, news broadcasters and electronic media have a reach into the houses of people, giving them untrammeled and unparalleled power to influence minds and ideas, and therefore must be subject to reasonable restrictions under Article 19(2)., In the pre‑Independence era, the media was a service to the cause of people's freedom and a great juggernaut of social change, reform and awakening, mobilising the masses and consolidating social consciousness for the freedom struggle. It was largely owned by freedom fighters such as Raja Ram Mohan Roy, Bal Gangadhar Tilak, Dadabhai Naoroji, Mahatma Gandhi, Jawaharlal Nehru, Dr. B.R. Ambedkar and others. Over time, with changes in media and society, the news broadcaster and electronic media have used their power to further business interests. Journalism has mutated from a mission to a profession, and the media has become a profit‑oriented business., The existing bodies for regulation of media, such as the Press Council of India (a statutory body) and the News Broadcasting Standards Authority (a self‑regulatory organisation), issue standards that are more in the nature of guidelines. Any broadcaster that does not comply with the undertaking to follow the Programme Code and the Advertising Code specified in the Cable Television Act and the Cable Television Rules is liable to be proceeded against, including cancellation of permission to uplink or downlink., Over one thousand television channels use the airwaves, which are public property, yet there is no organised and effective regulatory mechanism to adjudicate the challenges posed by broadcasters. The Supreme Court of India in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) Supreme Court Cases 161, examined the lacuna in broadcasting regulation and directed the establishment of an autonomous broadcasting authority to control and regulate the broadcasting media., Under the Indian constitutional setup, it is solely the judiciary that enjoys the privilege of self‑regulation, being independent and conferred with the same status by the Constitution. Equating the media business with the judiciary in terms of self‑regulation would strike at the independence of the judiciary and shake the foundations of the Indian constitutional scheme and democracy. Even the judiciary is not immune from regulation, being amenable to the Judges (Inquiry) Act, 1968., Although the United States Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), held that free speech can be restricted when it is directed to inciting imminent lawless action, the same test is not applicable in India to news broadcasters and electronic media today because of the lack of regulatory control., Mahatma Gandhi observed, \An uncontrolled pen serves but to destroy.\ The self‑regulation theory evolved by toothless bodies like the News Broadcasting Standards Authority is a sham that abuses the bona fide privilege conferred upon the media as the Fourth Pillar of democracy., The media, now a powerful business structure, must be regulated by constitutional norms and principles because the democratic principle expounds that all structures of power must be regulated for the good of all and to preserve the doctrine of equality enshrined under Article 14 of the Constitution of India. The whole self‑regulatory process makes the electronic media broadcaster a judge in his own case, thereby completely negating the rule of law., Regulation promotes the freedom or facility which is required to be regulated in the interest of all concerned. Regulation therefore means regulation in public interest and not contra‑public interest. The expression cannot be read as contra‑public interest but in the interest of the public (see Haryana State Electricity Board v. Suresh, (1999) Supreme Court Cases 601)., The Indian Telegraph Act, 1885 was the earliest enactment giving the Government power to control the establishment, maintenance and working of wireless apparatus. The Act, as amended by Act 15 of 1961, defined a telegraph as any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds for intelligence of any nature by wire, visual or other electromagnetic emissions, radio waves or hertzian waves, galvanic electric or magnetic means., The Privy Council in Channing Arnold v. King Emperor, All India Reporter 1914 Privy Council 116, observed that the freedom of the journalist is an ordinary part of the freedom of the subject and that the journalist's privilege is no higher than that of any other subject. In 1930, broadcasting was placed under the direct control of the Government of India. The Indian Wireless Telegraphy Act, 1933 made possession of a radio set without a licence an offence. In 1936, the Indian State Broadcasting Service became All India Radio, which was transferred to the Department of Communications in 1937. The Department of Information and Broadcasting came into existence in 1941 and became the Ministry of Information and Broadcasting after Independence in 1947. The Constituent Assembly debated the inclusion of the press in Article 13 (Article 19) of the Draft Constitution on 1 December 1948 and 2 December 1948. The Constitution of India came into force in 1950, making freedom of speech and expression a fundamental right under Article 19(1)(a). In 1951, the Government introduced a Press Bill to replace the objectionable features of the 1931 Act and to align it with the Constitution of independent India.
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After Independence, the restrictive regulations were either done away with or suitably modified and codified to meet the urges of a free press in a free country. The Cinematograph Act, 1952 came into force, bringing into place an apparatus for the censorship of films. This Act dealt with two separate matters: (a) the examination and certification of films suitable for public exhibition, and (b) regulation of cinemas including their licensing. Section 3 of the Act created the Censor Board or the Board of Film Certification. Any film intended for public exhibition was required to obtain a certificate from the Board sanctioning the film for restricted or unrestricted viewing. The guiding principles for certification of films under the Act echo the restrictions under Article 19(2)., The first Press Commission recommended the setting up of a Press Council to safeguard the freedom of the press and to encourage responsibility and public service among journalists. The Press Council Act was passed by Parliament in 1965 and the Press Council was set up on 4 July 1966. However, the Press Council was made a victim of the emergency and the Press Council Act, 1965 was repealed with effect from 1 January 1976 because it was deemed unable to carry out its functions. The press in India was until recently the only medium not under direct government control and could evaluate national policies critically. The Indian press is almost entirely privately owned and has been free in all decades since 1947, except for an interregnum of nineteen months between June 1975 and January 1977, when Prime Minister Indira Gandhi imposed the internal emergency and suspended press freedom. The government appointed the 1952 and 1978 Press Commissions to inquire into press laws and developments affecting the press., In 1965 the sole statutory quasi‑judicial body set up for media regulation in India is the Press Council of India. While it aims to preserve press freedom and improve standards, it has no power to impose punishments or enforce its directions for professional or ethical violations., In 1975 there was alleged abuse of television by the Government, leading to a political demand for television autonomy. After the emergency ended, the Government commissioned a white paper titled 'White Paper on the Misuse of the Mass Media during the Emergency', presented to Parliament in August 1977. Around the same time, a working group was constituted to look into autonomy for Akashvani and Doordarshan within the Government framework., The Press Council Act, 1965 was enacted by Parliament to bring about accountability of the press., In May 1982 the Advisory Committee headed by Mr. G. Parthasarathi, on Official Media attached to the Ministry of Information and Broadcasting, issued News Policy for Broadcast Media., The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 came into existence in September 1990 and came into force on 15 September 1997. The Act sought to free Akashwani (All India Radio) and Doordarshan from direct Government control and provides for the establishment of an autonomous corporation for electronic media., The Cable Television Network Rules, 1994 were enacted under the Cable Television Networks (Regulation) Ordinance, 1994. The Programme Code of the Rules lays down restrictions on the content of programmes and advertisements on cable TV. The Cable Television Networks (Regulation) Act, 1995 was enacted on 25 March 1995., In 2009 the Sub‑Committee of the Press Council of India submitted a report showing how corruption in media undermines democracy., On 30 July 2010 the Press Council of India released its 'Report on Paid News', recommending amendment of the Press Council Act to bring electronic media under its jurisdiction and to empower the Press Council of India., In 2011 the Ministry of Information and Broadcasting framed uplinking and downlinking guidelines, under which permissions for uplinking or downlinking of satellite TV channels are issued to broadcasters on the basis of their applications after receiving permission for uplinking from the Ministry., On 15 November 2013 the Sub‑committee of the Press Council of India submitted a report on issues related to paid news and sought the constitution of a statutory Media Council comprising eminent persons to examine all media content from print and electronic media with powers to take strong action against defaulters., The petitioners, both public‑spirited social activists, approach the Supreme Court of India under Article 32 of the Constitution of India in public interest, beseeching the Court to frame guidelines to regulate news broadcasters and electronic media in the absence of an effective legislative mechanism for checks and balances on the exercise of the right of freedom of speech and expression by news broadcasters., Petitioner No. 1 is a reputed filmmaker and producer who has produced nine films containing social issues and has received National Awards for three of his films, namely Shala, Fandry and Anumati. He is also a social activist involved in various social causes and has been vocal about issues pertaining to downtrodden sections of society. He has raised concerns with the authorities (Respondent No. 1) regarding falling standards and unfair reporting by several news channels and has filed a Public Interest Litigation seeking postponement or restraint on publishing reports by media in the celebrity actor’s mysterious death case, which is pending before the Bombay High Court., Petitioner No. 2 is a law‑abiding citizen of India, a civil engineer by profession and a social activist. He has a Post‑Graduate Diploma from the School of Government, MIT, Pune and is a member of its Advisory Board. He is the Chairman of Kharadi Residents Association and was instrumental in making Kharadi Society’s tank free from water mafia. He organized the Akhil Bharatiya Sahitya Sammelan, Solapur, 2006 and the Akhil Bharatiya Sahitya Sammelan, 2014, Saswad, Pune., Respondent No. 1 is the Ministry of Information and Broadcasting. It is the concerned wing for all matters related to regulation of content telecast on private satellite TV channels and transmitted or retransmitted through cable television network in terms of the Programme and Advertisement Codes prescribed in the Cable Television Networks (Regulation) Act, 1995 and the Cable Television Networks Rules, 1994., Respondent No. 2 is the Press Council of India, a statutory quasi‑judicial authority functioning as a watchdog of the press, adjudicating complaints against and by the press for violation of ethics and freedom of the press. The Council functions under the Press Council Act, 1978., Respondent No. 3 is the News Broadcasters Association (NBA), which represents private television news and current affairs broadcasters. It is the collective voice of news and current affairs broadcasters in India and presently has 26 leading broadcasters (comprising 70 channels) as members., Respondent No. 4 is the News Broadcasters Federation, an independent body set up by news broadcasters to consider and adjudicate complaints about broadcasts. On 9 November 2019 the self‑regulatory authority NBSA ordered English news channel Republic TV to air an unconditional apology for undermining NBSA’s authority in an ethical violations case; the channel did not comply, leading to involvement of the News Broadcasters Federation, which has no grievance resolution mechanism. Respondent No. 4 is apparently an association of over 50 news channels., Respondent No. 5 is the News Broadcasting Standards Authority, an independent body set up by the News Broadcasters Association to consider and adjudicate complaints about broadcasts., Respondent No. 6 is the Press Trust of India, a non‑profit cooperative owned by the country’s newspapers., It is submitted that since all the news broadcasters are members of Respondent No. 3 and Respondent No. 4 respectively, none of the broadcasters are required to be made parties in the present writ in individual capacity., It is submitted that there is no civil, criminal or revenue litigation involving the petitioners that could have a legal nexus with the issues involved herein. The petitioners are preferring the present petition in larger public interest and have no personal interest., The instant petition raises important questions of law of national importance, namely: I. Whether news broadcasters/electronic media enjoy unfettered freedom of a higher degree than that enjoyed by citizens and whether such freedom can only be subject to self‑regulation? II. Whether misinformation, fake news, hate speech, propaganda, paid news, communal, indecent, aggressive, derogatory, sensational, scandalous and disproportionate reporting, incitement, etc., are covered under the right to freedom of press emanating from Article 19(1)(a)? III. Whether regulation of news broadcasters/electronic media would amount to curtailing freedom of press or media if done within the parameters specified in Article 19(2)? IV. Whether Article 21 envisages the right of citizens to free, fair and proportionate media reporting? V. Whether there is a need for laying guidelines and setting up a judicial regulatory mechanism in respect of media houses?, In 1885 the earliest enactment was the Indian Telegraph Act, 1885, which gave the Government power to control the establishment, maintenance and working of wireless apparatus, with the Central Government having exclusive privilege of establishing, maintaining and working telegraphs. The Government’s continued monopoly over radio and television derives from this Act, as amended by Act 15 of 1961, which defined telegraph as any appliance, instrument, material or apparatus used for transmission or reception of signs, signals, writing, images and sounds by wire, visual or other electromagnetic emissions, radio waves or hertzian waves, galvanic electric or magnetic means. On 7 April 1914 the Privy Council in Channing Arnold v. King Emperor (AIR 1914 PC 116) observed that the freedom of the journalist is an ordinary part of the freedom of the subject. In 1930 broadcasting was placed under direct control of the Government of India and the Indian State Broadcasting Service began broadcasting. The Indian Wireless Telegraphy Act, 1933 dealt with possession of wireless apparatus and radio receivers not covered by the Telegraph Act, 1885, making possession of a radio set without a licence an offence. In 1936 the Indian State Broadcasting Service was renamed All India Radio, which in 1937 was transferred from the Department of Labour to the Department of Communications. In 1941 the Department of Information and Broadcasting came into existence and after Independence in 1947 became the Ministry of Information and Broadcasting. Before Independence the British Government allowed princely states to construct and use transmitters and to regulate fees. The Constituent Assembly debated Article 13 (Article 19) on freedom of speech and expression of the Draft Constitution on 1 and 2 December 1948. Section 129 of the Government of India Act dealt with broadcasting functions entrusted to provincial governments or rulers, subject to conditions imposed by the Federal Government., The Constitution of India came into force in 1950, making freedom of speech and expression a fundamental right under Article 19(1)(a). In 1951 the Government introduced a Press Bill to replace the objectionable features of the 1931 Act and align with the constitution of a free India. After Independence, restrictive regulations were modified to meet the urges of a free press. The Cinematograph Act, 1952, as described earlier, dealt with film certification and cinema regulation, with Section 3 creating the Censor Board. The first Press Commission recommended setting up a Press Council to safeguard press freedom, leading to the Press Council Act of 1965 and its establishment on 4 July 1966, later repealed in 1976. The Indian press remained largely privately owned and free except for the 1975‑1977 emergency period. The government appointed the 1952 and 1978 Press Commissions to inquire into press laws. In 1965 the Press Council of India remained the sole statutory quasi‑judicial body for media regulation without enforcement powers. In 1975 alleged television abuse led to a demand for autonomy, a white paper in 1977, and a working group on autonomy for Akashvani and Doordarshan. In 1979 a committee proposed a trust named Akash Bharati or National Broadcasting Trust, which was introduced in Parliament but lapsed after the dissolution of Lok Sabha in 1979. In 1982 the Advisory Committee headed by Mr. G. Parthasarathi issued News Policy for Broadcast Media., The Prasar Bharati (Broadcasting Corporation of India) Act, 1990, came into existence in September 1990 and became effective on 15 September 1997, freeing All India Radio and Doordarshan from direct Government control and establishing an autonomous corporation for electronic media., The Cable Television Network Rules, 1994, enacted under the Cable Television Networks (Regulation) Ordinance, 1994, contain a Programme Code that restricts content of programmes and advertisements on cable TV. The Cable Television Networks (Regulation) Act, 1995, was enacted on 25 March 1995., The News Broadcasting Standards Disputes Redressal Authority, a self‑regulatory body set up by the 14‑member NBA representing 30 channels, is expected to watch over news broadcasts that violate the NBA’s code of ethics and broadcasting standards, but it is not a statutory authority and does not derive powers from the Constitution or any statute., On 9 November 2019 the NBSA, the self‑regulatory authority, ordered English news channel Republic TV to air an unconditional apology for previously undermining NBSA’s authority in an ethical violations case. The channel did not comply, leading to involvement of the News Broadcasters Federation, which has no grievance resolution mechanism., The Supreme Court of India, in Writ Petition (Civil) No. 956/2020, Firoz Iqbal Khan v. Union of India & Others, expressed willingness to consider framing guidelines for regulation of the media business., The petitioner has moved the Bombay High Court by means of Public Interest Litigation No. 92252/2020, Nilesh Navalakha & Others v. Union of India & Others, for postponement of reportage and media trials in the Sushant Singh Rajput death case and for directing media respondents to adhere to the Programme Code of the Union of India (Ministry of Information and Broadcasting)., The petitioners have moved this Supreme Court of India by means of the instant writ petition in public interest to address the larger issue of judicial regulation of the media, which is distinct from the petition pending in the Bombay High Court. They beseech the Court to lay down appropriate guidelines outlining the broad regulatory paradigm within which media houses, i.e., broadcasters and electronic media, can exercise their rights under Article 19(1), and to establish an independent regulatory tribunal, known as the Media Tribunal, to adjudicate complaints against media businesses filed by viewers or citizens., The Supreme Court of India, in Vineet Narain v. Union of India (1998) 1 SCC 226, in similar circumstances and in the absence of any legislative framework, gave detailed directions for setting up an independent body, the Central Vigilance Commission, to supervise the CBI and provided directions regarding tenure of officers., Electronic media has become the most powerful medium with unprecedented influence over the minds of the people. The lack of accountability on electronic media channels, which have the power to incite hateful and fissiparous discourse, is a concern., Over the last few years, media trials, hate speech, propaganda news, and paid news have become common, impeding the right to a fair trial of victims and the right to fair and proportionate reporting. Reckless reportage by electronic media without accountability cannot be said to be an exercise of the right to freedom of speech and expression enjoyed by electronic media., Unbridled power is dangerous; power corrupts, and absolute power corrupts absolutely. The electronic media has become like an unruly horse that needs to be tamed. However, the Ministry of Information and Broadcasting, Union of India, as the nodal ministry, has failed to implement the undertaking of electronic media broadcasters to comply with the Programme Code in Rule 5 of the Cable Television Rules, 1994. Electronic media broadcasters are bound by the undertaking to comply with the Programme Code at the time of applying for permission to uplink/downlink their channels., The media is afflicted with disseminating: i) misinformation, fake news and propaganda; ii) divisive and schismatic forces of communalism, ethnocentrism, bigotry, casteism, linguism and regionalism; iii) indecent, sleazy, cheap, sensational, scandalous, immoral, inciting, defamatory and disproportionate reports; iv) war‑mongering; v) superstitious, violent, backward and public disorder‑inducing attitudes, all of which are beyond the periphery of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution and constitute a brazen misuse of the said right. Moreover, by the nature of broadcast, electronic media wholly negates the right to fair and proper information enjoyed by the citizenry.
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Article 51A of Part IVA of the Constitution provides the fundamental duties of every citizen, inter alia: (a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) To cherish and follow the noble ideals which inspired our national struggle for freedom; (c) To uphold and protect the sovereignty, unity and integrity of India; (e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, and to renounce practices derogatory to the dignity of women; (f) To value and preserve the rich heritage of our composite culture; (g) To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures; (h) To develop the scientific temper, humanism and the spirit of inquiry and reform; (j) 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; and since the Media is made up of nothing but a body corporate/group/aggregate of citizens, the same is also a bounden duty of the Media to uphold the duties fundamental to all citizens., It is a constitutional duty of the Media, the State and the citizen to abide by the fundamental duties. Although Article 51A is not judicially enforceable by itself, it becomes judicially enforceable through an expanding interpretation of Article 21, and any failure of the foregoing duties may be considered and entertained as a Public Interest Litigation under Article 32., For the purposes of plenary and inherent powers and jurisdiction of the Supreme Court of India under Article 32 and Article 142 of the Constitution, the Media is well covered under the definition of State under Article 12, squarely falling within the Public Function Test, as laid down by the Supreme Court of India in a plethora of cases. The role of Media corporations is comparable to sovereign functions because of their mass‑reach and pervasive control over the lives of individuals, their immense power of shaping lives, direct control over content/news/facts being disseminated, and heavy reliance by the nation’s populace for information, which eventually moulds thoughts, opinions and ideas., The nature of the reportage of the Electronic Media, as enumerated hereinabove, negates the fundamental rights of the citizenry at large, being Right to Live with Human Dignity, Right to Livelihood, Right to Education, Right to Know, Right to Fair Information and Proportionate Media Reporting, etc., as enshrined under Article 21 of the Constitution, apart from being antithetical to the citizens’ rights guaranteed under Article 19(1)(a). Owing to the dominance of Electronic Media, those rights become subsidiary and inconsequential, further falling under the mischief of arbitrariness and being hit by Article 14 of the Constitution., The Supreme Court of India has time and again expressed that the rights of the many are to supersede the rights of the few. It is submitted that the right to freedom of speech and expression enjoyed by the Electronic Media Broadcaster cannot trump the right to fair information enjoyed by the citizenry., In these circumstances, it has become imperative that the Supreme Court of India, as the ultimate sentinel on the qui vive, protects and balances the rights of various stake‑holders so that the fundamental rights of one class of stake‑holders do not become subservient to the exercise of fundamental rights of another class., It may not be incorrect to state that the Ministry of Information and Broadcasting, Union of India, the nodal ministry, has failed in the discharge of its duties and in holding media houses accountable for breach of the programme code framed by it. It is crucial to foresee and understand the consequences of paid, fake, and biased news, which is all unreliable news. The Ministry of Information and Broadcasting, Union of India, the trustee of airwaves, has apparently blindfolded itself like King Dhritarashtra of the Mahabharata, who knew his children, the Kauravas, were in the wrong and perpetrating evils, but did not reprimand, censure or stop them., It is pertinent to mention that the press does not enjoy unfettered freedom of any degree higher than that enjoyed by the citizens. The Constitution of India does not specifically mention the freedom of the press; freedom of the press is implied from Article 19(1)(a). Thus, the press is subject to the restrictions provided under Article 19(2). The power enjoyed by news broadcasters/electronic media is immense and without accountability to the law or the Constitution. Untrammeled power is prone to abuse, which is antithetical to the rule of law., Most members of the Constituent Assembly welcomed the inclusion of the right. However, conflict emerged around the provision that placed restrictions on the right: while some members opposed the mention of restrictions, others supported it. Members who opposed the restrictions argued that (i) there is no point in having a right to freedom of speech and expression in the presence of restrictions, and (ii) putting restrictions on the freedom of speech and expression was a British practice., During the debates around Draft Article 13 (Article 19, Constitution of India, 1950): (i) Shri Damodar S. Seth proposed an amendment to spell out freedom of the press along with other freedoms, noting that the present is the age of the press and it is becoming more powerful; it seemed desirable and proper that freedom of the press should be mentioned separately and explicitly. (ii) Shri K. T. Shah was another strong proponent of freedom of the press. He wanted to insert freedom of speech and expression; of thought and worship; of press and publication. He pointed out that several countries underwent constitutional struggles to ensure freedom of the press and that freedom of the press is explicitly guaranteed where liberal constitutions prevailed. Shah insisted that leaving this out was a “black Act”. (iii) He further noted: “To omit it altogether, I repeat, with all the earnestness that I can command, would be a great blemish which you may maintain by the force of the majority, but which you will never succeed in telling the world is a progressive liberal constitution, if you insist on my amendment being rejected.”, Dr. B. R. Ambedkar, Chairman of the Drafting Committee, after a long debate on inclusion of the press in the Article, stated that the press has no special rights which are not to be given or exercised by the citizen in his individual capacity. He explained that the press is merely another way of stating an individual or a citizen; the press has no special rights beyond those of any citizen. Editors and managers are citizens, and when they write in newspapers they are merely exercising their right of expression, so no special mention of freedom of the press is necessary., The strong demands to encode freedom of the press within Article 19(1)(a) were defeated because the framers did not see the press as a separate category. The Privy Council in *Channing Arnold v. King Emperor* AIR 1914 PC 116, at 117, observed: “The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length the subject in general may go, so also may the journalist, but apart from statute his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”, In the pre‑Independence era, the Media was a service to the cause of the people’s freedom, a great juggernaut of social change, reform and awakening, and acted as one of the greatest tools to mobilise the people and consolidate social consciousness for the freedom struggle. The Media of that era was largely run and owned by freedom fighters and great personalities such as Raja Ram Mohan Roy, Bal Gangadhar Tilak, Dadabhai Naoroji, Mahatma Gandhi, Jawaharlal Nehru, Dr. B. R. Ambedkar, etc., In the pre‑Independence period, Media/Journalism was rooted in a vision of social change, awakening, reformation and consolidation and mobilisation of the struggle for India’s freedom, and worked with that mission., While the press and the media continued in the pre‑independence spirit, over time, with changes in media and society, news broadcasters and electronic media have used their power to further business interests. The Media has mutated from being a service to being a business. Journalism has mutated from being a mission to being a profession., Further, the Media moved from being owned by benevolent, self‑less freedom fighters to being owned by profit‑oriented big business and corporate houses. Over time, Media‑Business became a monumentally competitive and cut‑throat commerce, where sensationalism, sleaze and scandal have become the norm and truth/facts have become subsidiary., Significantly, free speech cannot be without regulation or consequence, especially when Article 19(1)(a) is subject to reasonable restrictions in Article 19(2). The spread of misinformation or falsities by news broadcasters and electronic media falls foul of the right to information of common citizens, which is also recognised and guaranteed under Article 19(1)(a)., For a full bird’s‑eye view of the matter, the prevailing legal regime constituting the present regulatory framework is as follows: The regulatory regime governing the media sector is contained under the Prasar Bharati Act 1990, the Cable Networks Act 1995 and the rules framed thereunder. Institutional structures and government bodies regulating the sector include the Ministry of Information and Broadcasting (Respondent No. 1) and Prasar Bharati. These bodies are entrusted with governance through guidelines, policies, rules and the granting of licences for the broadcasting and electronic media sector. Uplinking/Downlinking Guidelines as of 2011 apply., As per existing guidelines, permission for satellite TV channels is granted under two categories: News and Current Affairs TV channels and Non‑News and Current Affairs TV channels. The guidelines define (a) a News & Current Affairs TV channel as one that has any element of news & current affairs in its programme content, and (b) a Non‑News & Current Affairs TV channel as one that does not have any element of news & current affairs in its programme content., The company shall comply with the Programme & Advertising Codes, as laid down in the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder., According to existing policy guidelines, permissions for uplinking and/or downlinking of satellite TV channels are issued to broadcasters by the Ministry of Information and Broadcasting on the basis of their applications. Accordingly, a satellite TV channel uses the uplink spectrum (airwaves), a satellite transponder, and the downlink spectrum to transmit signals from broadcaster to distributors., Existing bodies for regulation of media such as the Press Council of India, a statutory body, and the News Broadcasting Standards Authority, a self‑regulatory organisation, issue standards that are essentially guidelines. Broadcasters enter into a contractual obligation with the Government to comply with the Programme Code and the Advertising Code specified in the Cable Act and the Cable Rules. Any broadcaster that does not comply is liable to be proceeded against, including cancellation of the permission to uplink/downlink., Over 1,000 television channels use the airwaves, which are public property, but there is no organised and effective regulatory mechanism to regulate or adjudicate the challenges posed by broadcasters., The provisions of the programme code, which fix at least some accountability, do not govern the media; the media is governed by the self‑regulated broadcasting code., The Supreme Court of India in *Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal* (1995) 2 SCC 161 examined the lacuna in broadcasting regulation and directed the establishment of an autonomous broadcasting authority to control and regulate the broadcasting media., The Prasar Bharati Act aims at bringing Government electronic media under the control of an autonomous organisation. The Act sought to free Akashwani (All India Radio) and Doordarshan from direct Government control and provides for the establishment of an autonomous corporation for electronic media. The Act established a Broadcasting Corporation of India known as Prasar Bharati., The principal purpose of the Cable Networks Act was to introduce regulatory certainty to the cable market that emerged in the early 1990s., The statement of objects and reasons declared that cable TV constituted a cultural invasion as cable programmes were predominantly Western and alien to Indian culture and way of life. It declared that the lack of regulation had resulted in undesirable programmes and advertisements being shown to Indian viewers without any censorship., There has been a haphazard mushrooming of cable television networks across the country in recent years due to the availability of signals of foreign television networks via satellites. This has been perceived as a cultural invasion because the programmes on these satellite channels are predominantly Western and alien to our culture and way of life. Since there is no regulation of these cable networks, many undesirable programmes and advertisements are becoming available to viewers without any censorship., It is also felt that subscribers of these cable networks, the programmers and the cable operators themselves are not aware of their rights, responsibilities and obligations regarding quality of service, technical and content aspects, use of copyrighted material, exhibition of uncertified films, protection from anti‑national broadcasts, and compliance with laws such as the Cinematograph Act, 1952, the Copyright Act, 1957, and the Indecent Representation of Women (Prohibition) Act, 1986., Therefore, it is considered necessary to regulate the operation of cable television networks throughout the country to bring about uniformity. This will enable optimal exploitation of the technology, providing subscribers with a vast pool of information and entertainment., The Bill seeks to achieve the above objects., Sections 5 and 6 of the Act deal with the advertisement code and programme code. All cable services must conform to the codes. The down‑linking Guidelines issued by the Ministry of Information and Broadcasting in 2005 bind broadcasters to certain provisions of the Cable Television Networks (Regulation) Act, 1995, namely the programme code and the advertisement code., Sections 16, 17 and 18 of the Act deal with offences under the Act and lay down punishments for any act contravening its provisions., The Rules were enacted under the Cable Television Networks (Regulation) Ordinance, 1994. The Programme Code of the Cable Television Network Rules imposes restrictions on the content of both programmes and advertisements that can be shown on cable TV, as laid down in Section 6 of the Rules., The broadcaster cannot carry any channels prohibited by the Ministry of Information and Broadcasting. It must ensure that its facilities are not used for transmitting objectionable or obscene content, messages or communications inconsistent with the law. Use of the facility for anti‑national activities would be construed as an offence punishable under the Indian Penal Code and applicable laws, resulting in immediate termination of the licence. The Ministry of Information and Broadcasting, under the Cable Act, has authority to prohibit transmission or reception of programmes for violation of the programme code., The sole statutory, quasi‑judicial body set up for media regulation in India is the Press Council of India. While it aims to preserve press freedom and improve press standards, it has no power to impose punishments or enforce its directions for professional or ethical violations., The powers of the Press Council of India are restricted in two ways: (1) it has limited powers to enforce the guidelines it issues and cannot penalise newspapers, news agencies, editors or journalists for violations; (2) it only oversees the functioning of print media and does not have authority over electronic media such as radio, television and internet., News channels are governed by self‑regulation. The News Broadcasters Association (NBA) has devised a Code of Ethics & Broadcasting Standards to regulate television content. The News Broadcasting Standards Authority (NBSA) of the NBA is empowered to warn, admonish, censure, express disapproval and fine a broadcaster up to Rs 1 lakh for violation of the Code. The NBA presently has 26 leading news and current‑affairs broadcasters (comprising 70 channels) as members and presents a unified, credible voice before the Government on matters affecting the industry., The News Broadcasting Standards Disputes Redressal Authority, a self‑regulatory body set up by the 14‑member NBA (representing 30 channels), is expected to watch over news broadcasts that violate the NBA’s code of ethics and broadcasting standards. This authority is not a statutory body and does not derive any powers from the Constitution of India or any statute. Adjudicating any grievance by this authority is clearly in the realm of being judge of its own case., Not all news broadcasters are members; decisions made by the authority will be binding on its members but not on broadcasters who are members of the Indian Broadcast Federation. It is a matter of great concern that the Association’s members are governed by News Broadcasting Standards Regulations which only act on a complaint to see if there is any violation of the Code of Conduct (Code of Ethics & Broadcasting Standards)., On 09.11.2019, the News Broadcasting Standards Authority ordered English news channel Republic TV to air an unconditional apology for previously undermining the NBSA’s authority in a different ethical‑violation case. The channel did not comply, and an alternate self‑regulatory body named the News Broadcasters Federation also became involved. The News Broadcasters Federation has no grievance‑resolution mechanism so far. Respondent No. 4 is apparently an association of over 50 news channels., The News Broadcasting Standards Disputes Redressal Authority (Respondent No. 5), a self‑regulatory body, is expected to watch over news broadcasts that violate the NBA’s code of ethics and broadcasting standards. This authority is not a statutory body and does not derive any powers from the Constitution of India or any statute. The NBSA of the NBA is empowered to warn, admonish, censure, express disapproval and fine a broadcaster up to Rs 1 lakh for violation of the Code., Several other small or large news channels are neither members of the NBA nor of the News Broadcasters Federation and thus continue to broadcast anything under the guise of free speech., The liberty and pleasure of self‑regulation enjoyed by the Media has been deceitful. The NBSA and other authorities have miserably failed to promote public accountability and fairness in news reporting., The Press Council of India has on several occasions recommended amending the Press Council Act to bring electronic media under its jurisdiction, to constitute a statutory body, and to empower the Press Council of India to take strong action against defaulters., Self‑regulation by media can never be the answer. Under the Indian constitutional setup, only the Judiciary enjoys the privilege of self‑regulation, being independent and conferred with that privilege by the Constitution itself. Equating the Media‑Business with the Judiciary in terms of self‑regulation directly strikes at the independence of the Judiciary and shakes the foundations of the Indian constitutional scheme and democracy, contrary to every notion of law and justice in India. Even this Supreme Court of India, though self‑regulated, is not immune from the law and is amenable to regulations under the Judges (Inquiry) Act, 1968., News broadcasters and electronic media cannot claim immunity from reasonable restrictions, nor can they claim to enjoy the fundamental rights guaranteed under Article 19(1)(a) without being subject to restrictions under Article 19(2). While there are methods of censoring and screening cinematograph films, there is absolutely none for broadcasters., The Supreme Court of India in *S. Rangarajan v. P. Jagjivan Ram* (1989) 2 SCC 574 categorically stated: “Movie doubtless enjoys the guarantee under Article 19(1)(a) but there is one significant difference between the movie and other modes of communication. The movie cannot function in a free marketplace like the newspaper, magazine or advertisement. Movies motivate thought and action and assure a high degree of attention and retention… Censorship by prior restraint is therefore not only desirable but also necessary.”, Despite there being no restrictions in the First Amendment to the US Constitution, the Supreme Court of the United States in *Brandenburg v. Ohio*, 395 U.S. 444 (1969) held that free speech can be restricted when it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action., In India, although free speech is not unlimited, that test is not applicable to news broadcasters/electronic media today because of a lack of regulatory control. Mahatma Gandhi’s quote is relevant: “An uncontrolled pen serves but to destroy.”, It goes without saying that self‑regulation theory, as evolved by toothless bodies like the News Broadcasters Association, is nothing but a sham and farcical, abusing the bona‑fide privilege conferred upon the media as the Fourth Pillar and amounting to a myth., Describing journalists, news outlets, broadcasters and the Media in general as members of the Fourth Estate acknowledges their influence and status among the greatest powers of a nation‑state. The expressions “fourth‑estate” or “fourth‑pillar” date back centuries, originally applying to any unofficial group that wielded public influence, including the mass of common‑folk., The earliest known user of the expression designating ordinary people as the fourth estate was English author and magistrate Henry Fielding (1707‑1754), writing under the pseudonym Sir Alexander Drawcansir, Knt. Censor of Great Britain, in *The Covent‑Garden Journal* of Saturday, 13 June 1752: “It may seem strange that none of our political writers, in their learned treatises on the English Constitution, should take notice of any more than three Estates, namely, King, Lords, and Commons, all entirely passing by in silence that very large and powerful body which form the fourth Estate in this community, and have long been dignified and distinguished by the name of THE MOB.”, Scottish historian Thomas Carlyle, in *On Heroes, Hero‑Worship, and The Heroic in History* (1841), attributed the origin of the expression as applied to the press to Anglo‑Irish statesman and philosopher Edmund Burke, who supposedly said: “Does not, though the name Parliament subsists, the parliamentary debate go on now, everywhere and at all times, in a far more comprehensive way, out of Parliament altogether? Burke said there were three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than they all.”, Four years earlier, Carlyle used the phrase in *The French Revolution* (1837): “A Fourth Estate, of Able Editors, springs up, increases and multiplies; irrepressible, incalculable.” Thus, Carlyle saw the press as instrumental to the birth and growth of democracy, spreading facts and opinions and sparking revolution against tyranny.
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That, in India, the press had also served as a great tool to unite the mass consciousness against the oppression of the British Raj and, largely owned, controlled and run by the foremost of our freedom fighters, was one of the highest forms of service to the cause of India's tryst with freedom., That, however, unfortunately, after independence the Press, or so to say, Media the broadcast media, in particular, was taken over by the Corporates and Business Entities and soon degenerated and corrupted into a cut‑throat, commercial enterprise, centred around television rating points, ratings, viewership and profit‑making; thereby making the original and true purpose of Media in a democracy, subservient, thus soiling and debasing its nature and character as the fourth estate., That, significantly, the Media of today, as we witness every day, is, inter alia, marred by and is a super‑spreader of divisive and schismatic forces of communalism, ethnocentrism, bigotry, casteism, linguism and regionalism, apart from being scourged by sensationalism, scandal, misinformation, hatred and war‑mongering, cheapness, sleaze, superstition, backwardness, criminality and open mockery of the basic ethos of our Constitution and this is completely in teeth of Article 19(2)., That, it may not be incorrect to state that the Corporate/Business‑Media of today is in no way deserving of the hallowed laurel of the fourth estate, as it is in no way concerned with and is totally indifferent to the actual issues of the people, such as fiscal stability, joblessness, healthcare infrastructure, economy, education infrastructure, governmental and executive accountability, public order and safety, social reform, developing scientific temper, amplifying the voices of the voiceless, women empowerment, technological advancement, upliftment of the weaker sections of the society, encouraging brotherhood, strengthening national unity, etc., That, on the other hand, the Corporate/Business‑Media of today thrives on fake, concocted and fabricated issues, completely oblivious to and far detached from the problems and issues of the ordinary people and this clearly forms part of the restrictions under Article 19(2)., That, the Media was only accorded the status of fourth pillar because of the role it played. Now, since its role has changed, from Service to Business, and from Mission to Profession, in such circumstances, it cannot mechanically be referred to as the Fourth Pillar, to avert all judicial attempts at regulating the Media‑Business. It cannot be termed as the Fourth Pillar if it does not raise the people's issues and acts as the voice of the voiceless, instead only acts as a TRP hunting, profit‑mongering machine., That, the judicially unregulated Media‑Business is able to be used by politicians, police officers and other public officials who wish to put out propaganda to advance their own interests and influence public opinion. A hunger for leaks and scoops (which sometimes precipitates the events which they predict) and some journalists' relationship with the sources who provide them with information, can make it difficult for the media to maintain its independence and a critical stance. Searches for motivation, and even checks for accuracy, may suffer as a result. For example, over the last few months, errant police personnel who have been involved in encounter killings of purported criminals have been projected as heroes, despite the act being a complete negation of the rule of law exhibited with the full power of the State. Further, the bane of fake news has led to misinformation being spread amongst the citizenry., That, in the context of the above, it places an extra responsibility on the journalist, as both the journalist and the source have a mutual interest: both want a headline. Yet if the journalist is so indiscriminating that the perspective taken serves the purposes of the source, then true independence is lost, and with it goes the right to claim the special privileges and considerations which are usually claimed by the media because of its claimed independence and watchdog role, as the Fourth Pillar. If the independence and the role are lost, so is the claim to special consideration., That, regulation of the Media does not mean censorship or curtailment of freedom of press, instead, regulation promotes the freedom or the facility which is required to be regulated in the interest of all concerned. It is hence submitted that State of Uttar Pradesh v. Hindustan Aluminium Corp., (1979) 3 SCC 229. Regulation means regulation in public interest and not contra public interest. The expression regulation cannot possibly be read as contra public interest but in the interest of the public. (see Haryana State Electricity Board v. Suresh, (1999) 3 SCC 601)., That, it is submitted that Regulation has three components: i. legislation, that is, defining appropriate rules; ii. enforcement, such as initiating actions against violators; and iii. adjudication, that is, deciding whether a violation has taken place and imposing an appropriate penalty., That, the media in India has unfortunately been playing a disproportionate role in shaping public perceptions of politics, electoral outcomes and the way power is exercised. The news media‑business is facing a serious crisis of credibility. Robbed of authenticity, reliability and credibility, the media will cease to matter to large numbers of people except as a source of cheap entertainment and titillation. That being so, the whole purpose of the protection of free speech guaranteed under the Constitution gets defeated., That, this Supreme Court of India in Cricket Association of Bengal (supra) has considerably widened the scope and extension of right to freedom of speech and expression and held that the government and private parties have no monopoly on electronic media and under Article 19(1)(a) a citizen has the right to telecast and broadcast to the viewers through electronic media. This Supreme Court categorically noted that the airwaves are public property and their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights., That, this Supreme Court of India further holds that Article 19(1)(g) – the right to trade and conduct business – but broadcasting, being a means of expression and therefore covered by Article 19(1)(a), could not be monopolized, whether by the government or private companies., That, the Petitioners respectfully submit without prejudice to the intentions of Respondent No. 1 that the Ministry has hardly intervened or taken any action against any such channels as may be guilty of brazen, deliberate and blatant flouting and violations of its own Programme Code, Rules or the Laws of the Land. The said Ministry has either exercised its powers selectively or has reduced itself to a mere, mute spectator., That, the media is often termed as the watchdog, since it acts as a check and balance on the exercise of power of the three branches of government i.e., the executive, the legislature and the judiciary. It is, however, submitted that to monitor the watchdog, there is no proper authority., That, the media being in the occupation of gathering and circulating information is supposed to hold a dominant position, a position that makes it very responsible and answerable to the public at large., That, it is imperative that the news television channels adhere to the elements of news and current affairs in their program content, it is also important that the news channels show fair and fact‑checked news., That, citizens have a right to access free, independent media and that is precisely why India needs an exclusive regulatory body and specific statutory laws for news television channels. This Supreme Court of India in T. Secretary, Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161 had directed the government to set up an independent autonomous authority which would free Prasar Bharati from the shackles of government control and ensure conditions in which the freedom of speech and expression could be meaningful and effectively enjoyed by one and all. This Supreme Court categorically held that the fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution. (see paragraph 122 of the judgment)., That, the paid news, propaganda news, false and misreporting, biased news is undermining our democracy since the functioning of media has a direct impact on the citizens, government and the society. The fact of paid news is acknowledged by the Press Council of India long ago when it conducted a study of the widespread practice of paid news in India in 2010. In its report, the Press Council of India stated that paid news is a pervasive, structured and highly organized practice in Indian newspapers and other media outlets, where news space and favourable coverage is exchanged for money., That, the Press Council of India also acknowledged other forms of paid news including private treaties between media companies and corporate entities, wherein a non‑media company transfers certain shares of the company to the media company in lieu of advertisement space and favourable coverage., That, instead of discharging the responsibility of being informative about the unreliable news being spread on social media, most news channels have been competing with social media while creating and circulating such unreliable news including fake news, paid news and agenda‑driven news., That, the content being aired on most news channels today makes it easy to infer that the News Broadcasting Standards Authority's Code is essentially ineffective. The office bearers and members of all such self‑regulatory associations include the office bearers of leading news channels, leaving no room for ambiguity that the self‑regulatory mechanism fails to be an effective, reliable and trustworthy regulation. Adding to all these problems is the non‑unification of the self‑regulatory news media regulations in India, since the presence of multiple self‑regulatory bodies has led to issues over the enforceability of decisions., That, the absence of regulation and lack of control over the content of news television channels is the primary reason for the content and credibility crisis of the Indian television news industry. One of the primary effects of the absence of a statutory regulatory body to regulate the content of news channels in India is that viewers are in a conundrum as to what content is reliable., The News Broadcasting Standards Authority's code of ethics and broadcasting standards is limited to member news channels. This effectively means that out of the nearly 400 permitted satellite news channels in the country, the NBSA can only adjudicate on matters relating to its 27 member broadcasters and their 77 channels., That, this Supreme Court of India in larger public interest can legislate or frame judicial guidelines to fill the vacuum in the laws in a particular field temporarily provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field., That, this Supreme Court of India in Vineet Narain v. Union of India, (1998) 1 SCC 226, gave exhaustive directions to enhance the efficiency of the Central Bureau of Investigation and even directed that the Central Vigilance Commission be given statutory status., That, this Supreme Court of India in Vineet Narain (supra) also observed, where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field., That, the instant petition comprises matters which seeks interpretation of the ambit, expanse and scope of the right to freedom of speech and expression, envisaged under Article 19(1)(a) and limitations prescribed under Article 19(2) of the Constitution, and the determination of such questions of law as to whether the freedom of press, which emanates from the said Article, is wider and more potent than the freedom of speech and expression of an ordinary individual/citizen, emanating from the same Article. This, coupled with the substantial relook and possible diffraction from the ratio of the Constitutional Bench of this Supreme Court in the Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603 deserves the consideration of a Constitutional Bench of this Supreme Court., That, this Supreme Court of India in Nivedita Jha vs State of Bihar & Ors: SLP(C) NO.24978 of 2018 (Muzzafar Nagar Shelter Home case) has also expressed its desire to evolve a mechanism for enforcement and implementation of the statutory provisions and guidelines., That, as regards the issue of constitution of a Media Tribunal/Statutory Judicial Body, several High Courts all over the country are seized with the said issue, one of which has even placed it before a Full‑Bench of the High Court. In the circumstances, the Petitioners beseech this Supreme Court of India, taking due note and cognizance of the same, to settle it once and for all, by a Constitution Bench of this Supreme Court., That, the present Petition raises an issue which is writ large and seeks to fix accountability on broadcasters who under the guise of the freedom of press and exploiting such rights without ever being held accountable., That, in exercise of the powers of this Supreme Court of India under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases. (see paragraph 51 of Vineet Narain (supra)). Peoples Movement Against Sexual Assault (PMASA) vs Department of Women and Child Development, State of Karnataka & Ors. Writ Petition No. 6301 of 2017 pending before the High Court of Karnataka at Bangalore; Shakeel Ahmed and Ors. vs. Suwarna News 24×7 and Ors.: Writ Petition No. 13677 of 2012 pending before the High Court of Karnataka at Bangalore; Lucknow Bench of the Allahabad High Court Dr. Nutan Thakur vs Union of India Writ Petition No. 9976 of 2013; High Court of Kerala K. Biju vs. Union of India and Others. Writ Petition (Civil) No. 21336 of 2013 pending before the High Court of Kerala., That, the framing of judicial guidelines and holding the media business accountable would strengthen the system, ensure fair coverage of news stories, ethical conformity, higher standards and less yellow journalism, while also keeping the need for government interference at bay., That, the Petitioners for the convenience of this Supreme Court of India, are making the following suggestions, which may be considered while framing guidelines and issuing necessary directions: a Media Tribunal on the lines of the National Green Tribunal or the Motor Vehicles Accidents Tribunal must be set up for the judicial regulation of the Media, as opposed to executive regulation thereof; a committee of retired Judges of the Supreme Court of India must look into the existing legislative framework and suggest rehauling, revision and strengthening of the same; the said committee may also recommend to the Central Government the creation of a Judicial Tribunal, being the Media Tribunal, on the lines of the Central Vigilance Commission and the National Green Tribunal, to look into complaints against the Media in cases of violation of the Programme Code or violations of other laws such as the Indian Penal Code, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act during broadcast or otherwise; the tribunal so constituted must have a mechanism for both physical and e‑filing of complaint petitions against the Media by the viewers/citizens, as in the case of the National Green Tribunal and the National Human Rights Commission; this Supreme Court of India must consider setting up a Monitoring Panel appointed by this Court, helmed by sitting or retired Judges of this Court or such persons of high regard as the Court deems fit, to monitor and regulate the Media, so as to enable implementation and adherence of the guidelines as may be laid by this Court, to fill the judicial‑regulatory vacuum, until the establishment and constitution of a Media Tribunal under a statutory enactment; media persons, journalists and anchors must state facts and facts only, and all formulation of opinions thereon must be left upon the viewers/citizens; whenever a journalist or anchor has to give any opinion based on the facts of a particular news item, he or she must specifically and explicitly state that the same is his own opinion and that they take full responsibility for the same; the Court must lay down and emphasize the principle of proportionate reporting in matters of broadcast and coverage, i.e., issues of national, international and public importance such as economy, healthcare, education, environment, public order, women’s rights, farmer and agrarian issues, must be given due and proportionate coverage and TV‑time, and it must be ensured that a singular issue does not hog the limelight disproportionately; being a developing country, the key and special function of broadcasting must be the coverage of development, its meaning, achievements and obstacles, encompassing a wide range of developmental activities economic, technological, social and cultural, not confined to mere statements and plans, but their significance must also be explained; the style and method of news reporting, the theme, conduct and pattern of the programmes, should reflect and reinforce the fundamental principles on which national policies are based, such as unity, territorial integrity, brotherhood, national integration, secularism, maintenance of public order, upholding human dignity and the prestige of the Parliament, State Legislatures and the Judiciary; there must be adequate representation and coverage of all areas and cultures of India, so as to inculcate a sense of we‑feeling, belongingness and mutual affection among all the pluralistic peoples of the country, including the North‑Eastern, Southern, Western, Northern and Eastern States; anchors and journalists must call scholarly and non‑political persons, for example professors, scientists, engineers, academicians, doctors, experts of their particular fields, in TV‑debates on multifarious social and public issues, instead of representatives of various political parties who engage in mindless quibbling and mudslinging, so as to ensure that the Media becomes a tool of information and social education, awareness and upliftment, rather than an arena for political pig‑fights; anchors and journalists, in any case, must give equivalent and adequate speaking time to every panelist and be respectful and courteous towards them all; the anchor or journalist must refrain from making the show self‑centred and ranting in monologues or be biased towards or against certain panelists; the anchor or journalist must maintain neutrality at all times, and at no point should state his opinions without explicitly stating that it is his own opinion, thereby leaving the formulation of opinions wholly upon the audience; it must be ensured that media studios act as temples of information and knowledge, and raise the issues of the people and act as a watchdog of the democracy, always tending to have a constructively critical relationship with the Government, in keeping with the Media’s role as the Fourth Estate or the Fourth Pillar of Democracy; the Court must unequivocally and emphatically lay down that the role of the Media in a democracy is supposed to act as a second opposition, apart from the political opposition, and be the voice of the voiceless, to always fight for the real issues of survival that the people are confronted with on a daily basis, in keeping with the Constitutional Scheme of India as a welfare state; in order to ensure responsible reporting, the Court must direct the Government to acquire certain stakes in all the broadcasting networks, so as to fix a greater liability upon the Government in case of any reporting which violates any of the laws of the land; the Court must censure the Media as to the showing of sensational, sleazy and scandalous programmes, which must be abhorred at all costs; the system of television rating points which leads to a cut‑throat and unprincipled rat‑race among the media channels, in the unholy quest for ratings and TRPs, and thereby lure advertisements, investment and profits, must be outlawed; the TRP system must be substituted with an award system, on the lines of National Awards, to be conferred for titles such as Most Informative News Channel, People’s Voice Award, Best Anchor: People’s Voice, Best Investigative Journalist, etc., judged by an independent panel of senior, retired and ex‑journalists and luminaries, and persons having special and practical knowledge in matters of literature, science, art and social service; the ownership and share‑holding framework of the broadcasting network or media channels must be prominently published on the website of the respective broadcasting/media network/channel; the revenue model of the media/broadcasting company/network must be published on the website, inter alia, detailing the advertisements and the quantum thereof, as received from the Government; there must be sensitivity counselling of the journalists and the persons‑in‑charge of the media networks, so as to become well‑versed with the pluralistic, diverse and vulnerable nature of our society and the wide plethora of cultures, faiths and belief‑systems; there must be social‑impact assessment conducted by every channel to estimate and account for the sociological harm or damage which a particular program might create, before running such programs; and the said impact assessment reports must be mandatorily maintained and kept safe; there must be minimum educational eligibility criteria to become an anchor, journalist or reporter, and the same with all the educational qualifications and degrees of the journalists must be displayed on the website of the respective media channels; freelance media, particularly the digital media, i.e., YouTube and web‑journalists, must be mandatorily registered as media portals with the Ministry of Information and Broadcasting, so as to be subject to the same liabilities and checks as the electronic media; the persons‑in‑charge of the media channels, along with the journalists and the news anchors, must be well‑versed with the Programme Code framed under the Cable Television Networks (Regulation) Act, 1995, and for the same, the main tenets of the Programme Code must be displayed on the TV channels as disclaimers or otherwise as running‑flickers during the ongoing shows., That, in the circumstances, it has become imperative that this Supreme Court of India as the ultimate sentinel on the qui vive protects and balances the rights of various stake holders so that the fundamental rights of one class of stake holders do not become subservient to the exercise of fundamental rights of the other class., That, it is therefore submitted, that in the circumstances, it is picturesque, that it is necessary and imperative for this Supreme Court of India to frame guidelines to regulate the news broadcasters and electronic media, in the absence of an effective legislative mechanism for checks and balances on the exercise of the right of freedom of speech and expression by the news broadcasters; and further, to constitute an Independent Committee, headed by sitting or retired Judges, to inter alia recommend to the Central Government for establishment of an independent regulatory Tribunal, a Media Tribunal, to hear and expeditiously adjudicate upon complaint petitions against the Media Business, Corporates and Journalists, filed by the viewers/citizens, to regulate the broadcasting and media sector, and covering the multifarious segments of the Media, i.e., electronic, print and digital. It may also prescribe and impose sanctions where the laws of the land have been violated. It is submitted that the object is not to curb the freedom of the media, but to bring some accountability to the broadcaster, i.e., Electronic Media., That, the Union of India and the State Governments must assume the role of the police, to impose penal sanctions under the prevailing laws, and so as to work in tandem with the Media Tribunal so constituted, under recommendations by the Independent Committee of retired Judges of this Supreme Court of India., That, this Supreme Court of India is the country's last hope and the nation's saviour. It is humbly beseeched that this Supreme Court of India, in the light of the aforesaid facts and submissions, the matters and issues raised herein, need to be decided and dealt with at the earliest., That, the Petitioners have not filed any similar petition or case previously before this Supreme Court of India or before any other High Court., That, this Supreme Court of India has the jurisdiction to entertain the present writ petition. This writ petition is made bona fide and in the interest of justice and the Petitioners have no other efficacious remedy left other than approaching this Supreme Court of India., That, the Petitioners crave leave of this Supreme Court of India to amend or alter the grounds at the appropriate stage, as and when required., That, the Petitioners have no other equally efficacious and alternative remedy, except to invoke the jurisdiction of this Supreme Court of India under Article 32 of the Constitution, inter alia, on the following grounds: an unregulated media which promotes hate speech and fake news is antithetical to the exercise of the rights under Article 19(1) and is also a gross violation of the right of citizens under Article 19(1) of the Right to Fair Information and Proportionate Media Reporting, read with Article 21 of the Constitution; the principal issue before this Supreme Court of India is to bring about a balance between the right to freedom of speech and expression of the Media‑Businesses and the competing right to information of the citizenry under Article 19(1)(a), right to reputation and the right to dignity under Article 21, as well as in the interests of preserving peace and harmony in the nation; the freedom of speech and expression enjoyed by the Media‑Business is not unlimited, and is subject to the restrictions imposed under Article 19(2); the present petition is seeking framing of appropriate guidelines by this Supreme Court of India outlining the broad regulatory paradigm within which media houses can exercise their rights under Article 19(1); the instant petition also prays for establishment of an independent regulatory Tribunal to hear and expeditiously adjudicate upon complaint petitions against the Media‑Businesses filed by the viewers/citizens; the present petition is not to curb the fundamental rights of the Media‑Business, but only to bring about some accountability for misinformation, inflammatory coverage, fake news, breach of privacy, etc., which the Media‑Business has indulged in, only with the aim to further their business, and to bring about consequences for acting in a fashion that is contrary to constitutional goals and morality; the exercise of power by the Electronic Media without any accountability is severely detrimental to the due process of law and contrary to the rule of law; this Supreme Court of India has time and again expressed that the rights of the many are to supersede the rights of the few; the right to freedom of speech and expression enjoyed by the Electronic Media Broadcaster cannot trump the right to fair information enjoyed by the citizenry; the restrictions on the Electronic Media must be placed at a higher footing than the common citizen, in view of the fact that the Electronic Media have a much larger reach, and are doing a public function by employing public airwaves; over the last few years media trials have become the order of the day, which not only have a prejudicial effect on the rights of the accused but also the very concept of media trial is an anathema to the administration of justice; the Ministry of Information and Broadcasting, Union of India, the nodal ministry, has totally failed in its discharge of duties and holding media houses accountable for breach of the programme code framed by it; it is crucial to foresee and understand the consequences of paid, fake and biased news which is all unreliable news; the respected Ministry of Information and Broadcasting, Union of India, which is the trustee of airwaves, presumably has blindfolded itself like King Dhritarashtra of the Mahabharata who knew that his children, the Kauravas, were in the wrong and perpetrating evils, but he did not reprimand, censure or stop them; Electronic Media has become the most powerful medium with unprecedented influence over the minds of the people; the lack of accountability on the Electronic Media channels, which have the power and impetus to set the country ablaze with their hateful and fissiparous discourse, over the last few years, media trials, hate speech, propaganda news, paid news have become the order of the day, thereby impeding the right to fair trial of victims and right to fair and proportionate reporting; reckless reportage by the Electronic Media without accountability cannot be the reading of the right to freedom of speech and expression enjoyed by the Electronic Media; unbridled power is always dangerous, as also the saying goes, power corrupts; absolute power corrupts, absolutely; the Electronic Media has become like an unruly horse, which needs to be tamed.
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However, the Ministry of Information and Broadcasting, Union of India, being the nodal ministry has totally failed in the discharge of duties, in implementing the undertaking of the Electronic Media broadcasters, of compliance with the Programme Code in Rule 5 of the Cable Television Rules, 1994. It is submitted that the Electronic Media Broadcasters are bound by the undertaking to comply with the Programme Code, which is made at the time of applying for permission to Uplink/Downlink their respective channels., Instead of doing service to the nation and working in public interest, of late, the media is afflicted with disseminating misinformation, fake news and propaganda, divisive and schismatic forces of communalism, ethnocentrism, bigotry, casteism, linguism and regionalism, indecent, sleazy, cheap, sensational, scandalous, immoral, inciting, defamatory and disproportionate reports, war‑mongering, superstitious, violent, backward and public disorder‑inducing attitudes, all of which are well beyond the periphery and contours of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Moreover, by the nature of the broadcast, the Electronic Media is wholly negating the right to fair and proper information that is enjoyed by the citizenry., In the circumstances, it has become imperative that the Supreme Court of India as the ultimate sentinel on the qui vive protects and balances the rights of various stake holders so that the fundamental rights of one class of stake holders do not become subservient to the exercise of fundamental rights of the other class., The Constitution of India does not specifically mention the freedom of press. Freedom of press is implied from Article 19(1)(a) of the Constitution. Thus, the press is subject to the restrictions that are provided under Article 19(2) of the Constitution. The power enjoyed by the news broadcasters/electronic media is immense, and without any accountability to the law or the Constitution. It is submitted that untrammeled power is prone to abuse, something that is antithetical to the rule of law., In the pre‑Independence era, the Media was a form of service to the cause of the people's freedom, and was a great juggernaut of social change, reform and awakening, and acted as one of the greatest tools to mobilise the people and consolidate social consciousness for the freedom struggle. The Media of the pre‑independence era was largely run and owned by freedom fighters and great personalities and heroes of our nation, such as Raja Ram Mohan Roy, Bal Gangadhar Tilak, Dadabhai Naoroji, Mahatma Gandhi, Jawaharlal Nehru, Dr. B.R. Ambedkar, etc., While the press and the media continued in the pre‑independence spirit, over time, with changes in the media and society, the news broadcaster and electronic media have used their power only to further their business interests. The Media has mutated from being a Service to being a Business. Journalism mutated from being a Mission to being a Profession. The Media came about from being owned by benevolent and self‑less freedom fighters, to being owned by profit‑oriented big Business and Corporate Houses. With passage of time Media‑Business became a monumentally competitive and cut‑throat commerce, where sensationalism, sleaze and scandal have become the norm and Truth/Facts became subsidiary., Free speech cannot be without regulation or consequence, especially when Article 19(1)(a) is subject to restrictions in Article 19(2), to be imposed reasonably. It is relevant to note that the spread of misinformation or falsities by the news broadcasters and electronic media fall foul of the right to information of the common citizens which is also recognised and guaranteed under Article 19(1)(a)., Under the Indian constitutional setup, it is solely the Judiciary which enjoys the privilege of self‑regulation, being independent and conferred with the same by the Constitution itself. Thus, equating the Media‑Business with the Judiciary, in terms of the privilege of self‑regulation directly strikes upon the Independence of the Judiciary and rattles and shakes the very foundations of the Indian constitutional scheme and the democracy, and the same goes against every notion and canon of law and justice prevailing in India. It is notable that despite being self‑regulated even the Supreme Court of India is not immune from clutches of law and is amenable to regulations under the Judges (Inquiry) Act, 1968., The Media is simply a Business, albeit one which is one of the most powerful structures of power in itself, and thus, the same must be regulated by constitutional norms and principles, because the Democratic Principle expounds that all structures of power must be regulated for the good of all and to preserve the doctrine of Equality as enshrined under Article 14 of the Constitution of India, which is the golden track on which the Constitution runs, otherwise the same shall descend into arbitrariness and corruption., The whole self‑regulatory process makes the Electronic Media Broadcaster a judge in his own case, thereby completely negating the rule of law enshrined in our Constitution. This is more so because the broadcast by the Electronic Media is not only the exercise of the right to freedom of speech and expression of the broadcaster, but is a means to the right to information enjoyed by the citizenry, and therefore the exercise of the right must be done responsibly., Importantly, the Media was only accorded the status of fourth pillar because of the role it played. Now, since its role has changed, from Service to Business, and from Mission to Profession, in such circumstances, it cannot mechanically be referred to as the Fourth Pillar, to avert all judicial attempts at regulating the Media‑Business. It cannot be termed as the Fourth Pillar if it does not raise the people's issues and act as the voice of the voiceless, instead only acts as a TRP‑hunting, profit‑mongering machine., It is needless to say, for the purposes of the plenary and inherent powers and jurisdiction of the Supreme Court of India under Articles 32 and 142 of the Constitution, the Media is well covered under the definition of State under Article 12, squarely falling within the Public Function Test, as laid down by this Court in a plethora of cases. The role of the Media corporations is comparable to sovereign functions because of their mass‑reach and pervasive control over the lives of individuals and having immense power of shaping their lives, having direct control over the content/news/facts being disseminated, and being heavily relied upon by the nation's populace for information, which eventually moulds their thoughts, opinions and ideas., The Union of India and the State Governments must assume the role of the Police, to impose penal sanctions under the prevailing laws, and so as to work in tandem with the Media Tribunal so constituted, under recommendations by the Independent Committee of retired Judges of the Supreme Court of India., Regulation promotes the freedom or the facility which is required to be regulated in the interest of all concerned. It is hence submitted that regulation means regulation in public interest and not contra public interest. The expression regulation cannot possibly be read as contra public interest but in the interest of the public., In the facts and circumstances of the case, it is most respectfully prayed that the Supreme Court of India may graciously be pleased: a) Issue a writ, order or direction for setting up of an independent High Powered Committee headed by a retired Chief Justice or Judge of this Court or High Court and consisting of distinguished citizens from different fields/professions and concerned stake holders of the Official Respondents to scrutinise and review the entire legal framework relating to Media‑Business regulation and recommend appropriate guidelines to be laid down by this Court; AND/OR b) On the receipt of the recommendations of the High Powered Committee, issue a writ order or direction laying down appropriate guidelines for regulation of media in exercise of the plenary and inherent power of this Court under Article 32 and 142 of the Constitution until legislation is introduced; AND/OR c) Issue a writ, order or direction, in the nature of Mandamus issuing necessary directions to the Respondents that the guidelines so framed by this Court in consonance with the prevailing programme code under the Cable Act will govern the field until special legislation is enacted; d) Issue a writ, order or direction, recommending to the Union of India for constitution/setting up of a Media Tribunal to adjudicate upon the complaint petitions against the Media/Broadcasting Channels/Networks, as may be filed by the viewers/citizens and for enforcement of the Guidelines laid down by this Court; e) Pass any such other and further order(s) in addition to or in substitution for the prayers, supra, as this Court may deem fit and proper in the facts and circumstances of the case; f) Award the costs of the petition., I, Sh. Nilesh Navalakha, aged about 45 years (Major), address; 620, Pentagon, Shahu College Road, Parvati, Pune 411009, do hereby solemnly declare as under: That I am the Petitioner No. 1 in the instant petition and I am fully competent to swear and depose this affidavit and as such I am aware of the facts and circumstances of the present case. I say that I have read and understood the contents of the Synopsis & List of Dates at pages B to FF and contents of the Writ Petition as contained in paragraphs 1 to 91. I state that the averments of facts made therein are true to my knowledge, based on records, information from the newspapers/news broadcasters and those of submission of law made in grounds, prayer, and interlocutory applications are true and correct to the best of my knowledge and belief. That the Annexures filed along with the Writ Petition are true copies of their respective originals. That the Petitioners are preferring the present Petition in larger public interest and that there is no personal gain, private motive or oblique reason in filing the Public Interest Litigation. That the Petitioners are seeking exemption from attestation of the instant affidavit, since the country is under a lockdown due to COVID‑19 since 24th March 2020 and undertake to furnish an attested affidavit at a later stage. Verified at Pune on this 27th day of September 2020 that the contents of this affidavit are based on the information derived from the records and also on the basis of the information received and believed to be correct. No part of it is false and nothing material has been concealed or suppressed therefrom., I, Sh. Nitin Memane, son of Bhujangrao M. Memane, aged about 52 years, Occupation: Civil Engineer, Social Activist, Address: B‑701, Gera Emerald City North, Kharadi, Pune 411014, do hereby solemnly declare as under: That I am the Petitioner No. 2 in the instant petition and I am fully competent and authorized to swear and depose this affidavit. I am fully aware of the facts and circumstances of the present case. I say that I have read and understood the contents of the Synopsis & List of Dates at pages B to FF and contents of the Writ Petition as contained in paragraphs 1 to 91. I state that the averments of facts made therein are true to my knowledge, based on records, information from the newspapers and those of submission of law made in grounds, prayer, and interlocutory applications are true and correct to the best of my knowledge and belief. That the Annexures filed along with the Writ Petition are true copies of their respective originals. That the Petitioners are preferring the present Petition in larger public interest and that there is no personal gain, private motive or oblique reason in filing the Public Interest Litigation. That the Petitioners are seeking exemption from attestation of the instant affidavit, since the country is under a lockdown due to COVID‑19 since 24th March 2020 and undertake to furnish an attested affidavit at a later stage. Verified at Pune on this 27th day of September 2020 that the contents of this affidavit are based on the information derived from the records and also on the basis of the information received and believed to be correct. No part of it is false and nothing material has been concealed or suppressed therefrom., 1914 SCC Online PC 89 : 1914 Cri LJ 309 Privy Council Appeal From the Chief Court of Lower Burma Channing Arnold Appellant; Versus Emperor Respondent. Decided on April 7, 1914. The Judgment of the Court was delivered by LORD SHAW: By leave granted by His Majesty in Council this appeal is brought from a conviction and sentence upon the appellant by the Chief Court of Lower Burma, pronounced on 19 October 1912. The charge was one of defamation or criminal libel, and the prosecution was laid under Chapter 21 of the Indian Penal Code. Section 499 gives a definition of defamation, and sets forth ten exceptions, any one of which forms a proper defence to the charge. By section 500 the punishment of defamation shall be simple imprisonment for a term which may extend to two years, or with fine, or with both., The appellant was charged with having defamed Mr G.P. Andrew, Deputy Commissioner and District Magistrate of Mergui, by the publication of two articles in the Burma Critic, a Rangoon newspaper, on 28 April 1912. These articles were entitled A Mockery of British Justice., The appellant had experience as a journalist; he was at one time the Chief editor of the Rangoon Times. He ceased to be editor of that journal at the end of September 1911, and in January 1912 he was registered as one of the proprietors and the editor of the Burma Critic. The articles bear witness to the writer's possession of great invective and declamatory power; his motives have not been challenged except as necessarily involved in the contention that he published serious libels otherwise than in good faith., The proceedings against him were initiated on 11 June 1912 by Mr Andrew, the District Magistrate. On 3 October 1912 the trial began before Sir Charles Fox, the Chief Judge, with a Jury. It was protracted and lasted from 3 to 16 October. On the latter date the Jury returned a unanimous verdict of guilty, and a sentence of one year's simple imprisonment was pronounced. The Board were informed that after undergoing four months' imprisonment the remainder of the sentence was remitted., Their Lordships listened to a lengthy argument in support of this appeal, during which the entire history of three stages of proceedings or sets of circumstances was discussed. These were: the conduct of one McCormick, a planter, who was charged with having abducted and committed rape upon a Malay girl of about eleven years of age; the conduct and proceedings of Mr Andrew as District Magistrate at the investigation which ended in his declining to commit McCormick for trial; and the proceedings at the trial in the present case., It is now important to see what are the provisions of the Penal Code which apply to the case. Section 499 of the Indian Penal Code states that whoever 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 to defame that person, except in the cases hereinafter excepted., The first exception is: it is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether it is for the public good is a question of fact. The appellant claimed no benefit under this exception; he did not suggest that the series of libels or any one of them was true; on the contrary, all of them were admitted to be false., The second exception is: it is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions or respecting his character as far as his character appears in that conduct. The articles did not confine themselves to expressing an opinion as to the conduct of Mr Andrew, but made definite defamatory allegations of fact against him., The ninth exception is: it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. Section 52 of the Code states that nothing is said to be done or believed in good faith which is done or believed without due care and attention., The jury had to determine whether, in publishing the libels admitted to be false, the appellant did so in good faith because he believed them to be true, having given due care and attention. If the jury were satisfied that he gave due care and attention and acted in good faith, the exception formed a defence and the accused would be found not guilty. Otherwise, the accused would be found guilty., The appellant contended that there was misdirection by the Judge and that the jury's minds were diverted to other questions, such as the conduct of McCormick and of Mr Andrew. The learned Judge instructed the jury that the true issue was whether the imputations were published in good faith, after due care and attention had been exercised., The libel, headed A Mockery of British Justice, contained serious allegations that Mr Andrew conspired with Mr Finnie to bury the case, conducted the inquiry in camera, used a paid interpreter who deliberately mistranslated, allowed only certain witnesses, and that the whole inquiry was an outrageous make‑believe and a mockery of English justice., The libels comprised at least seven distinct allegations: conspiracy with Finnie to prostitute justice; bailing out McCormick for a non‑bailable offence; misleading the Malay girl and her family by depriving them of legal assistance; perverting truth by a partisan interpreter; trying the case in camera; not calling certain witnesses; and that Mr Andrew heard the case knowing that certain people objected., If any substantial part of this defamation was true, it would ruin the career of Mr Andrew and others engaged in conspiring with him., The appellant argued three points in support of good faith: reliance on a letter published with the signature of Vigilance addressed to the Rangoon Times dated 31 August 1911; the conduct of Sub‑Divisional Magistrate Mr Buchanan, who acted in good faith despite erroneous conclusions; and the admitted conduct of McCormick himself.
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Their Lordships do not attach much weight to the question of abduction, because it appears that the child had formerly lived in McCormick's house for a short period, and the evidence is somewhat confused as to the conduct of the mother of the child in regard to her absence from the house. The allegation made by McCormick was that he had been informed that this child was suffering from gonorrhoea, that he had taken her to his house, and, there being a hospital eight miles away, had personally examined her, and then passed her on for treatment by the mistress of one of his male servants. Their Lordships find themselves in entire agreement with the learned Judge when he says: It is not surprising that there should be indignation and hot feeling on the part of the sympathisers with the mother of the child Aina, and good reason for feeling indignation at some of the conduct of McCormick. However strong his inclination for amateur doctoring may have been, there could have been no justification for that. It was a thing that no man with a proper sense of decency should have done., Although it is not part of the submission of the counsel for the appellant that McCormick was guilty, their Lordships think it is an element relevant to the consideration of whether Mr Arnold was acting in good faith in these libels to show that he believed that McCormick's own admissions would have justified his committal for trial., The last matter which their Lordships reckon to be a perfectly relevant element in the case which bore upon the point of the accused's good faith was this. After investigating the facts and declining to commit, the Magistrate went on to say that in his opinion McCormick's conduct was pure and philanthropic. Their Lordships cannot agree with such an opinion, and their views coincide with those of the Chief Judge on that subject., They are of opinion that there were several elements in the case which were properly submitted to the jury in support of the defence. Their Lordships, however, do not attach much importance to the other allegations. The grant of bail to the accused rests on a slender foundation. It is held by the judges on the spot, and it was also the opinion of the civil authorities, that the discretion of granting bail applied to this case. It was evidently a case, unless forbidden by statute, for discretion being exercised, and it would appear to their Lordships that much practical hardship would ensue to prisoners unless such discretion existed. They are not prepared to say that the humane view of an accused's rights was mistaken. Their Lordships' opinion is clear that this difficult and delicate point of law could never have been viewed as a substantial element weighing with any reasonable writer in justification of his belief in the truth of the libel. The same observation applies to the other elements in the case which have been fully considered. Their Lordships are of opinion that a fair and stable case in support of the statutory defence and of the belief in the wickedness of Mr Andrew was put forward on the points already enumerated, but that no others were of any real weight. In putting forward the points mentioned, their Lordships think that a case was made which demanded an answer., Such an answer was given and it also was both fair and stable. In the first place a serious and weighty reply was made on the subject of the letter signed Vigilance. It was not confined to the remark that the letter was no valid excuse for a belief in gross slander. When that letter was received by the Rangoon Times, a proper course was taken with the appellant's knowledge. It was forwarded by Mr Stokes, the Assistant Editor, to the Chief Secretary to the Government of Burma, so that there might be official confirmation of its allegations prior to publication. These allegations were examined, and on 31 October the Chief Secretary wrote stating that the Lieutenant‑Governor had caused an inquiry to be made and had found that the allegations against the officers were without foundation. By this time the appellant had ceased to be editor of the Rangoon Times but on 2 November 1911 Mr Stokes forwarded a reply to the Chief Secretary stating that the incident, as far as the Rangoon Times was concerned, was closed., This was not so with regard to the appellant, for in the following spring, on 7 March 1912, an article appeared in the Burma Critic, of which he was then editor, entitled Alleged Grave Scandals in Tenasserim. On inquiry being officially made of the appellant, asking for particulars, the answer given was that the case referred to was that inquired into and disposed of in the previous autumn. The appellant's attention was at the same time called to the fact that Mr Stokes had accepted the reply of the Lieutenant‑Governor. All this took place before the libels in question were published. Their Lordships cannot hold this part of the appellant's case to be satisfactory. An investigation in the department of a Lieutenant‑Governor of great experience resulted in exonerating Mr Andrew from blame, yet the appellant assumed the grave responsibility for re‑opening the matter. He gave the authorities no inkling of any fresh information which had come to his knowledge, and in answer to their inquiry he simply stated that it was the old incident which he was reviving. To date the appellant has not given at their Lordships' Bar or in any Supreme Court of India any statement of any fresh facts which he had discovered. This circumstance was, in their Lordships' opinion, well worthy of consideration by the jury., In the second place, both the judge and the jury had seriously to consider the attitude of Mr Arnold himself. He neither defended the article as true nor gave any assistance on what the actual things were upon which he founded his beliefs, nor finally what steps, if any, he took to investigate their truth before giving them to the public. Thus, although the true issue in the case was his own bona fides and the care and attention which would verify that, Mr Arnold's action when charged gave no help to the Supreme Court of India and must to some extent have embarrassed even his own defence. Having admitted that he assumed responsibility for the articles, he was asked by the Magistrate: “Do you wish to make any explanation of your position in the case as to your bona fides, etc.?” (The Magistrate pointed out that, under section 105, the burden of proof lies upon him.) He replied: “No. I have nothing to say. Everyone, from the Lieutenant‑Governor downwards, knows my character, and I leave it at that.” It was impossible to leave it at that because the libels were there, in all their number and seriousness; the charge was made under the statute, and the law prescribed that the author of such libels could only be excused by showing good faith after due care and attention. It is not in accordance with the proper administration of justice for an accused to brush aside statutory regulations affecting his position. The attitude and absence of the accused may well have been considered by the jury rather destructive than helpful to the defence., In the third place, every officer, judicial or administrative, who investigated this case, except Mr Buchanan, had agreed with the conclusion reached by Mr Andrew, namely, that the charge should be dismissed. This circumstance was peculiarly suited for the appraisal of a local jury., The next circumstance to which their Lordships attach serious importance is the allegation that the prosecutors were led to trial by Mr Andrew, and that Mr Andrew had wickedly conspired to leave them without an advocate and to furnish them with a false interpreter. This allegation was, as turned out, not only untrue but also particularly cruel. Letters were produced showing that instead of taking such an attitude, Mr Andrew's desire throughout was that an advocate should be employed for the prosecution and should be paid by the Government. Letter after letter was written to this effect. On 3 August 1911 Mr Andrew intimated to Mr Buchanan that he would engage an advocate to prosecute, and that his presence and that of Mr Sherard, the investigating officer, would also be required. On 4 August he wrote to Mr Buchanan: “Can you bring up an interpreter trusted by all parties? Ask complainants to choose between two advocates named to conduct their case.” On 7 August, having been unable to obtain such an interpreter, Mr Buchanan stated that the complainant wished to consult a certain Vakil in Rangoon before choosing a lawyer. Mr Andrew wrote: “Kindly do so, and name the advocate early. As regards interpreter, your court interpreter must come along to assist.” On 10 August the sanction was asked to engage Mahomed Ayoob on the terms he asks. The arrangement as to legal assistance broke down because on 12 August the Commissioner at Mergui declined to sanction the proposal to retain an advocate, demanding that Mr Andrew state whether he thought the charges could be substantiated. Mr Andrew answered that he thought the abduction charge alone could be made out. In short, the refusal to provide an advocate was made neither by Mr Andrew nor by his connivance, but in spite of him. With regard to the interpreter, Mr Andrew's anxiety was manifest; he wanted an interpreter trusted by all parties and Musaji, Mr Buchanan's nominee, was employed. No proof that any word was interpreted falsely was found. In their Lordships' opinion these parts of the libel were very gross, and they can see no justification for the proposition that the appellant had any reasonable ground for believing them to be true., It does not appear that there could have been a defence under the statute for those substantial portions of the libellous matter, and the case of Reg v Newman was founded upon this effect. Their Lordships are anxious not to have the case disposed of on a narrow ground. They take these points as included in the matter to be considered before the jury as relevant to the general case of Mr Arnold's justification on the ground that, after due care and attention, he in good faith believed these things to be true., One final matter to be kept in view is that some of the letters last cited were undoubtedly not before Mr Arnold when he wrote the libels, but were before him during the course of his trial. When it was discovered that the truth with regard to Mr Andrew was not that he wickedly conspired to defeat justice, but that he anxiously endeavoured to secure that justice should be furthered and guarded, the duty of the accused, Mr Arnold, was plain. Their Lordships make allowance for the heat of advocacy, which, as noted by the Chief Judge, was great in this case. But when a gross mistake of that kind on a matter of fact, the truth of which when exposed would have ruined any administrative or judicial officer's career, was discovered, the libel should not have been adhered to. The mistake should have been acknowledged and an apology tendered. This was not done; instead the case was conducted to its close on the footing that an unstated defence was the real and good defence, namely, that the libels were true. No one is to be blamed for thinking that the plea of good faith on the part of Mr Arnold sustained a serious shock., The speeches of the learned counsel for the accused have not been printed, but their Lordships heard Mr Wilson, who informed them that the views presented by the senior and junior counsel for the appellant somewhat diverged. It is unnecessary to labour this matter, because no doubt was thrown upon the narrative of the proceedings given by Sir Charles Fox in his charge. There is enough disclosed in the case to show that no light task was thrown upon the judge in disentangling relevant from irrelevant topics and in presenting the true issue to the minds of the jury. The real objection taken at their Lordships' Bar to this charge was that the jury were misdirected, and that the narrative of the learned judge might have left the impression that Mr Andrew had not acted wickedly as the libel alleged. However, it was necessary for the learned judge to state his own view, and their Lordships do not see anything in the charge that gives countenance to the idea that he withdrew this question from the jury. With a large portion of narrative, their Lordships see no occasion to quarrel. Some portions might be the subject of difference of opinion., A charge to a jury must be read as a whole. If there are salient propositions of law, these will be the subject of separate analysis. In a protracted narrative of fact, the determination of which is ultimately left to the jury, the view of the judge may not coincide with the views of others who look upon the whole proceedings. It would not be in accordance with good practice to treat such cases as misdirection if, on the general view, the case has been fairly left within the jury's province. Their Lordships do not say that on any particular point they would differ from the views laid down by Sir Charles Fox, but these observations are made to discount the idea that in the region of fact, unless something gross amounting to a complete misdescription of the evidence has occurred, this Board will interfere. The separate and peculiar position of this Committee under the constitution will be dealt with afterwards., Their Lordships regret to find that there appeared on one side the fallacy that some privilege attaches to the profession of the press as distinguished from members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and his privilege is no higher than that of any other subject. The responsibilities which attach to his power in the dissemination of printed matter may make him more careful, but the range of his assertions, criticisms, or comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position., On the other side it would appear from certain observations of the learned judge that a false doctrine may have been hinted at, that some privilege or protection attaches to the public acts of a judge which exempts him from free and adverse comment. He is not above criticism; his conduct and utterances may demand it. Freedom would be seriously impaired if the judicial tribunals were outside the range of such comment. When the examination before Mr Andrew concluded with his declaration that in his judgment the action of McCormick was pure and philanthropic, the whole trial would seem to have been open to searching observations, and no blame could be attached. But when the criticism was converted into an attack upon the magistrate as a conspirator against justice, a traitor to his oath, a trickster, then it is for the person who has uttered these things to justify them, or, under the Indian Penal Code, to establish affirmatively that he believed them to be true on reasonable grounds. The learned judge properly directed the jury on both matters., A large part of the criticism directed against the charge of the learned judge was that the narrative of the proceedings led inevitably to the conclusion that Mr Andrew was innocent of the alleged dereliction of duty. If so, the result is remarkable, for the charge had impressed the jury's minds with the innocence of Mr Andrew, and that innocence is in the foreground of the admissions made in this case. The foregoing narrative might have been spared, because it is now seen that nearly all of the items in the narrative said to constitute misdirection are parts of a narrative which leads to a conclusion that is in accordance with fact which has been admitted to be true., It is here that the peculiarity of the procedure becomes evident, for the narrative thus criticised was undoubtedly the narrative given by the learned judge to the jury in order to counteract an improper use of the procedure. While the truth of the libels was not asserted formally, and while the admission of their falsity was formally granted, an endeavour was repeatedly made to withdraw all this and to persuade the jury to take all that was asserted as true. Such things may occur; but it is the duty of judges to put what check they can upon them, and in the present case their Lordships see no occasion to think that the learned judge failed to exercise that duty with propriety., From what has been said it will clearly appear that there was material before the jury on both sides of this case, and that the determination was on a subject peculiarly within the jury's province. In their Lordships' opinion the case was not improperly withdrawn from the jury's domain on fact, and they were not misdirected in law. Even if it were conceded that a meticulous examination of the judge's charge or conduct could reveal flaws, it is the duty of their Lordships to consider the special position and function of the Judicial Committee of the Privy Council, as advisers of the King, in criminal cases. The frequency of applications made to the Board for leave to appeal against judgments of criminal tribunals in various parts of the Empire, and the thoroughness with which the powers and practice of the Judicial Committee were discussed, incline their Lordships to survey this important topic., The question is not truly one of jurisdiction. The power of His Majesty under his royal authority to review proceedings of a criminal nature, unless such power has been parted with by statute, is undoubted. On the other hand, there are constitutional and administrative reasons why this power should not be lightly exercised. The overriding consideration is justice itself. If throughout the Empire it were supposed that the course and execution of justice could suffer serious impediment, which in many cases might amount to practical obstruction, by an appeal to the royal prerogative of review on judicial grounds, then a severe blow would be dealt to the ordered administration of law within the King's dominions., These views were expressed more than fifty years ago by Dr Lushington in his judgment in Queen‑Empress v Joykissen Mukerji, and Lord Kingsdown, in Falkland Islands Company v Reg, stated: “It may be assumed that the Queen has authority, by virtue of Her Prerogative, to review the decisions of all Colonial Courts, whether civil or criminal, unless Her Majesty has parted with such authority. But the inconvenience of entertaining such appeals in strictly criminal cases is so great, the obstruction it would offer to the administration of justice in the colonies is so obvious, that it is very rarely that applications to this Board similar to the present have been attended with success.” Their Lordships state that the principle and practice laid down by Lord Kingsdown still remain those followed by the Judicial Committee., There have been various important cases in recent times. The first is In re Billet. While Billet's case was in form an application within the ambit of criminal law, the substance brought before the Judicial Committee was a civil matter. The appeal was by a barrister and solicitor against a verdict convicting him of perjury, but there had been a consequential order directing him to be struck off the roll of practitioners, and special leave was granted to appeal in reference to that order. Lord Blackburn referred to Lord Kingsdown's judgment as authoritative and binding. After citing that learned judge, Lord Blackburn added: “In this statement of the general practice our Lordships agree. They are not prepared to advise Her Majesty to make this conviction for perjury an exception if it were not the sole foundation for the subsequent order of 27 March 1885, and liberty accordingly was granted to appeal against the order of 27 March 1885, striking him off the roll, and also to the extent above stated and no further, against conviction for perjury.”, While the familiar sentences from Lord Watson are frequently cited with reference to criminal review by this Board, the circumstance should not be forgotten. It appears to dispose of the argument that the practice of the Board was purely criminal in any respect either advanced or distorted from the position pronounced by Dr Lushington and Lord Kingsdown about a quarter of a century before. Lord Watson in Billet observed that the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings unless it is shown that, by a disregard of the forms of legal process, or by violation of the principles of natural justice, substantial and grave injustice has been done., The present case brings before the Board the question of how those words are to be interpreted. If they are to be interpreted to mean that wherever there has been misdirection in any criminal case, leaving it uncertain whether that misdirection affected the jury's mind, then a miscarriage of justice could be affirmed, the result would be to convert the Judicial Committee into a Court of Criminal Review for the Indian and Colonial Empire. Their Lordships are of opinion that no such proposition is sound. This Committee is not a Court of Criminal Appeal. Its practice is that it will not interfere with the course of criminal law unless there has been an interference with the elementary rights of an accused that places him outside the pale of regular law, or, within that pale, a violation of the natural principles of justice so demonstratively manifest as to convince their Lordships that the result arrived at was opposite to the result they would have reached, and that the same opposite result would have been reached by the local tribunal if the alleged defect had been avoided. The limited nature of the appeal in Billet does not extend beyond those propositions., The argument for the appellant cited Makin v Attorney‑General for New South Wales. Makin's case did not raise the question at issue here. It depended upon the construction of section 423 of the Criminal Law Amendment Act 1833 (a New South Wales statute). That section set up the judges of the Supreme Court as a tribunal to determine questions submitted to them, and there was a proviso that there should be no quashing unless for some substantial wrong or miscarriage of justice. This Board stated that under that section the judges have not been substituted for the jury. In their Lordships' opinion substantial wrong would be done to the accused if he were deprived of the jury on the facts proved by legal evidence and a verdict of the court founded merely upon perusal of the evidence were substituted., The second case relied upon was Vaithinatha Pillai v Emperor, in which this Board sustained an appeal. The circumstances were extraordinary, and appeared to the Board to imperatively demand intervention because the foundations of justice seemed to be attacked. A whole body of inadmissible evidence had been received. One witness whose evidence was relevant supported another witness who was a confessed perjurer. The remaining witness had given under oath conflicting and contradictory accounts in previous judicial proceedings before the magistrate and certain officials.
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If true, observed Lord Atkinson, they show that these officials, or at least the Sub‑Inspector, induced the witness to forswear himself and found in him a pliant instrument ready to give false evidence upon oath to secure the conviction of his own father; and if false they show that the witness was ready to commit deliberate perjury whenever he was confronted with the inconsistencies in his former statements. There is no alternative. The simple case confronting the Board was a case of a subject sentenced to death upon no evidence at all. In these circumstances, although the principle of Dillefs case was again reaffirmed, their Lordships did not see their way to refrain from interfering., The third case referred to is that of Louis Edouard Lanier v. The King and, fortunately, it is seldom that such a travesty of justice can be witnessed. One of the notable features of the case had reference to the Judge himself. He, as narrated in the report, was a member of the family Council which instigated the proceedings and himself was a party to appointing two Barristers to conduct the prosecution and arranged their fee. The indictment was altered by drastic amendments, the trial was hurried, but the narrative need go no further. In short, the Council for the Crown at the Bar of this Board very properly admitted that he could not contend that any Jury on the evidence submitted would have convicted the appellant of crime. The Board was of the opinion that the sentence pronounced against the appellant formed such an invasion of liberty and such a denial of his just rights as a citizen that their Lordships felt called upon to interfere., The Board took care to repeat that it did not lightly interfere, and the language of Lord Watson in Dillefs case was again cited. It was pointed out that the interference was not on any matter of form, but because of matters lying at the very foundation of justice, since the Judge had been a Judge in his own cause; justice had gravely and injuriously miscarried. Lanier stands as a rare case in which this Board would advise the interposition of His Majesty the King with the course of criminal justice in the colonies or dependencies. That extreme case requires demonstrable subversion of justice at its foundations, making it a matter of general imperial concern that, by way of an appeal to the King, justice be restored to its rightful position in that part of the Empire., Their Lordships were referred to the dicta of the Judge and the rules set up with regard to the procedure of the Court of Criminal Appeal in England; but those rules are not adopted by this Board, which is not a Court of Criminal Appeal. The authority of those decisions, which apply to a different system, a different procedure, and a different structure of principle, must be excluded from any consideration of the procedure of this Board in advising His Majesty. This view is in entire accord with recent proceedings of this Board on applications for leave to appeal, for example the case of Clifford v. Emperor on 17 November, where their Lordships referred to the judgment of the Lord Chancellor in that and other refusals., The application to the present case is simple. Even if this Committee were a Court of Criminal Appeal it is hardly doubtful that the appeal would fail. A fortiori, their Lordships are left in no doubt as to their own duty in conformity with the practice of the Board. They will humbly advise His Majesty that the appeal be dismissed. There will be no order as to costs. Appeal dismissed., The Constituent Assembly of India met in the Constitution Hall, New Delhi at half past nine o’clock on 1 December 1948. The Vice‑President, Doctor H. C. Mookherjee, presided. Shri H. V. Kamath (Central Provinces and Berar: General) requested that Shri Alladi Krishnaswami Ayyar be allotted a seat in the centre of the hall so that he may be heard and appreciated. The Vice‑President announced that discussion on Article 12 had been completed and Dr. Ambedkar’s reply recorded. He then put the various amendment motions to the vote., The first motion inserted after the word ‘title’ the words ‘not being a military or academic distinction’; it was adopted. The second motion to insert after the words ‘be conferred’ the words ‘or recognised’ was negatived. A motion to insert after the word ‘State’ the clause ‘and the State shall in no way recognize any title conferred by the British Government on any citizen of India prior to 15 August 1947’ was negatived. A motion to substitute clause (2) of Article 12 with ‘No title conferred by any foreign State on any citizen of India shall be recognised by any State’ was negatived. Finally, the motion that Article 12, as amended, stand as part of the Constitution was adopted., The Vice‑President then turned to Article 13. Shri Damodar Swarup Seth (United Provinces: General) moved that Article 13 be substituted with the following: ‘13. Subject to public order or morality the citizens are guaranteed – (a) freedom of speech and expression; (b) freedom of the press; (c) freedom to form association or unions; (d) freedom to assemble peaceably and without arms; (e) secrecy of postal, telegraphic and telephonic communications. 13‑A. All citizens of the Republic shall enjoy freedom of movement throughout the whole of the Republic. Every citizen shall have the right to sojourn and settle in any place he pleases. Restrictions may, however, be imposed by or under a Federal Law for the protection of aboriginal tribes and backward classes and the preservation of public safety and peace.’ He observed that the present wording omitted an explicit guarantee of freedom of the press and that the clause allowing the State to legislate on matters of decency, morality and the foundation of the State effectively nullified the freedoms guaranteed., Mister Vice‑President noted that the guarantee of freedom of speech and expression would not affect existing laws on libel, slander, defamation, sedition and other matters that offend decency or undermine the authority of the State, thereby rendering the right virtually ineffectual. He quoted Shri S. K. Vaze of the Servants of India Society, who warned that without proof of governmental mala fides the Supreme Court would have no alternative but to uphold restrictive legislation. The Draft Constitution also empowered the President to issue proclamations of emergency whenever the security of India was threatened, giving the President the power to suspend civil liberties, which Mister Vice‑President likened to a declaration of martial law., Various members moved amendments to delete the words ‘subject to the other provisions of this article’ and to replace them with ‘subject to this Constitution and the laws thereunder or in accord therewith at any time in force’, and to add the words ‘and are guaranteed’ after ‘all citizens shall have’. Shri Mihir Lal Chattopadhyay (West Bengal: General) argued that the article should begin with a positive enumeration of rights rather than with provisos. Professor K. T. Shah (Bihar: General) moved to insert after the word ‘expression’ the words ‘of thought and worship; of press and publication;’ thereby expanding the scope of freedom of speech to include freedom of worship and of the press. He expressed amazement at the omission of these essential civil liberties in the draft., Mister Vice‑President allowed certain amendments to be moved and noted which were not moved, including amendments numbered 413, 414, 419, 420, 421, 424, 425, 426, 427, 428, 429, 430 and 432. He also recorded that amendment 426 was covered by clause (1) of the Explanation to Article 19 and therefore not moved.
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Mr. Naziruddin Ahmad asked, \Will all the others be put to the vote?\ The Vice‑President replied, \Of course.\ Mr. Ahmad then moved: \That at the end of sub‑clause (c) of clause (1) of Article 13, the words “for any lawful purpose” be inserted.\ The Honourable Shri K. Santhanam (Madras: General) raised a point of order, noting that sub‑clause (4) covers this position in greater detail., Mr. Ahmad said he had carefully considered the objection and intended to highlight the difficulty of that view, which was the only reason he moved the amendment. He explained that the purpose of the amendment was to subject the people's freedom of speech, freedom of forming associations or unions, and freedom of movement throughout the territory to the condition that they be exercised for a lawful purpose., He noted that Mr. Santhanam did not quarrel with the principle but argued that the conditions were already expressed in clauses (2) to (6). Mr. Ahmad drew attention to sub‑clause (b) of clause (1) of Article 13, which gives the right to assemble ‘peaceably and without arms’. He argued that the words ‘peaceably and without arms’ might be considered unnecessary because the condition is already provided for in clause (3). He proposed that the words ‘for any lawful purpose’ be inserted in sub‑clauses (a), (c), (d), (e), (f) and (g) as well, so that they become part of the Fundamental Right and cannot be abrogated by the Legislature., He stated that if the words are inserted in those sub‑clauses, they will be beyond the scope of any legislature to interfere, whereas the existing clauses (2) to (6) could be interfered with by the Legislature. This difference motivated his amendment. (Amendments No. 431 and Nos. 433 to 437 were not moved.), Shri H. V. Kamath (Madras: General) moved: \That after sub‑clause (g) of clause (1) of Article 13 the following new sub‑clause be added: (h) to keep and bear arms; and that after clause (6) a new clause be added: (7) Nothing in sub‑clause (h) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in the interests of public order, peace and tranquility, restrictions on the exercise of the right conferred by the said sub‑clause.\, Mr. Kamath expressed a desire for additional time to present his case fully, noting that the amendment would put an end to a phase of the ignominious past of more than a hundred years. He also pointed out that the subtitle ‘Rights of Freedom’ had been omitted from the draft before Article 13, although it appeared in the Report of the Fundamental Rights Sub‑Committee presided over by the Honourable Sardar Patel., He recalled that the demand for the right to keep and bear arms had been a universal demand arising from protest against the oppressive Arms Act of the British Government and had been embodied in various Congress resolutions, including the historic Resolution on Fundamental Rights passed at Karachi, which listed the right: \Every citizen has the right to keep and bear arms in accordance with regulations and reservations made in that behalf.\, Mr. Kamath argued that the amendment should not make the right absolute; therefore he proposed a proviso restricting the right in the interests of public order, peace and tranquility, to prevent abuse by saboteurs and other elements. He emphasized that law‑abiding citizens have always suffered when such privileges are misused., He observed that the Constitution already incorporates rights such as free movement throughout India and freedom to reside and settle anywhere, but the right to keep and bear arms has been omitted. He warned that rejecting this amendment could give the impression that the Government does not trust the people or has no faith in them., Mr. Kamath referenced Mahatma Gandhi’s statement, \Resist, defend, non‑violently if possible, but violently if necessary; what I hate is cowardice,\ and noted that the Honourable Sardar Patel had also advocated resisting violently when necessary. He urged the House to accept the amendment to rectify a disgraceful phase of the past., The Vice‑President asked whether the first part of Amendment No. 443 would be pressed. Shri Shankarrao Deo (Bombay: General) replied, \No, Sir.\ Maulana Hasrat Mohani (United Provinces: Muslim) expressed wholehearted support for the motion., The Vice‑President suggested postponing the general discussion until all amendments had been moved and offered the Maulana Sahib an opportunity to speak., Mr. Mohammed Ismail Sahib (Madras: Muslim) moved: \That after sub‑clause (g) of clause (1) of Article 13, the following new sub‑clause be added: (h) to follow the personal law of the group or community to which he belongs or professes to belong; (i) to personal liberty and to be tried by a competent court of law in case such liberty is curtailed.\, Shri C. Subramaniam (Madras: General) raised a point of order, stating that the House had already passed a directive principle calling for a uniform civil code, and that the proposed amendment allowing each community to follow its own personal law was contrary to that principle., Mr. Ismail Sahib responded that personal law is part of the religion of a community and that interference with personal law would be seen as interference with religion. He argued that people should be given liberty to follow their personal law, noting that even within the Muslim community there are sections that do not follow the prescribed personal law, and that it would be unreasonable to compel others to abandon their religious personal law., Pandit Thakur Dass Bhargava (East Punjab: General) asked whether the Honourable Member was aware of the restrictions on cow‑slaughter in Pakistan, Afghanistan and several Muslim countries, and noted that similar restrictions had existed in India under Muslim rulers., Mr. Ismail Sahib clarified that the question of personal law affects only the communities that follow those laws and does not compel any other community. He cited examples from Turkey, Egypt and Yugoslavia where minorities have been granted the right to follow their own personal laws., He moved an additional clause: \(7) Nothing in clauses (2) to (6) of this article shall affect the right guaranteed under sub‑clause (h) of clause (1) of this article,\ and further added sub‑clause (i): \to personal liberty and to be tried by a competent court of law in case such liberty is curtailed.\, Shri C. Subramaniam observed that questions of personal liberty are dealt with only under Article 15, which states: \No person shall be deprived of his life or personal liberty except according to procedure established by law…\ He questioned the relevance of discussing personal liberty under Article 13., Mr. Ismail Sahib replied that although personal liberty is mentioned in Article 15, it is appropriate to bring the matter under Article 13 because it concerns the various freedoms of the citizen, and that there is nothing wrong with addressing it there., He quoted the Constitution of Yugoslavia, which provides that a person may be placed under arrest only by a written order of a competent authority stating the charge, that the order must be communicated within 24 hours, and that an appeal may be lodged in a competent court of law within three days, after which the competent court must confirm or annul the arrest within two days.
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Public officials who infringe this provision shall be punished for illegal deprivation of liberty. Sir, ours is a bulky Constitution. Our friends congratulated themselves in having produced the bulkiest Constitution in the world. And this Constitution, from which I read out an extract just now, contains only twelve articles. It is a much smaller Constitution than ours and yet in the matter of personal liberty it has made such an elaborate provision as that I mentioned. This bulky Constitution of ours does not find more than a few words where this all important question of personal liberty is concerned. Now, Sir, there are various Public Safety Acts enacted and enforced in the various provinces of the country. Here, personal liberty as it stands is almost a mockery of personal liberty. A man is being arrested at the will and pleasure of the executive. He is put in prison and he does not even know for what he has been imprisoned or for what charge he has been detained. Even where the law puts the obligation on the Government to reveal to him the reasons for which he has been detained, the executive takes its own time to do so. There are cases in which the persons concerned were not informed of the charge for weeks and months and when the charges were communicated, many of them were found to be of such a nature that they could not stand before a court of law for a minute. No right has been given to a detainee or a person arrested or detained to test the validity of the order before a court of law. This kind of administration of law was not known even under foreign rule, that is, under British rule. Now, Sir, another contention is being indulged in, and that is that it was different when the Britisher, the foreigner was in the country and that now it is our own rule. True, but that does not mean that we can deal with liberty of the citizens as we please. Bureaucracy is bureaucracy, whether it is under foreign rule or self‑rule. Power corrupts people not only under foreign rule, but also under self‑government. Therefore, Sir, the citizen must be protected against the vagaries of the executive in a very careful manner as other self‑governing countries have done. In almost every country in the world, they have made elaborate provision for protecting the personal liberty of the citizen. Why should India alone be an exception, I do not understand. Therefore, the framers of the Constitution, I hope, will reconsider this question and make suitable provisions for the protection of the liberty of the person., Sir, in this amendment of mine I have not gone elaborately into the question of personal liberty. I only want the citizen concerned to be given the right of going to, and being tried by, a court of law, if his personal liberty is curtailed. That one precious right I want to be given to every citizen of India. May I also, Sir, move the other consequential amendments included in amendment No 502. I have moved only the one on page 53 of the List of Amendments, namely new subclause (7). That relates to personal law. May I move now the other portion of the amendment relating to new clauses (8) and (9) on page 54 of the List?, Mister Vice‑President: The Honourable Member may do so, but without making a speech., Mister Mohammed Ismail Sahib: Sir, I move that the following new clauses be added: (8) Nothing in clauses (2) to (6) shall affect the right guaranteed under sub‑clause (i) of clause (1) of this article. (9) No existing law shall operate after the commencement of this Constitution so far as the same affects adversely the right guaranteed under sub‑clause (i) of clause (1) of this article and no law shall be passed by the Parliament or any State which may adversely affect the right guaranteed under sub‑clause (i) of clause (1) of this article., Mister Vice‑President: We shall now go on to amendments Nos. 442, 499, the second part of 443, 468 and 501. These are all of similar import. I hold that the only two amendments which can be moved under the new regulations are amendments Nos. 442 and 499. The others will be voted on., Shri M. Ananthasayanam Ayyangar (Madras: General): All these relate to free choice in the election of representatives. In a sense this is a new subject and may on that account be held over for consideration., Mister Vice‑President: What about 499?, Pandit Thakur Dass Bhargava: That also relates to the same subject., Mister Vice‑President: The whole group will be held over for consideration. (Amendment No. 444 was not moved.), Mister Vice‑President: Amendment No. 445., Professor K. T. Shah: Sir, I beg to move: That the following new clause be added after clause (1) of article 13: 'Liberty of the person is guaranteed. No person shall be deprived of his life, nor be arrested or detained in custody, or imprisoned, except according to due process of law, nor shall any person be denied equality before the law or equal protection of the laws within the territory of India.', Sir, this again is of the same species of amendments which I am trying my best to place before the House, that is to say, the enunciation and incorporation of those elementary principles of modern liberal constitutions in which it is a pity our Constitution seems deliberately to be lacking. The liberty of the person, ever since the consciousness of civil liberties, has come upon the people, has been the main battleground of the autocrats and those fighting against them. In no single instance other than this has the power of autocracy wanted to assert itself against the just claims of the individual to be respected in regard to his personal freedom. The liberty of the person to fight against any arbitrary arrest or detention, without due process of law, has been the basis of English constitutional growth, and also of the French Constitution that was born after the Revolution. The autocrat, the despot, has always wished, whenever he was bankrupt of any other argument, just to shut up those who did not agree with him. It was, therefore, that any time the slightest difference of opinion was expressed, the slightest inconvenience or embarrassment was likely to be caused by any individual, the only course open to those who wanted to exercise autocratic power was to imprison or arrest or detain such a person without charge or trial. It has been in fact in many modern constitutions among the most cardinal articles that the liberty of the person shall be sacred, shall be guaranteed by the Constitution. We are covering new ground and should not omit to incorporate in our Constitution those items which in my opinion ought to be sacrosanct, which would never lose anything by repetition, and which would also add to our moral stature. This Constitution, Sir, was drafted at a time when people were going through extraordinary stress and strain. The tragic happenings of some twelve or fourteen months ago were no doubt responsible for influencing those who drafted this Constitution to feel that in the then prevailing goods it was necessary to restrict somehow the freedom of the individual. Therefore it is that the freedom of the individual, the sacredness and sanctity of personal liberty has been soft‑pedalled in this Constitution. But now after an interval of fourteen months I would suggest to this House that these sad memories should be left to the limbo where they deserve to remain. We have had no doubt the unfortunate experiences in which individuals moved by whatever sentiments had tried to exert violence and do injury to their fellows which no civilised State can put up with. It was therefore at the time necessary that such individuals should be apprehended immediately. In emergencies like this, in cases like this, if you wait for performing the due processes of law, if you wait for reference to a magistrate for the issue of a proper warrant, or compliance with all the other formalities of legal procedure to be fulfilled, it is possible that the ends of justice may not be served, it is possible that the maintenance of law and justice may be endangered. But, Sir, I venture to submit to this House that was an extraordinarily abnormal situation which we hope will not recur. Constitution should be framed, not for these abnormal situations, but normal situations and for reasonable people who it must be presumed will be normally law‑abiding and not throw themselves entirely to the mercy of these goondas. We are making a constitution, Sir, for such types of people and not for those exceptions, the few who might have temporarily lost the possession of their senses, and who therefore may be dealt with by extraordinary procedure. We have in this Constitution as we have in many other Constitutions provisions relating to a state of emergency where the normal Constitution is suspended. I am not at all enamoured of these extraordinary exceptions to the working of constitutions; but even I might conceive that in moments of emergency it may be necessary, however regrettable it may be, to suspend constitutional liberties for the time being. But we must not, when framing a constitution, always assume that this is a state of emergency, and therefore omit to mention such fundamental things as civil liberties. I, therefore, want to mention categorically in this Constitution that the liberty of the person shall be respected, shall be guaranteed by law, and that no person shall be arrested, detained or imprisoned without due process of law. That process is for you to provide. That process is for laws made under this Constitution to lay down. And if and in so far as that process is fulfilled, there is no reason to fear that any abuse of such individual liberty will take place. Why then deny it, why then omit the mention of personal liberty that has all along been the mark of civilised democratic constitutions against the autocratic might of unreasoning despots? I am afraid, looking at the fate of most of my amendments, that I may perhaps be hurling myself against a blank wall. But I will not prejudice my hearers and certainly not the draftsmen by assuming that they are unreasoning until they prove that they are guilty of utterly unreasoning opposition., Mister Vice‑President: Amendments Nos. 446, 447 and 448. These are all of similar import. Amendment No. 448 may be moved. It stands in the joint names of Shrimati Renuka Ray, Doctor Keskar, Shri Satish Chandra and Shri Mohanlal Gautam. (Amendments Nos. 448 and 446 were not moved.), Mahboob Ali Baig Sahib Bahadur (Madras: Muslim): Sir, there is another amendment in my name, amendment No. 451: that is for the deletion of clauses (2), (3)., Mister Vice‑President: That comes under another group which will be dealt with hereafter., Mahboob Ali Baig Sahib Bahadur: Then, alternatively, I shall move amendment No. 447. Sir, I move: That clauses (2) to (6) of article 13 be deleted and the following proviso be added to clause (1): 'Provided, however, that no citizen in the exercise of the said right, shall endanger the security of the State, promote ill‑will between the communities or do anything to disturb peace and tranquility in the country.', Mister Vice‑President: Sir, to me it looks as if the fundamental rights are listed in clause (1) only to be deprived of under clauses (2) to (6), for in the first place, these fundamental rights are subject to the existing laws. If in the past the laws in force, the law‑less laws as I would call them, the repressive laws, laws which were enacted for depriving the citizens of their human rights, if they have deprived the citizens of these rights under the provisions of clauses (2) to (6), they will continue to do so. The laws that I might refer to as such are the Criminal Law Amendment Acts, the Press Acts and the several Security Acts that have been enacted in the Provinces. And these clauses (2) to (6) further say that if the existing laws are not rigorous, repressive and wide enough to annihilate these rights, the States as defined in article 7 which covers not only legislatures, executive Governments and also the local bodies, nay, even the local authorities can complete the havoc. I am not indulging in hyperbole or exaggeration. I shall presently show that there is not a iota of sentiment or exaggeration in making this criticism. Fundamental rights are fundamental, permanent, sacred and ought to be guaranteed against coercive powers of a State by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights will be reduced to ordinary rights and cease to be fundamental. That is the import, the significance of fundamental rights. Then, Sir, it is said by Doctor Ambedkar in his introductory speech that fundamental rights are not absolute. Of course, they are not; they are always subject to the interests of the general public and the safety of the State, but the question is when a certain citizen oversteps the limits so as to endanger the safety of the State, who is to judge? According to me, Sir, and according to well‑recognised canons, it is not the executive or the legislature, but it is the independent judiciary of the State that has to judge whether a certain citizen has overstepped the limits so as to endanger the safety of the State. This distinction was recognised by the framers of the American Constitution in that famous Fourteenth Amendment which clearly laid down that no Congress can make any law to prejudice the freedom of speech, the freedom of association and the freedom of the press. This was in 1791, and if the American citizen transgressed the limits and endangered the State, the judiciary would judge him and not the legislature or the executive. Even in the case of Britain where there is no written constitution two prominent and effective safeguards were there. They were governed by the law of the land. The law of the land is the law which gave them freedom of thought, freedom of expression and they cannot be proceeded against without due process of law. These were the two safeguards. It is only in the German Constitution that we find restrictions such as those in clauses (2) to (6). It is only in the German Constitution that the fundamental rights were subject to the provisions of the law that may be made by the legislature. That means that the citizens could enjoy only those rights which the legislature would give them, would permit them to enjoy from time to time. That cuts at the very root of fundamental rights and the fundamental rights cease to be fundamental. I dare say, Sir, you know what was the result. Hitler could make his legislature pass any law, put Germans in concentration camps without trial under the provisions of law made by the legislature of Germany. We know what the result was. It was regimentation, that every German should think alike and anybody who differed was sent to concentration camps. Totalitarianism, fascism was the result., (Mister Vice‑President rang the time bell.) I would request you to give me some time more. I am just developing the point., Mister Vice‑President: Sorry, you cannot have time without my permission. At the proper time, I would request you to finish and take your seat. I hope you will respect my wishes., Mahboob Ali Baig Sahib Bahadur: Sir, it is these wide considerations that were responsible for the deletion of such clauses by this august Assembly on the 30th April 1947, when Sardar Patel who was the Chairman of the Committee to report on Fundamental Rights, presented these Fundamental Rights. He moved for the deletion of all these provisos and in the discussion on the 30th of April 1947, many prominent men including Pandit Jawaharlal Nehru took part, and all these provisos were deleted. The proceedings can be found on pages 445 to 447. Here, the Prime Minister of India says: 'A fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution.' Therefore, Sir, in this august Assembly on the 30th of April 1947, after discussion in which prominent men including Mister Munshi took part, these provisos were deleted. This departure now to re‑introduce these provisions, I submit, with great respect, is a departure which is retrograde and I submit, Sir, that we ought not to allow it. My submission is that the existence of these three provisos is the very negation of the Fundamental Rights. I would request you to consider this question from three or four points of view., (Mister Vice‑President again rang the time bell.) With your permission, Sir, Mister Vice‑President: No; there are many more speakers. I must now insist upon your obeying my orders., Mahboob Ali Baig Sahib Bahadur: A few more minutes, Sir., Mister Vice‑President: I have given you enough time. There are other speakers. I have an obligation towards them also. Now, we shall go to the next two amendments. One is amendment No. 449 and the other is amendment No. 453. Of these two, I think amendment No. 453 is more comprehensive and may be moved. It stands in the joint names of Doctor Pattabhi Sitaramayya and others. There is also an amendment to that amendment., Shri M. Ananthasayanam Ayyangar: Sir, I submit that this amendment No. 453 which stands in our joint names may be taken as formally moved. I find in the order sheet, in list No. IV a further amendment to this amendment. I accept that amendment, Sir. If you kindly give permission to move that amendment, I shall accept it and it is not necessary to move this amendment., Mister Vice‑President: Mister Munshi. Shri H. V. Kamath: On a point of order, Sir, unless this amendment is moved, no amendment can be moved to this. This cannot be taken as moved., Mister Vice‑President: Do you want that he should read over the amendment? I overlooked it. Mister Munshi., That for amendment No. 86 in the additional list which runs as follows: That for amendment No. 453 of the list of Amendments, the following be substituted: 'That for clause (2) of article 13, the following be substituted: (2) Nothing in sub‑clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation, or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.', Sir, before I go to the merits of the amendment, I should like to point out a verbal error which I am sure my Honourable Friend Doctor Ambedkar will permit me to correct. After the words, 'shall affect the operation of any existing law', I propose that the words 'in so far as it relates to' should be added; because that connects this clause with 'to libel, etc.' This would make the meaning clear and I am sure my Honourable Friend will accept it. As regards the merits, the changes sought to be made are two. In the original clause, the word 'sedition' occurs. The original clause reads as follows: 'relating to libel, slander, defamation, sedition or any other matter'. The amendment seeks to omit the word sedition. Further the amendment seeks to substitute the words 'undermines the authority or foundation of the State' by the words ..., Mister Naziruddin Ahmad: On appointment of order, Sir, we have not got this amendment at all. In list IV the number does not tally at all. I believe, Sir, it was circulated today and it cannot be taken up. We should be given some breathing time in order to understand what is going on., Mister Vice‑President: I think amendments to amendments can be permitted up to the time when the amendment is moved. I understand that this was placed on the table before each member., Shri K. M. Munshi: Really speaking, the original amendments numbers 458 and 461 have been brought under a single amendment. There is nothing new in this amendment, Sir., Mister Vice‑President: Go on, Mister Munshi., Pandit Hirday Nath Kunzru (United Provinces: General): Sir, may I request Mister Munshi to read out his amendment, once again? What is it an amendment to?, Shri K. M. Munshi: This is amendment to amendment No. 453, on page 29. In effect, it combines two amendments which are already on the list. It reads: 'That for clause (2) of article 13, the following be substituted: (2) Nothing in sub‑clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation.' Then comes another change: 'or any matter which offends against decency or morality.' Then another change: 'which undermines the security of, or tends to overthrow the State.' That is exactly the wording of amendment No. 461., Shri Mahavir Tyagi (United Provinces: General): May I take it that the word morality has been taken out?, Shri K. M. Munshi: I read the word morality., Mister Vice‑President: You need be under no sort of apprehension so far as that is concerned., Shri K. M. Munshi: The House will not permit me to do anything of the sort. Sir, the importance of this amendment is that it seeks to delete the word sedition and uses a much better phraseology, viz. 'which undermines the security of, or tends to overthrow, the State.' The object is to remove the word sedition which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the State., Shri Amiyo Kumar Ghosh (Bihar: General): On a point of information, I want to know whether without moving the original amendment, as amendment, to it can be moved?, Mister Vice‑President: The amendment was moved formally., Shri K. M. Munshi: I was pointing out that the word sedition has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of Law all over the world. Its definition has been very simple and given so far back in 1868. It says 'sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government'. But in practice it has had a curious fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill will towards Government, was considered sedition once. Our notorious Section 124‑A of the Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124‑A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the State. Therefore the word sedition has been omitted. As a matter of fact the essence of democracy is criticism of Government. The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy. The object therefore of this amendment is to make a distinction between the two positions. Our Federal Court also in the case of Niharendu Dutt Majumdar Vs King, in III and IV Federal Court Reports, has made a distinction between what Sedition meant when the Indian Penal Code was enacted and Sedition as understood in 1942. A passage from the judgement of the Chief Justice of India would make the position, as to what is an offence against the State at present, clear. It says at page 50: 'This (sedition) is not made an offence in order to minister to the wounded vanity of Governments but because where Government and the law ceases to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.' This amendment therefore seeks to use words which properly answer to the implication of the word Sedition as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word sedition only is sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate Section 124‑A of the Indian Penal Code or its meaning which was considered good law in earlier days. Sir, with these words, I move this amendment., Shri H. V. Kamath: On a point of clarification, may I ask my learned friend Mister Munshi to examine whether the deletion of the word other from the phrase any other matter will not create some doubt or difficulty about the meaning of this amendment? Because if he will look up article 13 in the Draft Constitution, he will find that the phrase used is 'any other matter'. Here the word other is deleted which will mean that so far as slander, defamation and libel are concerned, they cannot offend against decency or morality, but only some other matter can. Is it the contention of Mister Munshi that neither defamation, slander nor libel offends against decency and morality?, Shri K. M. Munshi: In the original clause of this article as drafted the words were 'libel, slander, defamation, sedition or any other matter which offenses against decency or morality or undermines the authority or foundations of the State.' Here we have omitted the word sedition. Slander and defamation need not be necessarily connected with a violation of decency or morality nor do they undermine the authority of the State: the words 'any matter' indicate an independent category. One category is libel, slander and defamation. The other category is any matter which offends against the State. The word other therefore would be inappropriate., Shri H. V. Kamath: In the draft article the antecedents of the words 'other' matter were libel, slander, defamation and sedition, all of them., Shri K. M. Munshi: I cannot agree with my honourable friend., Mister Vice‑President: Do you press amendment 449?, Mister Naziruddin Ahmad: Yes., Mister Vice‑President: It will be put to vote. We next come to 450, 451, 452, 453, 465 and 478 all are of similar import and should be considered together. Amendment 450 is allowed., Sardar Hukum Singh (East Punjab: Sikh): Sir, I beg to move: That clause (2), (3), (4), (5) and (6) of article 13 be deleted. Sir, in article 13 (1), sub‑clauses (a), (b) and (c), they give constitutional protection to the individual against the coercive power of the State, if they stood by themselves. But sub‑clauses (2) to (6) of article 13 would appear to take away the very soul out of these protective clauses.
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These lay down that nothing in sub-clauses (a), (b), (c) of article 13 shall affect the operation of any of the existing laws, that is, the various laws that abrogate the rights envisaged in sub-clause (1) which were enacted for the suppression of human liberties, for instance, the Criminal Law Amendment Act, the Press Act, and other various security Acts., The main purpose of declaring the rights as fundamental is to safeguard the freedom of the citizen against any interference by the ordinary legislature and the executive of the day., The rights detailed in article 13(1) are such that they cannot be alienated by any individual, even voluntarily. The Government of the day is particularly precluded from infringing them, except under very special circumstances. But here the freedom of assembling, freedom of the press and other freedoms have been made so precarious and entirely left at the mercy of the legislature that the whole beauty and the charm has been taken away., It is not only the existing laws that have been subjected to this clause, but the State has been further armed with extraordinary powers to make any law relating to libel, slander etc. It may be said that every State should have the power and jurisdiction to make laws with regard to such matters as sedition, slander and libel. In other countries like the United States of America it is for the Supreme Court of India to judge the matter, keeping in view all the circumstances and the environments, and to say whether individual liberty has been sufficiently safeguarded or whether the legislature has transgressed into the freedom of the citizen., The balance is kept in the hands of the judiciary which in the case of all civilized countries has always weighed honestly and consequently protected the citizen from unfair encroachment by legislatures. A curious method is being adopted under our Constitution by adding these sub-clauses (2) to (6). The Honourable Mover defended these sub-clauses by remarking that he could quote at least one precedent for each of these restrictions., The right to freedom of speech is given in article 13(1)(a), but it has been restricted by allowing the legislature to enact any measure under 13(2), relating to matters which undermine the authority or foundation of the State; the right to assembly seems guaranteed under 13(1)(b), but it has been made subject to the qualification that legislation may be adopted in the interest of public order under 13(3). Further under 13(4) to 13(6), any legislation restricting these liberties can be enacted \in the interest of the general public\., Now who is to judge whether any measure adopted or legislation enacted is \in the interest of the general public\ or \in the interest of public order\, or whether it relates to \any matter which undermines the authority or foundation of the State\? The sphere of the Supreme Court of India will be very limited. The only question before it would be whether the legislation concerned is \in the interest of the public order\. Only the bonafides of the legislature will be the main point for decision by the Court and when once it is found by the Court that the Government honestly believed that the legislation was needed \in the interest of the public order\, there would be nothing left for its interference., The proviso in article 13(3) has been worded as to remove from the Supreme Court of India its competence to consider and determine whether in fact there were circumstances justifying such legislation. The actual provisions and the extent of the restrictions imposed would be out of the scope of judicial determination., For further illustration we may take the law of sedition enacted under 13(2). All that the Supreme Court of India shall have to adjudicate upon would be whether the law enacted relates to \sedition\ and if it does, the judiciary would be bound to find that it is valid. It would not be for the Judge to probe into the matter whether the actual provisions are oppressive and unjust. If the restriction is allowed to remain as it is contemplated in 13(2), then the citizens will have no chance of getting any law relating to sedition declared invalid, however oppressive it might be in restricting and negating the freedom promised in 13(1)(a)., The \court\ would be bound to limit its enquiry within this field that the Parliament is permitted under the Constitution to make any laws pertaining to sedition and so it has done that. The constitution is not infringed anywhere, and rather, the draft is declaring valid in advance any law that might be enacted by the Parliament only if it related to sedition. Similar is the case of other freedoms posed in article 13(1) but eclipsed and negated in clauses (2) to (6)., It may be argued that under a national government, the legislature, representative of the people and elected on adult franchise, can and should be trusted for the safe custody of citizens' rights. As has been aptly remarked, \If the danger of executive aggression has disappeared, that from legislative interference has greatly increased, and it is largely against this danger that the modern declarations of fundamental rights are directed, as formerly they were directed against the tyranny of autocratic kings.\, The very object of a Bill of Rights is to place these rights out of the influence of the ordinary legislature, and if, as under clauses (2) to (6) of article 13, we leave it to this very body, which in a democracy is nothing beyond one political party, to finally judge when these rights, so sacred on paper and glorified as Fundamentals, are to be extinguished, we are certainly making these freedoms illusory., Sir, I commend this amendment to the House., Mister Vice-President: The next amendment on the list is the alternative amendment No. 451, in the name of Mister Mahboob Ali Baig. Mister Mahboob Ali Baig Sahib Bahadur: Sir, I move: \That the following words be inserted at the beginning of clauses (2), (3), (4), (5) and (6) of article 13: \\\Without prejudice and subject to the provisions of article 8.\\\\, My purpose in moving this amendment is twofold. Firstly, I want to know the mind of Doctor Ambedkar and the Drafting Committee how article 8 stands in relation to these provisos. It may be asked whether these clauses (2) to (6) are governed by article 8 or not. If these clauses are governed by article 8, may I refer to article 8 itself. It says: \All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part.\ The words \inconsistent with the provisions of this part\ do not affect the existing laws relating to libel, the existing laws relating to restrictions on the exercise of the rights with regard to association or assembly. That means that the existing laws mentioned in clauses (2) to (6) are not all rendered void under Article 8., The intention is clear from the footnote that is appended to article 15, where the reason for the inclusion of the word 'personal' is given. There it is said: \The Committee is of opinion that the word liberty should be qualified by the insertion of the word personal before it, for otherwise it might be construed very widely so as to include even the freedom already dealt with in article 13.\ Thus it is very clear that if the existing law relates to libel, if it relates to meetings or associations, or freedom of speech or expression, then that existing law stands in spite of the fact that article 8 says that any law in force which is inconsistent with the fundamental rights is void., In the past the existing laws, for instance, the Criminal Law Amendment Acts, the Press Acts or the Security Acts laid down restrictions which are inconsistent with the liberties mentioned in clause (1). They shall be in operation and they are not rendered void. That seems to be the meaning that can naturally be attached to this., The second point which I wish to submit is this. By the Constitution certain powers are given to the legislature or the executive. Whether a court can question the validity or otherwise of such action, order or law is another question. My opinion is that where there is a provision in the Constitution itself giving power to the legislature or in this case the State covering the legislature, executive, local bodies and such other institutions, the jurisdiction of the court is ousted, for the court would say that in the constitution itself power is granted to the legislature to deprive, restrict or limit the rights of the citizen and so they cannot go into the validity or otherwise of the law or order, unless, as it is said, there is mala fides., It is for the authorities to judge whether certain circumstances have arisen for which an order or law can be passed. Anyhow I pose this question to the Chairman of the Drafting Committee whether in these circumstances, viz., where there is in existence a provision in the constitution itself empowering the legislature or the executive to pass an order or law abridging the rights mentioned in clause (1), the court can go into the merits or demerits of the order or law and declare a certain law invalid or a certain Act as not justified., In my view the court's jurisdiction is ousted by clearly mentioning in the constitution itself that the State shall have the power to make laws relating to libel, association or assembly in the interest of public order, restrictions on the exercise of..., The Honourable Doctor B. R. Ambedkar (Bombay: General): Sir, if I might interrupt my honourable friend, I have understood his point and I appreciate it and I undertake to reply and satisfy him as to what it means. It is therefore unnecessary for him to dilate further on the point., Mister Mahboob Ali Baig Sahib Bahadur: The third point which I would submit is this. The new set up would be what is called parliamentary democracy or rule by a certain political party, by the party executive or party government and we can well imagine what would be the measure of fundamental rights that the people would enjoy under parliamentary democracy or rule by a party. In these circumstances is it not wise or necessary in the interest of the general public that the future legislatures ruled by a party or the executive ruled by a party are not given powers by this very constitution itself? For as has been said 'power corrupteth' and if absolute power is placed in the hands of party government by virtue of the terms of this constitution itself, such legislature or executive will become absolutely corrupt., Therefore, I move that if at all these provisos are necessary, they must be subject to the proviso that no law can be passed, no law would be applicable which is inconsistent with the freedoms mentioned in sub-clause (1). Sir, I move., Mister Vice-President: The next group consists of amendments Nos. 454, 455, 469, 475, 481, and the first part of 485. They are of similar import and I allow amendment No. 454 to be moved. There are certain amendments to the amendment also., Mister Pandit Thakur Dass Bhargava: Sir, I move: \That in clauses (2), (3), (4), (5) and (6) of article 13 the words \\\affect the operation of any existing law, or\\\ be deleted.\ To this clause an amendment has been given by the Honourable Doctor Ambedkar., Mister Vice-President: May I suggest that when you move amendment No. 454 you move it along with your new amendment? Mister Pandit Thakur Dass Bhargava: I have moved No. 454, to which an amendment, stands in the name of the Honourable Doctor Ambedkar. To this latter I have given an amendment which is No. 3 in today's list. I have also given two other amendments to amendment No. 454. So I shall, with your permission, move them in one bloc., Sir, I move: \That with reference to amendment No. 49 of list 1 of the Amendment to Amendments-(i) in clause (2) of article 13 for the word \\\any\\\ where it occurs for the second time the word \\\reasonable\\\ be substituted and the word \\\sedition\\\ in the said clause be omitted. (ii) that in clauses (3), (4), (5) and (6) of article 13 before the word \\\restrictions\\\ the word \\\reasonable\\\ be inserted.\ The net result of these amendments is the following: I want that the words 'affect the operation of any existing law or' be deleted and also that before the word \restrictions\ in clauses (3), (4), (5) and (6) the word \reasonable\ be placed. I also want that in clause (2) for the word 'any' where it occurs for the second time, the word 'reasonable' be substituted., If my suggestion is accepted by the House then clause (3) would read: \Nothing in sub-clause (b) of the said clause shall prevent the State from making anything, imposing in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub-clause.\ As regards the effect of amendment No. 454, if the following words are taken away – \affect the operation of any existing law, or\ – the result will be that not all the present laws which are in force today will be taken away, but only such laws or portions of such laws as are inconsistent with the fundamental rights according to article 13, will be taken away, and article 8 will be in force., The net effect is that so far as article 8 is concerned, it really keeps alive all the laws which are in force today, except such portions of them as are inconsistent with the fundamental rights conferred by Part III. The words \affect the operation of any existing law, or\ would make no difference. If you examine the amendment to be moved by Doctor Ambedkar, the result is the same because in his amendment the words \in so far as it imposes\ appear. Thus article 8 governs article 13 according to my amendment as well as his. The amendment of Doctor Ambedkar is unnecessary if the House accepts my amendment No. 454., Mister Vice-President: It seems to me that if Doctor Ambedkar moves his amendment, then your amendment will not be necessary at all. Mister Pandit Thakur Dass Bhargava: My amendment will still be necessary as it deals with other matters also., Mister Vice-President: I do not wish to discuss the matter with you. Mister Pandit Thakur Dass Bhargava: There are several clauses in this Constitution in which an attempt has been made to keep the present laws alive as much as possible. Article 8 is the first attempt. According to article 8 only to the extent of inconsistency such laws will become inoperative. Therefore, any further attempt was unnecessary. In article 27 an attempt has again been made to keep alive certain of the laws that come within the purview of article 27 in the proviso. Then again not being content with this, another section is there in the Constitution, namely article 307, which reads: \Subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.\ The laws in force are defined in Explanation No. 1 and there is clause (2) which deals with certain aspects of the question. Even if these sections were not there, even then the general principle is that the law would continue in force unless repealed by any enactment or declared illegal by any Court., Therefore, so far as the continuance of the present law is concerned, the words \affect the operation of any existing law, or\ are surplus, unnecessary and futile. But I would not have submitted this amendment before the House if these words were only surplus. They have another tendency and that has been emphasized by the previous speaker. There are many amendments in the list of amendments to the same effect. I have received representations from various bodies and persons who have said in their telegrams and letters that these words should be removed, because the apprehension is that as article 8 is part of the Constitution, so is article 13 part of the Constitution. In sequence article 13 comes later and numerically it is of greater import. If article 8 is good law, so is article 13. As a matter of fact article 13 is sufficient by itself, and all the present laws, it may and can be argued, must be continued in spite of article 8. This is the general apprehension in the public mind and it is therefore that Doctor Ambedkar has also been forced to table an amendment No. 49 to my amendment No. 454., In my opinion the law must be simple and not vague and ununderstandable. Therefore these mischievous and misleading words should be taken away. As they have further the effect of misleading the public I hold that these words, unless taken away, shall not allay public fear., When I read these different sections from 9 to 13 and up to 26, and when I read of these Fundamental Rights, to be frank I missed the most fundamental right which any national in any country must have viz., the right to vote., Mister Vice-President: That is not the subject matter of the present discussion. The honourable Member should confine his remarks to his amendment., Mister Pandit Thakur Dass Bhargava: In considering article 15 also the House will come to the conclusion that the most important of the Fundamental Right of personal liberty and life has not been made justiciable nor mentioned in article 13. If the House has in its mind the present position in the country, it will come to the conclusion that the present state of things is anything but satisfactory. Freedom of speech and expression have been restricted by sub-clause (2). Fortunately the honourable Member Mister Munshi has spoken before you about deletion of the word sedition. If these words \affect the operation of existing laws\ are not removed the effect would be that sedition would continue to mean what it has been meaning in spite of the contrary ruling of the Privy Council given in 1945. If the present laws are allowed to operate without being controlled or governed by article 8 the position will be irretrievably intolerable., The Honourable Doctor B. R. Ambedkar: Is it open to my honourable Friend to speak generally on the clauses? Mister Vice-President: That is what I am trying to draw his attention to. The Honourable Doctor B. R. Ambedkar: This is an abuse of the procedure of the House. I cannot help saying that. When a member speaks on an amendment, he must confine himself to that amendment. He cannot avail himself of this opportunity of rambling over the entire field., Mister Pandit Thakur Dass Bhargava: I am speaking on the amendment; but the manner in which Doctor Ambedkar speaks and expresses himself is extremely objectionable. Why should he get up and speak in a threatening mood or domineering tone? Mister Vice-President: Everybody seems to have lost his temper except the Chair. (Laughter). I had given a warning to Mister Bhargava and, just now, was about to repeat it when Doctor Ambedkar stood up. I am perfectly certain that he was carried away by his feeling. I do not see any reason why there should be so much feeling aroused. He has been under a strain for days together. I can well understand his position and I hope that the House will allow the matter to rest there. Now, I hope Mister Bhargava realises the position., Mister Pandit Thakur Dass Bhargava: I will speak only on the amendment. But when a Member speaks on an amendment, it is not for other members to decide what is relevant and what is not. Sir, I repeat that unless and until these offending words are removed and if the present law is allowed to continue without the validity of the present laws being tested in any court, the situation in the country will be most unsatisfactory. I am adverting to the present law in order to point out that it is objectionable and if it continues to have the force of law, there will be no use in granting Fundamental Rights. Therefore I am entitled to speak of the Fundamental Rights., Sir, if I do not refer to the situation in the country and to the fact that this law does not allow the present state of tension in the country to be moved, what is the use of the Fundamental Rights? I ask. Mister Vice-President: Kindly remember one thing which is that you may refer to it in a general manner and not make that the principal point of your speech on this occasion. You may refer to all that in such a way as to adopt a via media where your purpose will be served without taking up more time than is actually necessary., Mister Pandit Thakur Dass Bhargava: I am alive to the fact that it is a sin to take up the time of the House unnecessarily. I have been exercising as much restraint as possible. I thank you for the advice given by you. I will not refer to the present situation also if you do not like it. But a few days ago the Honourable Sardar Patel, in a Convocation Address delivered by him, told the whole country that the labourer in the field and the ordinary man in the street has not felt the glow of India's freedom. Nobody feels that glow today, though India is free. Why? If the Fundamental Rights are there and if they are enjoyed by the people, why is there not this glow of freedom? The reason is that these offending words seem to nullify what article 8 seems to grant in respect of the present laws and people do not take us seriously. That is the cause of the general apathy of the people., The third point which I would submit is this. The new set up would be what is called parliamentary democracy or rule by a certain political party, by the party executive or party government and we can well imagine what would be the measure of fundamental rights that the people would enjoy under parliamentary democracy or rule by a party. In these circumstances is it not wise or necessary in the interest of the general public that the future legislatures ruled by a party or the executive ruled by a party are not given powers by this very constitution itself? For as has been said 'power corrupteth' and if absolute power is placed in the hands of party government by virtue of the terms of this constitution itself, such legislature or executive will become absolutely corrupt., Therefore, I move that if at all these provisos are necessary, they must be subject to the proviso that no law can be passed, no law would be applicable which is inconsistent with the freedoms mentioned in sub-clause (1). Sir, I move., The question has been asked, if the Legislature enacts a particular Act, is that the final word? If you consider clauses (3) to (6) you will come to the conclusion that, as soon as you find that in the Statement of Objects and Reasons an enactment says that its object is to serve the interests of the public or to protect public order, then the courts would be helpless to come to the rescue of the nationals of this country in respect of the restrictions. Similarly, if in the operative part of any of the sections of any law it is so stated in the Act, I beg to ask what court will be able to say that, as matter of fact the legislature was not authorised to enact a particular law. My submission is that the Supreme Court of India should ultimately be the arbiter and should have the final say in regard to the destinies of our nationals., If you put the word 'reasonable' here, the question will be solved and all the doubts will be resolved. Sir, one speaker was asking where the soul in the lifeless article 13 was? I am putting the soul there. If you put the word 'reasonable' there, the court will have to see whether a particular Act is in the interests of the public and secondly whether the restrictions imposed by the legislatures are reasonable, proper and necessary in the circumstances of the case. The courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say. Therefore my submission is that we must put in these words 'reasonable' or 'proper' or 'necessary' or whatever good word the House likes. I understand that Doctor Ambedkar is agreeable to the word 'reasonable'. I have therefore put in the word 'reasonable' to become reasonable.
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Otherwise if words like \necessary\ or \proper\ had been accepted, I do not think they would have taken away from but would have materially added to the liberties of the country. Therefore I respectfully request that the amendment I have tabled maybe accepted so that article 13 may be made justiciable. Otherwise article 13 is a nullity. It is not fully justiciable now and the courts will not be able to say whether the restrictions are necessary or reasonable. If any cases are referred to the courts, they will have to decide whether restriction is in the interests of the public or not but that must already have been decided by the words of the enactment. Therefore the courts will not be able to say whether a fundamental right has been infringed or not. Therefore my submission is that, if you put in the word \reasonable\, you will be giving the courts the final authority to say whether the restrictions put are reasonable or reasonably necessary or not. With the words, I commend this amendment to the House., The Honourable Doctor B. R. Ambedkar: Sir, I move: \that with reference to amendment No. 454\. Shri H. V. Kamath: On a point of order, Sir, has amendment No. 454 been moved? Mister Vice-President: Please continue. The Honourable Doctor B. R. Ambedkar: \with reference to amendment No. 454 of the List of amendments—(i) in clauses (3), (4), (5) and (6) of article 13, after the words 'any existing law' the words 'in so far as it imposes' be inserted, and (ii) in clause (6) of article 13, after the words 'in particular' the words 'nothing in the said clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law' be inserted.\ Syed Abdur Rouf (Assam: Muslim): On a point of order, Sir, I think that Doctor Ambedkar's amendment cannot be an amendment to amendment No. 454. Amendment No. 454 seeks to delete clauses (2), (3), (4), (5) and (6), whereas Doctor Ambedkar's amendment seeks to insert some words in those clauses and cannot therefore be moved as an amendment to an amendment. Mister Vice-President: It seems to me that what Doctor Ambedkar really seeks to do is to retain the original clauses with certain qualifications. Therefore I rule that he is in order. Shri H. V. Kamath: This will have the effect of negativing the original amendment. Mister Vice-President: Kindly take your seat., The Honourable Doctor B. R. Ambedkar: From the speeches which have been made on article 13 and article 8 and the words \existing law\ which occur in some of the provisos to article 13, it seems to me that there is a good deal of misunderstanding about what is exactly intended to be done with regard to existing law. Now the fundamental article is article 8 which specifically, without any kind of reservation, says that any existing law which is inconsistent with the Fundamental Rights as enacted in this part of the Constitution is void. That is a fundamental proposition and I have no doubt that any trained lawyer, if he was asked to interpret the words \existing law\ occurring in the sub‑clauses to article 13, would read \existing law\ in so far as it is not inconsistent with the fundamental rights. There is no doubt that is the way in which the phrase \existing law\ in the sub‑clauses would be interpreted. It is unnecessary to repeat the proposition stated in article 8 every time the phrase \existing law\ occurs, because it is a rule of interpretation that for interpreting any law, all relevant sections shall be taken into account and read in such a way that one section is reconciled with another. Therefore the Drafting Committee felt that they have laid down in article 8 the full and complete proposition that any existing law, in so far as it is inconsistent with the Fundamental Rights, will stand abrogated. The Drafting Committee did not feel it necessary to incorporate some such qualification in using the phrase \existing law\ in the various clauses where these words occur. As I see, many people have not been able to read the clause in that way. In reading \existing law\, they seem to forget what has already been stated in article 8. In order to remove the misunderstanding that is likely to be caused in a layman's mind, I have brought forward this amendment to sub‑clauses (3), (4), (5) and (6). I will read for illustration sub‑clause (3) with my amendment. \Nothing in sub‑clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law, imposing in the interests of public order.\ I am accepting Mister Bhargava's amendment and so I will add the word \reasonable\ also. \imposing in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub‑clause.\, Now, the words \in so far as it imposes\ to my mind make the idea complete and free from any doubt that the existing law is saved only in so far as it imposes reasonable restrictions. I think with that amendment there ought to be no difficulty in understanding that the existing law is saved only to a limited extent, it is saved only if it is not in conflict with the Fundamental Rights. Sub‑clause (6) has been differently worded, because the word there is different from what occurs in sub‑clauses (3), (4) and (5). Honourable Members will be able to read for themselves in order to make out what it exactly means. Now, my friend, Pandit Thakur Dass Bhargava entered into a great tirade against the Drafting Committee, accusing them of having gone out of their way to preserve existing laws. I do not know what he wants the Drafting Committee to do. Does he want us to say straightaway that all existing laws shall stand abrogated on the day on which the Constitution comes into existence?, The Honourable Doctor B. R. Ambedkar: What we have said is that the existing law shall stand abrogated in so far as they are inconsistent with the provisions of this Constitution. Surely the administration of this country is dependent upon the continued existence of the laws which are in force today. It would bring down the whole administration to pieces if the existing laws were completely and wholly abrogated. Now I take article 307. He said that we have made provisions that the existing laws should be continued unless amended. Now, I should have thought that a man who understands law ought to be able to realize this fact that after the Constitution comes into existence, the exclusive power of making law in this country belongs to Parliament or to the several local legislatures in their respective spheres. Obviously, if you enunciate the proposition that hereafter no law shall be in operation or shall have any force or sanction, unless it has been enacted by Parliament, what would be the position? The position would be that all the laws which have been made by the earlier legislature, by the Central Legislative Assembly or the Provincial Legislative Assembly would absolutely fall to pieces, because they would cease to have any sanction, not having been made by the Parliament or by the local legislatures, which under this Constitution are the only bodies entitled to make law. It is, therefore, necessary that a provision should exist in the Constitution that any laws which have already been made shall not stand abrogated for the mere reason that they have not been made by Parliament. That is the reason why article 307 has been introduced into this Constitution., I, therefore, submit, Sir, that my amendment which particularizes the portion of the existing law which shall continue in operation so far as the Fundamental Rights are concerned, meets the difficulty which several honourable Members have felt by reason of the fact that they find it difficult to read article 13 in conjunction with article 8. I therefore think that this amendment of mine clarifies the position and hope the House will not find it difficult to accept it. (Amendment No. 50 to amendment No. 454 was not moved.) (Amendments Nos. 455, 469, 475 and 481 were not moved.) Mister Vice-President: Then we shall take up amendment No. 485, first part. The House can well realize that I am going through a painful process in order to shorten the time spent on putting the different amendments to the vote., Syed Abdur Rouf: I want the first part of the amendment to be put to the vote. Mister Vice-President: Then we come to another group, 456, 472, 484 and 495. (Amendments Nos. 456, 472, 484 and 495 were not moved.) Mister Vice-President: The next group consists of amendments Nos. 457, 466, 473 and (Amendments Nos. 457, 466, 473 and 494 were not moved.) Mister Vice-President: Then amendment No. 458 standing in the name of Mister Mohd. Tahir and Saiyid Jafar Imam. Shri M. Ananthasayanam Ayyangar: That has already been covered by Mister Mahboob Ali Baig's amendment. Mister Vice-President: Still, it would depend upon the mover. Mister Mohd. Tahir (Bihar: Muslim): Sir, I beg to move: \That in clause (2) of article 13, after the word 'sedition' the words 'communal passion' be inserted.\ Now, Sir, we find that under this clause we are giving powers to the State to make laws as against certain offences such as libel, slander, defamation, sedition and similar offences against the State. Now I want that these words \communal passion\ be also added after the word \sedition\ which means, agitating or exciting the minds of one community as against the other. These words, Sir, libel, slander, defamation, sedition, are the common words found in the Indian Penal Code and fortunately or unfortunately, we find that this word does not find a place in the Indian Penal Code. The reason is very simple, because the Indian Penal Code and the old laws were framed by a Government which was foreign to us. Now, this is the time when we must realize our merits and demerits. We know that the agitation and the excitement of communities against communities have done a great loss and disservice to our country as a whole. Therefore, Sir, I think that the addition of this word is necessary. To tell the truth, I would say that if in our country which is now an independent country, we are really sincere to ourselves, this word also must find a place in the Constitution. I would request and appeal to Doctor Ambedkar and the House as a whole to give sound reasoning and due consideration for the addition of this word. At the end, Sir, I may submit that an amendment has been moved by Mister Munshi and I do not know whether it is going to be accepted or not. In case that amendment is going to be accepted by the House, I would appeal that this word may be given a place in that amendment or wherever it is found suitable. With these words, Sir, I move., Mister Vice-President: We come next to amendment No. 459. It is in the name of Mister Thomas. It is verbal and therefore disallowed. Next we take up amendments Nos. 460, 461 and the second part of 462. I would allow amendment No. 461 to be moved because I regard it as most comprehensive of the three. That is covered by Mister Munshi's amendment. Is amendment No. 460 moved? Pandit Thakur Dass Bhargava: I do not want to move it. Mister Vice-President: Amendment No. 462; Mister Kamath. Shri H. V. Kamath: It is covered by amendment No. 461. Mister Vice-President: Amendment No. 462, first part. I was dealing with the second part just now. The first part is more or less a verbal amendment and is disallowed. Then, amendments Nos. 463 and 464 coming from two different quarters are of similar import. Amendment No. 464, standing in the name of Shri Vishwambhar Dayal Tripathi may be moved. (Amendment No. 464 was not moved.) Mister Vice-President: What about amendment No. 463, in the name of Giani Gurmukh Singh Musafir? Giani Gurmukh Singh Musafir: Not moving, Sir. Mister Vice-President: Then, we take up amendments Nos. 467 and 474. Amendment No. 467 may be moved. It stands in the name of Mister Syamanandan Sahaya. Shri Syamanandan Sahaya (Bihar: General): Sir, I beg to move: \That in clause (3) of article 13, the word 'restrictions' the words 'for a defined period' be added.\, Sir, in moving this amendment before the House, what was uppermost in my mind was to see whether actually even in the matter of the three freedoms so much spoken of, namely, the freedom of speech, freedom of association and freedom of movement, we had really gone to the extent that everyone desired we should. I must admit that I did not feel happy over the phraseology of the clauses so far as this general desire in the mind of everybody, not only in this House, but outside, obtained. I will, Sir, refer to the wording of sub‑clause (b) of clause (1) of article 13. This sub‑clause lays down that all citizens shall have the right to assemble peaceably and without arms. This is the Fundamental Right which we are granting to the people under the Constitution. Let us see how this fits in with clause (3) of article 13 which is the restricting clause. Clause (3) lays down that nothing in sub‑clause (b) of the said clause (1) shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order restrictions on the exercise of the right conferred by the said sub‑clause. Sir, the only right which we are giving by sub‑clause (b) is the right to assemble peaceably and without arms. This right to assemble is not a general right of assembly under all conditions. To assemble peaceably is the first condition precedent and there is also a second condition. That condition is that the assembly should be without arms. On the top of these conditions we are laying down in sub‑clause (3) that there shall be a further restricting power in the hands of the State. I would much rather that clauses (3) and (4) did not form part of our Constitution. But, if the Drafting Committee and the other people who have considered the matter carefully think that it is necessary to lay down restrictions even in the matter of assembling peaceably and without arms, I might respectfully submit that it would be necessary to further restrict this restricting power by saying that any law restricting this power must be for a specified period only. I do not think the House will agree that any State should place on the statute book a permanent law restricting this Fundamental Right of peaceful assembly. The most that the Constitution could accommodate a particular Government at a particular time under a particular circumstance was to give it the power to restrict this right under these conditions but for a specified and defined period only and that I submit, Sir, is the purpose of my amendment. The best interpretation that one could put on this clause is that the Drafting Committee has erred too much on the cautious side in this matter and they have probably kept the Government too much and the citizens too little, in view. I will submit that both in sub‑clauses (3) and (4) the words 'for a defined period' should be added in order that if a State at any time has to pass legislation to restrict these rights, they may do so only for a period. It does not mean that once a State has passed such legislation it is debarred from following it up by a second legislation in time if necessary but we must lay down in the Constitution that we shall permit no such restrictive law to be a permanent feature of the law of the land. A State should not be empowered to pass legislation restricting permanently peaceful assembly and assembly without arms. I think such a general power in the armoury of any State, however popular or democratic, would not be desirable. In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country. Sir, I move the amendment and commend it to the acceptance of the House. (Amendment No. 470 was not moved.), Mister Vice-President: 471 is disallowed as verbal. Nos. 476 and 477 are of similar import. I allow 476. The Honourable Doctor B. R. Ambedkar: Sir I move—\That in clause (4) of article 13, for the words 'the general public' the words 'public order or morality' be substituted.\ These words are inappropriate in that clause. Mister Vice-President: 477 is identical, 479, 480 and 486 are of similar import (Amendments Nos. 479, 480, and 486 were not moved.) Mister Vice-President: 482 and 483. (Amendment No. 482 was not moved.) Mister Vice-President: 483 Sardar Hukam Singh. Sardar Hukam Singh: Sir, I beg to move: \That in clause (5) of article 13, after the words 'existing law' the words 'which is not repugnant to the spirit of the provisions of article 8' be inserted.\, The Honourable Doctor B. R. Ambedkar has rightly appreciated our fears and we feel that is the object of most of the amendments that have been moved. Certainly there are fears in our minds that if these articles stand independently, articles 8 and 13, then there is a danger of different constructions being put on them. Doctor Ambedkar has emphasized that if relevant articles of the Constitution are in question, all those articles that relate to one subject shall be taken into consideration when some construction is going to be put by any Court and then article 8 would govern because it says that \All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency be void\. That we have adopted, and this is what we feel that it should be made clear that certainly those parts which are inconsistent would be void to that extent. If that is the object as Doctor Ambedkar has explained, then why not make it clear in this section as well. Where is the harm? I do not see that we would lose anything or that it would change the beauty of the phraseology even if we make it clear that these provisions are subject to article 8. This is to be admitted that there are certain laws in force just at present that restrict the liberty of the people. For instance I can quote the Land Alienation Act in Punjab. That allows only certain castes to purchase land of their own caste and precludes other castes to purchase that land. If this distinction were based on some economic ground, if it were to be enacted that all small tillers' rights would be safeguarded and their small lands would not be alienable, we could understand that alright and such a provision would be welcome. But when the discrimination is there, we too feel that such a law should stand abrogated so far as it is inconsistent with the provision in clause (5) or article 13. Because that gives freedom to acquire, hold and dispose of property and if that law remains Land Alienation Act, as it is and definition is not changed of the \agriculturist\, there would be a conflict and there might be certain constructions by Court which would be unfair. So if that is the object as Doctor Ambedkar has explained that article 8 would govern, then we should make it clear and that is why I have suggested that after the words 'existing law' the words 'which is not repugnant to the spirit of the provisions of article 8' be inserted. That is my object and it should be made clear beyond any doubt., Mister Vice-President: Then we come to amendment No. 485, second part, standing in the name of Syed Abdur Rouf, and the first part of amendment No. 488 standing in the joint names of Doctor Pattabhi Sitaramayya and others. The latter seems to be the more comprehensive of the two and may be moved. (Amendment No. 488 was not moved.) Mister Vice-President: Then in that case, the second part of amendment No. 485, standing in the name of Syed Abdur Rouf may be moved. Syed Abdur Rouf: Sir, I beg to move: \That in clause (5) of article 13, for the word 'State', the word 'Parliament' be substituted.\ Sir, in sub‑clauses (d), (e) and (f), we have got the most valuable of our Fundamental Rights. But clause (5) seems to take away most of our rights, because States have been given power to restrict, to abridge and even to take away the rights if and when they like. We remember the word 'State' has been defined as to include even local authorities etc. within the territory of India or under the control of the Government of India. Even village panchayats, small town committees, municipalities, local boards all these, to a certain extent become States, and it has been left to these States to deal with these valuable Fundamental rights. Sir, I will bring one instance before you. Suppose, due to political views, a particular village or panchayat area is divided between the majority and the minority. Now, if the majority of the Panchayat by a resolution asks the minority not to move freely in the area or to reside there, or to dispose of their property, which law will prevent the majority from doing so, and which law is there to safeguard the interests of the minority? As these are most valuable rights, the State should not be trusted with making laws regarding these rights. In my opinion, Sir, it is only the Parliament which can, to the satisfaction of the people, deal with these questions. As it is very dangerous to leave this power in the hands of the small States, which will comprise even village panchayats, we must be very careful and, therefore, I suggest that in place of 'State', the word 'Parliament' should be substituted., Mister Vice-President: Then amendments Nos. 487, 489 and 490 are of similar import. No. 487 may be moved. (Amendment No. 487 was not moved.) Mister Vice-President: Amendment No. 489 standing in the joint names of Mister Mohd. Tahir and Saiyid Jafar Imam. Mister Mohd. Tahir: Sir, I beg to move: \That in clause (5) of article 13, the word 'either' and the words 'or for the protection of the interests of any aboriginal tribe' be omitted.\ Sir, I am not going to make any speech in this connection, but want only to submit that the removal of these words would make the clause of a general character, which certainly includes the safeguards of the interests of the aboriginal tribes as well. I understand the Drafting Committee was also of this opinion, but I do not know why this clause was worded in this manner. Anyhow, I think it better to delete the words in the manner I have suggested. Mister Vice-President: Amendment No. 490 is the same as the one now moved, and it need not be moved. Amendment No. 488, second part, and No. 491 are of similar import. Amendment No. 491, standing in the name of Doctor Ambedkar may be moved. The Honourable Doctor B. R. Ambedkar: Mister Vice-President, Sir, I move: \That in clause (5) of article 13, for the word 'aboriginal', the word 'scheduled' be substituted.\ When the Drafting Committee was dealing with the question of Fundamental Rights, the Committee appointed for the Tribal Areas had not made its Report, and consequently we had to use the word 'aboriginal' at the time when the Draft was made. Subsequently, we found that the Committee on Tribal Areas had used the phrase \Scheduled Tribes\ and we have used the words \scheduled tribes\ in the schedules which accompany this Constitution. In order to keep the language uniform, it is necessary to substitute the word \Scheduled\ for the word \aboriginal\. Mister Vice-President: There is, I understand, an amendment to this amendment, and that is amendment No. 56 of List I, standing in the name of Shri Phool Singh. (Amendment No. 56 of List I was not moved.) Mister Vice-President: That means this amendment No. 491 stands as it is. Then we come to amendment No. 488. (Amendment No. 488 was not moved.) The Honourable Doctor B. R. Ambedkar: Sir, I move: \That in clause (6) of article 13, for the words 'public order, morality or health', the words 'the general public' be substituted.\ The words 'public order, morality or health' are quite inappropriate in the particular clause., Mister Mohd. Tahir: *[Mister President, my amendment No. 500 is as follows: \That after clause (6) of article 13, the following new clause be added. '(7) The occupation of beggary in any form or shape of person having sound physique and perfect health whether major or minor is totally banned and any such practice shall be punishable in accordance with law.'\ Sir, I have moved this amendment for this reason that, if the House agrees with this amendment surely it will result in solving to a great extent the difficulties of labour which exist in our country. Our industries, which are very vital and in many places have failed due to lack of labour, can flourish to a great extent. Besides, I would like to state that in our country thousands, lakhs and crores of human beings will imbibe the spirit of self‑reliance and self‑respect. We see that in our country many able‑bodied persons who can work and can earn their livelihood are to be found begging on roadsides. If you tell them that they can work, that they can maintain themselves by earning their livelihood and can do good to their country by their labour, they would say in reply \Sir, this is our ancestral profession and we are forced to do it\. I would like to say that there are many countries on this earth, but if you look around, you will find this ugly spot only on the face of our country. Therefore, I want that there should be some such provision in our Constitution as would be beneficial to our country. Obviously, those that are helpless, for instance many of our unfortunate countrymen, who are blind, lame and cannot use their hands and feet, really deserve some consideration. In such cases begging on these and other similar grounds may be justified. But even in this matter, I would submit that the State should be responsible and some such institution or home be founded in some places where they might be brought up, while those that are able‑bodied and healthy should be forced to work. By doing so, our labour problem will be solved to a great extent and crores of human beings, who have taken to begging as a profession, would be prevented from doing so. This will create in them the spirit of self‑respect and self‑reliance. Therefore, I hope that Doctor Ambedkar will accept this amendment of mine and the House will also help me by accepting it. With these words, I submit this amendment for the consideration of the House., The Assembly then adjourned till Half Past Nine of the Clock on Thursday, the 2nd December 1948. [Translation of Hindustani speech.] Thursday, the 2nd December 1948 The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Half Past Nine of the Clock, Mister Vice-President (Doctor H. C. Mookherjee), in the Chair. Article 13—Continued. Mister Vice-President (Doctor H. C. Mookherjee): We shall resume discussion of Article 13.
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I should like to know the views of the House as to the way we should deal with the following amendments we postponed consideration of yesterday: Amendments No. 442, No. 499, the second part of No. 443, No. 468 and No. 501., Shri M. Ananthasayanam Ayyangar (Madras: General) said: In as much as these relate to the free choice of vote and some other matters which are not already prescribed in Article 13, they may be held over and moved as a separate clause later on in the Fundamental Rights. We need not delay the passing of Article 13, whose amendments have already been moved, and the discussion may start., The Vice President asked: Is that the view of the House? The Honourable Members replied: Yes. The Vice President then said: We shall proceed with the general discussion of the article. A large number of Honourable Members desire to speak on this article; therefore, with the permission of the House, I would like to limit the duration of the speeches to ten minutes each ordinarily, extending the time where necessary. I have the permission of the House to fix this time limit., Shri H. V. Kamath (Central Provinces and Berar: General) raised a point of order: Two amendments have been held over. Unless they are moved, how can general discussion on the article as a whole go on? The Vice President asked: What are those amendments, please? Shri Kamath replied: No. 499 and No. 442. The Vice President said: They will form part of a new clause., Sardar Bhopinder Singh Man (East Punjab: Sikh) said: I regard freedom of speech and expression as the very life of civil liberty and consider it fundamental. For the public in general, and for the minorities in particular, I attach great importance to association and to free speech. It is through them that we can make our voice felt by the Government and stop injustice. The country struggled long to obtain these rights, and after a grim battle succeeded in getting them recognised. Now, when the time for their enforcement has come, the Government feels hesitant; what was deemed undesirable then is now being paraded as desirable. Every clause is being hemmed in by many provisos. Applying the existing law despite changed conditions amounts to trifling with freedom of speech and expression. From the very beginning we have stood against the existing laws, but now you are imposing them on us. You want to continue the old order so that there is no opportunity of a trial, of putting up defence and of an appeal. If a meeting is held, then for breaking it up lathis may be used, and people may be put into jail without trial; their organisations may be banned and declared illegal. We do not like this shape of things. If you want to perpetuate all that, then I would say that by imposing these restrictions you are doing a great injustice. There are a few rights to which I attach very great importance. You have included them in the articles relating to directive principles of State policy, and so we cannot go to a Court of law for their enforcement. You are diluting these rights so that nothing solid remains. I want these rights not to be restricted so much, and all peaceful, non‑seditious opposition should get full opportunity, because opposition is a vital part of every democratic Government. Suppression of lawful and peaceful opposition means heading towards fascism., Seth Govind Das (Central Provinces and Berar: General) said: Article 13 is the most important of all the articles concerning Fundamental Rights. The rights granted by these articles are very important. Yesterday Shri Damodar Swarup Seth and Shri K. T. Shah moved their amendments in this House. The purport of the amendments is that the rights given to us with one hand are being taken away by the other hand. This may be true to some extent, but considering the present national and international situation and the fact that we have achieved freedom only recently and our government is in its infancy, it was necessary for the government to retain the powers it has after granting these fundamental rights. We should see what is happening in our neighbouring country Burma and in war‑torn China. In view of these circumstances, the Government should continue to have these powers. I would have preferred that these rights were granted without the restrictions that have been imposed, but the conditions in our country do not permit this. I find that the first sub‑clause refers to freedom of speech and expression. The restriction later imposed contains the word ‘sedition’. An amendment has been moved to delete the word ‘sedition’. It is a matter of great pleasure that it seeks the deletion of that word. I would like to recall to the mind of Honourable Members the first occasion when Section 124A was included in the Indian Penal Code. It was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then many of us have been convicted under this section. I belong to a family renowned in the Central Provinces for its loyalty; my grandfather held the title of Raja and my uncle and father held the title of Diwan Bahadur. I am glad that titles will no longer be granted in this country. In spite of belonging to such a family I was prosecuted under Section 124A for stating during the Satyagraha movement of 1930 that my great‑grandfather had been awarded a gold waist‑band for helping the alien government in 1857 and that he had committed a sin, and that I wanted that sin expiated by the great‑grandson seeking to uproot it. For this I was sentenced to two years’ rigorous imprisonment. Many Members of this House must have been sentenced under this article and undergone long periods of imprisonment. It is a pleasure that we will now have freedom of speech and expression under this sub‑clause and the word ‘sedition’ will disappear. The next matter is sub‑clause (b) which contains the expression ‘to assemble peacefully without arms’. I agree that we should have the right of assembling without arms only. We have accepted the creed of non‑violence and through it we have achieved freedom. Although the present world situation compels us to maintain armies, I hold that the welfare of humanity can be secured by means of non‑violence alone. We should have the right of assembling but without arms. I also draw attention to sub‑clauses (f) and (g): ‘to acquire, hold and dispose of property’ and ‘to practise any profession or to carry on any occupation, trade or business’. Speaking for myself, I believe that humanity cannot achieve its welfare except through non‑violence, and likewise there cannot be stable peace unless private property is abolished. I am not a socialist or a communist, but I think that the desire of big capitalists, traders, zamindars and taluqdars to protect their property does not allow them true happiness. It is not true to say that people lacking wealth alone are unhappy; they are unhappy, but in the present economy the moneyed are more unhappy than the moneyless, and this band of gold is crushing the rich man’s neck. This wealth has been in their possession for long and that is why they are anxious to retain it. If they are forcibly deprived of their wealth, socialism or communism would not be established. The example of Russia bears testimony: individual property was expropriated there by force and the result was that it could not be destroyed but increased. If we change values in this country and the world and create a psychological atmosphere that makes people eager to rid themselves of the burden of property, we would reach the desired goal and there would be the possibility of establishing a true socialist state. History shows that at one time man devoured man; the man who could devour the greatest number was worshipped. Times changed to the epoch of slave‑trade, where respectability was judged by the number of slaves one had. Those conditions changed. Today capitalists are characterised as plunderers and dacoits. While many criticize capitalists, the majority of socialists would, if they obtained this property, forsake socialism. The necessity is a change in outlook. If society propagates these ideas and capitalists are looked down upon as thieves, they would not keep their wealth. Such a change of mind and heart can be brought about only through non‑violence. I hope that in time to come the articles concerning property will not find a place in the Constitution. I heartily support the whole of Article 13 on the Fundamental Rights., Shri Jaipal Singh (Bihar: General) said: This article does not frighten me, although the various fundamental rights have been hedged by many exceptions. Whatever we put into the Constitution, its value will depend on how we work with it. I have two points on which I would like Doctor B. R. Ambedkar to enlighten me. First, regarding Amendment No. 491, he seeks to substitute the word ‘aboriginal’ with the word ‘scheduled’. I am at a disadvantage when anything affecting Adivasis is discussed because the two reports of the Tribal Sub‑Committees have not been fully discussed on the floor of this House, so the House has not obtained a collective viewpoint. The question of the word ‘tribal’ is also unclear; neither sub‑committee went into the work of scheduling. The Drafting Committee has simply put into the Draft Constitution whatever was obtained in the Government of India Act. My second point is whether the advisory councils or the regional councils envisaged in the recommendations of the two sub‑committees will operate outside the so‑called scheduled areas. If they do not, what will happen to the Adivasis, who are in millions, outside those scheduled areas? For example, in West Bengal there shall be no scheduled areas, yet there are 1.6 million Adivasis. There will be no regional council or advisory council there. Who will advise the Governor regarding their welfare? The Tribes inventory in this Draft Constitution is unsatisfactory. The political situation in Bengal, Bihar and Orissa is unsettled, and this affects the Adivasis. The Tribal Sub‑Committee’s recommendations cover only a small portion of the Adivasi population, particularly in the Central Provinces and Orissa. I would like Doctor Ambedkar to state clearly that any provisions or concessions he desires in this Constitution will apply also to those areas not specifically scheduled. Regarding Article 13(1)(b), ‘to assemble peaceably and without arms’, I point out that the Arms Act has been mischievously applied against the Adivasis. Certain political parties argue that because Adivasis carry bows, lathis or axes as part of their daily life, they are preparing for trouble. For instance, the Oraon community, the fourth largest Adivasi block, holds annual festivals where the village head carries a flag and others carry lathis, which is harmless. Yet they have been told not to carry weapons. Many Members from Bihar need armed escorts to return home. In the jungles, even women may carry items that could be designated as arms, but they are not weapons in that sense. When meetings are held, if people come with their usual items, will it be interpreted as assembling unpeaceably and carrying arms for an unlawful purpose? These are the points I want clarified. Additionally, every seven years in Chota Nagpur, women dress as men and hunt with bows, arrows, lathis and belas. The Government might interpret this as a dangerous gathering. I urge the House to do nothing that would upset these simple folk, who have been among the most peaceful citizens. I have no difficulty accepting this article, but I seek clarification from Doctor Ambedkar on these two points., The Vice President said to Mr. Hanumanthaiya Kazi Syed Karimuddin (Central Provinces and Berar: Muslim): I have not caught your eye, Sir. The Vice President replied: Unfortunately, I have only two eyes. They will be turned to your side the next time. An Honourable Member asked: Why do you not have a third eye, Sir? The Vice President responded: Why cannot you come to the front bench? I say it is the fault of the House that they unanimously chose an old man as Vice President; his eyesight is not as good as that of younger men., Shri K. Hanumanthaiya (Mysore) said: This article incorporates some of the most cherished rights of all of us. For the last sixty years the freedom movement involved innumerable speeches and sacrifices to win the fundamental rights incorporated in this article. Many members and some outside observers feel that these fundamental rights have been so much curtailed that their original flavour is lost. Every law, whether a right or a duty, takes shape according to the condition of society then prevailing. We endured suffering imposed by the repressive laws of British imperialism, which naturally made us advocates of unadulterated fundamental rights. However, after emerging from those difficulties, we now face elements within our own society who want to take advantage of those rights to commit violence against men, society and laws. Therefore the Drafting Committee and the Governments at the centre and in the provinces are hard put to safeguard these rights in their pristine purity. No man who believes in violence and wants to upset the State and society by violent methods should be allowed to use these rights. The question arises whether the limiting authority should be the legislature or the courts. Many think that the legislature or the executive should not lay down limitations for the operation of these fundamental rights, and that it must be entrusted to courts which are free from political influences, independent and can take an impartial view. I appreciate the sincerity of that argument, but I fail to see how it can work in practice. Courts can interpret the law as it is, but law must automatically adjust to changing conditions. Courts cannot, by nature, do legislative work; they can only interpret. Therefore, the power of limiting the operation of fundamental rights is given to the legislature, which consists of representatives of the people as laid down in this Constitution. If at a particular time the legislature thinks that these rights ought to be regulated in a certain manner, there is nothing wrong or despotic about it. I am glad that this right of regulating the exercise of fundamental rights is given to the legislature instead of the courts. In Article 13, about seven fundamental rights are incorporated. I feel the Drafting Committee has done well in incorporating the first four freedoms: freedom of speech and expression, freedom to assemble peaceably and form associations, and freedom to move freely throughout the territory of India. The next three clauses—right to reside and settle in any part of the country, right to acquire, hold and dispose of property, and right to practise any profession, occupation, trade or business—do not, in my opinion, constitute fundamental rights. They are matters incidental to legislation that can be passed by Parliament or the legislatures of the Units. These three rights are not treated as fundamental rights in most other countries except perhaps Ireland and Switzerland; in America they are not fundamental rights. I may be pardoned for saying that the men who shaped these constitutional proposals, a majority of them, came from the uppermost strata of society and framed these rights from that perspective. Whether these three rights are fundamental or not should be judged from the point of view of the people of the villages and the Units. I feel these are rather liabilities imposed upon the people of the villages and Units. I wish the Drafting Committee and this Assembly could now delete these three rights and relegate them to the discretion of the legislatures of the Units, but it is too late and we must accept them. This may lead to future conflict, as Units may try to circumvent these rights, resulting in abundant litigation. Yesterday I read Sir Ivory Jennings' opinion that the rights in this Chapter are so complicated and verbose that they will be a fruitful source of income for constitutional lawyers. The enunciation of the Fundamental Rights and the exceptions added by provisos are worded so that unforeseen exigencies will generate litigation on a scale never before seen. Every aggrieved person can go to any Court of Law, and the Supreme Court will be full of cases between individuals, between individuals and the State, between States, and between the Central Government and State Governments. Such litigation will not be helpful to the interest of the country. Litigation ruins both parties. A Kannada proverb says, ‘a successful party in a case is as good as defeated and a defeated party in a case is as good as dead’. Whenever litigation arises in interpreting these clauses, political controversies also arise, especially concerning the last three clauses, which will continuously raise political storms in the shape of litigation., Kazi Syed Karimuddin said: There is no denying that this article is the very life of the Draft Constitution. Without it the Constitution would be a dead letter. The rights contemplated under Article 13 are inalienable, and the question is whether these rights can be delegated to the Governments or whether we are laying down principles that cannot be subject to legislation or the vagaries of legislatures. My submission is that these are Fundamental Rights concerning individuals that cannot be made subject to the vagaries of legislatures. Clauses (2) to (6) of this article rob the people of the only guarantee that will make them secure, and these clauses are very dangerous. Suppose in a State a political party hostile to the Central Government frames laws to the great detriment of political or religious minorities. People would suffer and there would be untold miseries. Particularly the wording ‘subject to operation of existing laws’ is very unjust. In practice there is a state of siege in India today.
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There are Goonda Public Safety Acts in all the provinces in which there is neither appeal nor any warrant necessary for arrest, and searches can be made without justification. In spite of this, the article lays down that the existing laws will be recognized. These unjust laws which do not provide appeals and which do not provide any proper representation will be recognized under Article 13., It is no doubt that we are living in an emergency period, but that does not mean that Article 13 should be inconsistent with emergencies. Another part of the article guarantees the right to assemble peacefully and without arms. The framers of the Constitution could not have laid down greater restrictions, yet the legislatures of the States are empowered to impose further restrictions as embodied in clauses (3) and (4)., The question is whether a particular legislation is in the interest of the people, or whether it should be delegated to the judiciary or to the State legislatures. I submit that we cannot entrust the interpretation of these clauses in the Fundamental Rights to the vagaries of legislatures. In State legislatures the majority is capable of practically oppressing minorities, political or communal. The very purpose of this Fundamental Right is being defeated. The Fundamental Rights are being enacted only with a view to placing restrictions on the legislation. By these clauses (2) to (6) we are enlarging the scope of Article 13 and the powers of the Provincial Legislatures or States, to the detriment of political or religious minorities., If this article as it stands is passed, my submission is that it will take away the rights given in Article 8 of the Constitution. There is no parallel to these restrictions in any Constitution of the world. In the American Constitution all these rights have been entrusted to the judiciary because elected political parties cannot be entrusted with the interpretation of laws. The main principle should have been that whatever is not forbidden should be allowed., Two amendments have been moved, one by Mister Mohamed Ismail and the other by Mister Tahir. Both amendments are very innocent and necessary for the protection of minorities. Mister Ismail's amendment advocates that personal law should be respected and embodied in the Constitution. The members of the Constituent Assembly must realize that a Muslim regards personal law as part of religion, and there is not a single Muslim in the country who wants a change in the mandatory provision of religious rights and personal laws. If anyone wants a change in the mandatory principle or religion as a matter of personal law, then he cannot be a Muslim., Therefore, if we really want to protect minorities because this is a secular State, it does not mean that people should have no religion. If minority Muslims or any other minority wish to abide by personal law, those laws have to be protected. The amendment of Mister Tahir is very important; after 15 August, communal passion has eaten away everything good in society. It was a canker destroying society and would have continued but for the Central Government. Communal passion should be made an offence. This amendment is vital and should be accepted by Doctor B. R. Ambedkar., Doctor B. R. Ambedkar, in his book 'States and Minorities', said: 'No law shall be made abridging the freedom of the press, of association and of assembly except for consideration of public order and morality.' In 1947 he agreed that only the first part of Article 13 should be enacted, but within a year he placed many restrictions that take away what was given under Article 8., The Vice President remarked that it is a mistake to hold Doctor Ambedkar responsible for everything connected with this Draft Constitution; there was a whole Drafting Committee. Kazi Syed Karimuddin submitted that if the opinion of minorities in this House is taken, a Sikh representative has spoken, and I am speaking now, the minorities will say that Article 13 is not sufficient protection for them. Therefore I earnestly plead for deletion of clauses (2) to (6). I strongly support the other two amendments to which I have referred. If Article 13 is passed as it stands, it is not acceptable to the minorities. It is not freedom of speech that you are guaranteeing, nor freedom of the press. You are giving by one hand and taking away by the other., Chaudhari Ranbir Singh, East Punjab General, said he is not in agreement with those who are for abolition of these provisions during the transitional period. He gave notice of two more provisions to Article 13: (7) Nothing in sub‑clauses (d), (e) and (f) shall affect the operation of any existing law or prevent the State from making any law imposing restrictions on non‑agriculturists to acquire and hold agricultural land for the protection of the interests of the tillers of the soil or the peasantry. (8) Nothing in sub‑clauses (d), (e) and (f) shall prevent the State from making laws to declare the minimum economic holdings of land inalienable., After further consideration, he changed his mind and did not move these amendments, because in sub‑clause (5) the words 'in the interests of the general public' denote that whenever the imposition of restrictions is necessary for the protection of the interests of the tillers of the soil and labourers, the governments will have the right to impose necessary restrictions on any section of society, or may allow continuation of existing laws deemed necessary for the protection of the peasantry or labourers. He cited the Land Alienation Act in East Punjab, which debars certain classes from acquiring land. He agreed with Harijans that they, as tillers of the soil, should have the right to acquire land, but argued that extending the same right to all persons would recreate the zamindari problem that the country is trying to abolish., In several provinces, laws for the abolition of the zamindari system have already been enacted. In Punjab, the absence of the zamindari system in its acute form is the result of the Land Alienation Act, which is why agriculturists are in a more advanced position there. He therefore feels strongly that State legislatures should have full liberty to impose restrictions on non‑tillers of the soil in acquiring or holding agricultural lands, and to declare a minimum economic holding of land inalienable, for the protection of the tillers of the soil or the peasantry. The overwhelming majority of the population depends on agriculture and are the tillers of the soil, so 'general public interests' can mean only the interests of the peasantry and labourers, not only the interests of the vocal middle intelligentsia and vested people., The Vice President praised Maulana Hasrat Mohani for his excellent services to the country. He was the first to stand for total independence of our Motherland., Maulana Hasrat Mohani, United Provinces Muslim, said he wholeheartedly supports the amendment moved by Mister Kamath and also supports the amendment of Mister Muhammad Ismail of Madras and the amendment of Mister K. T. Shah. He noted that Mister Kamath's amendment states that everyone should have the right to bear arms. He argued that if Doctor Ambedkar and his committee are honest, they ought to accept this section and include it in the article at once. He warned that rejecting it would make the tendency similar to that of the British Government, which promulgated the Arms Act in India, keeping the inhabitants as imbeciles., He observed that the current party government wants to retain the Arms Act so that it may be applied against political opponents but not against its own party men. He gave an example from Uttar Pradesh, specifically Kanpur city, where the government singled out Socialists, Communists, Independent Socialists, Muslims, Forward Blocists, and others as rival candidates, bringing them under the Defence of India Act, branding some as Goondas, others as Communists, and applying the Arms Act even for possession of a kitchen knife, leading to imprisonment., He urged the government to accept Mister Kamath's amendment and give the right of bearing arms to everybody, otherwise an Indian bureaucracy would replace the English bureaucracy. He also said that the amendments of both Mister Ismail and Professor Shah are of similar nature regarding personal rights and liberty. He argued that as long as no one is proven guilty in a court of law, it should not be lawful to detain anyone under the Defence of India Rules, whether a rival party member or any other. He questioned the right of Habeas Corpus if the High Court has no jurisdiction over such detentions., He submitted that any political or communal party has no right to interfere in the personal law of any group, particularly Muslims. He stated that the three fundamentals in Muslim personal law—religion, language, and culture—are not ordained by human agency. Their personal law regarding divorce, marriage, and inheritance is derived from the Qur'an. Interfering would be very harmful, and Muslims will not submit to any interference in their personal law., The Vice President ordered the house to order. Maulana Hasrat Mohani declared that Muslims will never submit to any interference in their personal law and will face an iron wall of Muslim determination., Shri Vishwambhar Dayal Tripathi, United Provinces General, asked whether the right of human sacrifice would be given to those who believe in it and claim it under the pretext of their personal law., The Vice President asked honourable members to take their seats., Shri Brajeshwar Prasad, Bihar General, rose to support Article 13 with all its reservations and safeguards, stating that these restrictions are necessary in the national interest. He argued that personal freedom must be curtailed if the menace of capitalism is to be met. He noted that nineteenth‑century nation‑states were not confronted with the dangers that modern states face, such as international political conspiracies. Modern law‑breakers employ techniques that cannot be effectively checked by nineteenth‑century judicial institutions, so the state must be vested with wide discretionary powers and individual freedom must be seriously curtailed to eliminate the parasitic class that thrives on profit and exploitation., Shri Rohini Kumar Chaudhari, Assam General, suggested that the honourable member's speech be taken as read because it was being delivered too swiftly to follow., The Vice President asked Mister Brajeshwar Prasad if he agreed to have his speech taken as read. He declined., Shri Brajeshwar Prasad argued that it is wrong to regard the State with suspicion. Today it is in the hands of those incapable of doing wrong to the people, and it is unlikely to pass into the hands of enemies of the masses. Constitutional guarantees of individual freedom will not remain sacrosanct if the machinery of the State passes into the hands of reactionaries. To prevent political reactionaries from gaining power, the rulers must be vested with large discretionary powers. In a modern progressive State there is not much conflict between the individual and the State, as the State is composed of individuals. The executive authority in the modern State has a dominant part to play and is not handicapped by lack of technique. The needs of modern life, socialism and collectivism require the State to have ample powers., The trend of modern politics is towards regimentation of ideas and conduct. The doctrines of Mill and Spencer have become unrelated to the needs of the age. Society, not the individual, has become the primary concern of political theorists and administrators. The objective conditions of modern life have relegated the individual from a position of honour to insignificance. Individual freedom is risky in a community where more than 80 percent of people are in poverty, illiteracy, communalism and provincialism., It is an illusion to think that personal rights of the individual can be firmly secured by clear constitutional language without reservations and safeguards. The enjoyment of these rights depends on certain social conditions outside the scope of any constitution. Man can never enjoy personal freedom as long as society remains organized on the basis of capitalism, war, foreign intervention, poverty, illiteracy, communalism and provincialism. Only with the decline of organized religions and the establishment of a World State based on economic equality and political liberty will personal freedom be achieved., The restrictions on individual rights are not entirely due to the wickedness or ignorance of constitution makers; they stem from centuries of backwardness and foreign misrule that cannot be erased by a single pen stroke. Constitutional guarantees merely facilitate the achievement of personal rights, which are essentially of an inward character, to be secured by reason and proper conduct. Education and communal development are needed to lay the foundations of personal liberty., Shri H. V. Kamath requested his friend to have a few full stops if not other punctuation marks., The Vice President said the honourable member's time was up and that what Mister Kamath said had not added to the dignity of the House., Professor Yashwant Rai, East Punjab General, said the Harijans of Punjab are indebted to the Chairman of the Drafting Committee for including Article 13 in the Constitution. Currently only one particular community can purchase land for agriculture, and Harijans, 90 percent of whom are cultivators, are not permitted to purchase land for cultivation or to build houses. When this article receives assent, they will have the facility to purchase land for houses and for agricultural purposes if they have the capacity. He hopes that the many handicaps faced by Harijans will disappear, as the Congress Government promised house‑building and agricultural facilities for all., Shri Rohini Kumar Chaudhari, speaking after the Vice President, congratulated the House for deciding to drop the word 'sedition' from the Constitution, noting that it had caused much misery and delayed independence. He drew attention to the unfortunate condition of relations with tribal areas, where the British had kept the hills as a preserve and prevented ordinary people of the plains from mixing with tribal peoples. He welcomed the article's provision that all people will be able to travel freely throughout the territory of India, but lamented the proviso allowing a State to restrict this freedom., He cited an incident where members of the Central Legislature, led by Honourable Mister Santhanam, visited Manipur State and were held up for more than an hour by the State's orders despite permission from the Provincial Government. He believes that after the Constitution is passed, steps will be taken to allow free ingress and egress to areas inhabited by scheduled tribes and to remove barriers to movement. He also noted that the article allows people to practice any profession anywhere in India, and hopes that restrictions on professional practice, such as those imposed by the British on lawyers in the hills, will be removed., He commented on Professor Shah's amendment No. 416, which introduces words about things being subject to the provisions of the Constitution. He questioned the need for such wording, suggesting it may be for rhyming, and warned against the use of the word 'guaranteed', citing misleading advertisements. He argued that the word 'guarantee' is perilous and not necessary in the Constitution, and that without it the Constitution can be better understood.
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Then we shall know that there is no attempt to cover up anything not wanted. The clause, as it is without the word guarantee, is quite all right. Sir, this article with the amendments which have been accepted has my wholehearted acceptance. Professor Shibban Lal Saksena (United Provinces: General): Mister Vice President, this article may be truly stated to be the charter of our liberties and this is probably the most important article in the whole Draft Constitution. In the original form in which it was presented to this House, it was open to many criticisms and they were justified. Now I think it has been materially altered. The promise made by Doctor Ambedkar to accept the amendment of Mister Bhargava and others gives me hope that this article in its final form will be a real charter of our liberty., Sir, let us analyse the criticisms made in some of the amendments moved by my friends. First of all, the criticism is that all the provisos were meant to nullify the liberties given in the first clause. But if we carefully examine each of the sub‑clauses, we will find that this criticism is not justified. In clause (2), the word 'sedition' has been taken away, and the word 'authority' has been dropped. What remains in clause (2) are the exemptions of laws relating to libel, slander, defamation, or any matter which offends against decency or morality or undermines the foundation of the State. These alone will remain on the Statute Book., As was pointed out yesterday, even in America where the courts are given absolute power, the Supreme Court has been obliged to limit it. What we are doing is that instead of the Supreme Court we ourselves are limiting this thing. This limitation in the present form is less wide than it originally was. I think this should satisfy the House. In this connection I only want to say one word more. Clause (1)(a) says that every citizen shall have the right to freedom of speech and expression. As proposed in one of my amendments we should bring in here the freedom of the press. I hope Doctor Ambedkar would bring in some amendment to include freedom of the press in this sub‑clause., As regards clause (3), I am glad that after the addition of the word 'reasonable' it has become a much wider charter of liberty. It now reads: 'Nothing in sub‑clause (b) of the said clause shall affect the operation of any law, or prevent the State from making any law, imposing in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub‑clause.' Under this, the existing laws, in so far as they impose restrictions which are not in the interests of public order or morality, are nullified. Everybody will admit that public order has to be provided for. The sub‑clause as amended is much better than what it was. The Supreme Court could now lay down what offends against public order and what does not., Coming to clause (4), I must say that labour will now feel that today they have got their charter of liberty. They can now form unions subject to reasonable restrictions in the interests of public order or morality. So, labour today will thank Doctor Ambedkar for accepting amendments which modified the original clause. In the original form you could not hold a meeting because it would be against the wishes of the general public. Now you will have to prove that the decision to ban a meeting is in the public interest or morality. This is the great charter of liberty for labour., Then I come to clause (5). This qualifies sub‑clauses (d), (e) and (f). It says: 'Nothing in sub‑clauses (d), (e) and (f) shall affect the operations etc. etc.' or 'for the protection of the interests of the Scheduled Castes'. We have added the word 'reasonable' therein. It is very important. The rights such as freedom to move about throughout the country are very important. Some friends pointed out that there are many laws at present in existence in the East Punjab, for instance, which are really very bad and that this clause will not nullify many of them., And then there is clause (6) which relates to carrying on of professions. After the amendments that have been accepted this clause also has become much better. One thing more I want to say. Mister Kamath in his amendment wants the right to bear arms. In most constitutions throughout the world this right has been recognised. We ourselves throughout recent history have asked that this should be our right. In fact I remember when Mahatma Gandhi wrote to Lord Irwin in 1930 about the Eight Points, which he wanted to be accepted, one was about this right to bear arms. The question of this right to bear arms dates back to 1878 when, after the mutiny, the British Government disarmed the Nation. I think that after freedom we should at least allow this thing, as only an armed people can support the Government. I hope Doctor Ambedkar will do something about it., Then as regards sedition, our great leaders like Lokmanya Tilak and others were the victims of section 124‑A. I congratulate Doctor Ambedkar for having put in the clause a sit has emerged., Shri H. J. Khandekar (Central Provinces and Berar: General): Mister Vice President, I rise to submit to the House my views on article 13. I believe that if the man‑in‑the‑street were to read this article up to sub‑clause (g) he would most likely begin to believe that this country has secured its freedom and that every individual within it has also been granted the right of freedom. But if the same person were to proceed further in his study of this article and go through the sub‑clauses (2), (3), (4), (5) and (6) he would revise his opinion and become fully convinced that our country has not as yet attained Swaraj in its correct sense. It would mean that what had been granted by the right hand has been taken away by the left, in the succeeding sub‑clauses. I believe that a majority of the Members of this House hold the same view in this respect as I do., If we confine ourselves to an examination of clause (1), we find, Sir, that the rights granted to the citizens of India under this article are many. Sub‑clause (a) specifically grants freedom of speech and expression. For securing which, as you and the majority of the Members of this House are aware, we resorted to individual Satyagraha under the leadership of Mahatma Gandhi in the year 1941, and as a consequence thousands, nay, hundreds of thousands of people of this country had to rot in the prisons. At that time all of us believed that when Swaraj is established every citizen of this country would also secure for himself the right of freedom of speech and expression. We, no doubt, find that article 13 grants this freedom of speech and expression. But all this has been taken away indirectly by clause (2). I may point out that the Provincial Governments have recently enacted many repressive laws. I am afraid that article 13 will allow these laws to remain in force even in the future. What is worse, this article leaves scope for the enactment of further repressive laws in future. In several provinces such laws as the Goonda Act, Essential Services Act, and Public Safety Act have been passed. It may come as a surprise if I inform the House that, since the advent of the Popular Ministries, Section 144 has been constantly reigning in the big cities of this country. Consequently there cannot be a public gathering of even five or seven persons in cities, nor even for carrying on conversation among themselves or giving vent to their ideas and feelings. If this situation continues also in the future, I am afraid that the freedom which has been wished to be established in this country, the freedom that has been granted in Clause (1)(a) of article 13, will be entirely lost under clause (2) of that article., I feel, Sir, that I should discuss before you each of these sub‑clauses, one by one, so that I may be in a position to request you in the end that this article should be sent back to the Drafting Committee with a request that, after having carefully reconsidered it and having put in it what is really required in the circumstances of the country, it should be resubmitted to the House. I believe that the House would then pass it with pleasure. But I am afraid that all would be lost if the article is passed as it is today. Again sub‑clause (b) of clause (1) grants, Sir, the right to assemble peacefully and without arms. But clause (3) of the article takes away the entire significance of this sub‑clause. Similarly sub‑clause (c) grants the right to form associations or unions. Thus we are given the impression that we would have the right to form associations or unions and thus to carry on organised agitation. For instance, we are given to believe that we could carry on organised agitation for the welfare of labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent, if it so desires, any agitation by labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4). I submit that this article is neither for the good of labour nor of the general community., Further we read of the right to move freely throughout the territory of India. This is sub‑clause (d). Under it every citizen of India would have the right to move freely into any province or any village of India. But the substance of this right is taken away by clause (5). I would make this clear by an illustration. It is a matter of great amazement that in this country there is a law known as the Criminal Tribes Act under which a person is considered a criminal from the moment of his birth. There are also some unfortunate communities in this country whose members would not have the right to move freely in the territory of India granted under this sub‑clause to every citizen of India. I believe, Sir, that you are aware that under the Criminal Tribes Act the people following pastoral occupations cannot go to any particular part of India they would like to go. Now they do not have that freedom. We have in our province a tribe known as Mang Garodi. If it has to go from the village of Khape to the village of Janwanver it is followed by the Police who see to it that it goes only to the latter village and nowhere else. Similarly if it goes from Janwanver to Katol the Police of the former place would go up to Katol to entrust the Police of the latter place to keep watch over it. Thus they have no freedom of movement; whatever freedom of movement is now given under sub‑clause (d) is taken away by clause (5) of the same article. If the intention is not to give to the criminal tribes, who are also citizens of India, the freedom which they are entitled to, it is something extremely unjust., Similarly further on we find the right to acquire, hold and dispose of property. My friend Professor Yashwant Rai has said with reference to this freedom that there is an unfortunate section the Scheduled Castes in the Punjab cannot purchase land on account of the provisions of the Land Alienation Act. Moreover the right that you have granted by this sub‑clause to every citizen has been taken away by the clause which permits the Land Alienation Act to remain in force even in future. Thus the right which the Harijans should also, like other citizens, get under this Constitution would not be available to the Harijans of the Punjab on account of the Land Alienation Act of the Punjab., Pandit Thakur Dass Bhargava (East Punjab: General): This article would most certainly confer this right. Shri H. J. Khandekar: By what article please? Pandit Thakur Dass Bhargava: It will be conferred by this very article 13. Shri H. J. Khandekar: I do not find this specified here. If this article is passed as it is, the rights that the Harijans of the Punjab should get will not be available to them., Mister Vice President: May I point out to you that it would be better if you address the Chair and not carry on conversation among yourselves? Shri H. J. Khandekar: Very well, Sir, sub‑clause (g) grants the right to practise a profession or to carry on any business etc. But all these rights are taken away by clause (6). I would like to place before you, Sir, the difficulty we would be placed in by these provisions. The most unfortunate people in this country, in my opinion, are the sweepers. Whatever we may talk about the grant of rights to these unfortunate sweepers the fact remains that these unfortunate people have never been given any rights by any person in India nor have they ever enjoyed any right said to have been granted to them. To talk of their 'freedom to practise any profession or trade' is a mockery to them. I do not know of the conditions prevailing in other provinces but I know what happens in my province. If a sweeper working under a Municipal Committee desires to give up his work, in my province, he would have to give a notice in writing addressed to the District Magistrate of his intention to do so and can leave his service only if that officer agrees to release him. I am of the view that even the very name of sweeper is a matter of contempt by people. I have consequently held the opinion and have repeatedly said to the sweepers, and I would like again to communicate this opinion through you, Sir, to the sweepers of this country, to give up their present occupation which makes them looked down upon as untouchable by the people of the country, because their work is considered to be so dirty and polluting. I advise them to take to such occupations as are followed by other people. If the sweepers of the whole country were to leave, on my advice, their present occupation, and which they could in exercise of the freedom granted by clause (8), I am sure that they would invite the objection of clause (6) which refers to service in public interest. The fact is that if all the sweepers of Delhi, or Bombay or Calcutta were to stop cleaning latrines, sweeping the streets, they would be said to be acting against public interest; and under this law and under the Essential Services Act they would be compelled to do this work. Then how can you say that all human beings shall have equal rights under this sub‑clause? The handicaps from which we suffer, from which the peasant suffers, from which the workers suffer, from which the sweepers suffer would continue to remain even under this article, if it remains as it is. It is, therefore, my submission, and I believe that the House after having heard what I have already said, would consider it proper that this article should be referred back to the Drafting Committee for being amended. It may then be placed before the House for adoption. This is my proposal, with these words I resume my seat., Shri Algu Rai Shastri (United Provinces: General): Mister Vice President, all the important aspects of fundamental freedom have been dealt with in article 13. From this point of view this article is very important. It is going to be accepted with some minor amendments. Many friends have attacked its provisions on the grounds that the fundamental rights conferred by this article have been taken away by the limitations imposed therein. I feel that along with freedom responsibility is essential. The friends who urge that the rights given in this article have been taken away under the sub‑clauses (2), (3), (4), (5) and (6) have not taken into consideration the people who will elect members to the legislatures which have been authorized under these provisions to apply these restrictions, and the people who would compose these legislatures. I submit that those who would sit in the legislatures would be representatives of the people and they will impose only those restrictions which they consider proper. Such restrictions would be in the interest of the people. Only those restrictions will be imposed which would be necessary in the interest of public health, unavoidably necessary for the maintenance of public peace and desirable from the viewpoint of public safety. No restriction will be imposed merely to destroy the liberties of the people. Freedom is a great art even greater than the art of music and dancing. One who is adept in music or dancing keeps his voice under control and maintains restraint and control over his bodily movement, and on the movement of his feet. He has to move in accordance with certain recognised rules of music and dancing. He cannot sing and dance out of tune and time, in an unrestrained manner. He remains fully bound to the rules. Full freedom is being conferred upon us but it can never mean that we should not be under any restrictions whatsoever. Freedom of speech does not mean that we can give expression to whatever comes to our mind without observing any limitation or rule in this respect. In legislatures we have to follow certain rules and regulations. We are here as the representatives of the sovereign people but even then there are hundreds of restrictions upon us. Freedom by its nature implies limitations and restrictions. 'Kavihin Arth Akhar Bal Sancha, K artal Tal Gatihin Nat Nacha' The dancer dances to the measure of clapping. The poet is bound by the significance of words. A dancer dances according to certain fixed timings and never makes a false movement. His movements are in harmony with the tal. When a nation or a community attains freedom, it begins to bear a great responsibility on its shoulders. We cannot therefore say that the restrictions that have been imposed will retard our progress., One of my friends made a reference to the Bhangi community. I have been working amongst them since 1924. I have thus a personal experience extending over a period of twenty‑four years. There can be no doubt about the indescribable wretchedness of the Bhangis and of our other so‑called untouchable brethren. It is indeed very deplorable. But the restrictions provided for in article 13 do not imply that Bhangis will continue to remain bound to their present occupation. Under this article there would be no compulsion for any person to follow any particular occupation. This article as a matter of fact, instead of prescribing the compulsory pursuit of any occupation, provides for unrestricted freedom to every individual to follow any vocation he pleases. I think that the freedoms granted under sub‑clauses (f) and (g) need clarification. In sub‑clause (f) is specified the right of a person to acquire, hold and dispose of property; while in sub‑clause (g) it is stated that there is freedom of a person to practise any profession or to carry on any occupation, trade or business or other means of livelihood of one's choice. It is true that the State has been authorised to restrict this freedom in sub‑clauses (5) and (6). But a little reflection would show that it was necessary to limit the freedom so widely provided for in sub‑clauses (f) and (g) of clause (1) of article 13. Such unrestricted freedom as is provided in these two sub‑clauses could not be free from grave danger. For instance, we have in our society the practice of prostitution. Is this to continue in future also as it has done till now? It should not in any circumstances be permitted to continue. Evidently there must be some provision whereby its practice may disappear by providing for a profession worthy of being adopted. Evidently restrictions have to be imposed on it. Again, there is freedom in our society to earn one's livelihood by selling intoxicants. In the Directive Principles we have now included a provision for the introduction of Prohibition but in the Fundamental Rights we have given everyone the unrestricted rights to earn his livelihood. Both the provisions appear to be contradictory to each other. Thus it is necessary to provide that no one shall be permitted to earn a living by selling intoxicants except for medicinal purposes. Again begging is a common profession in our society today. Should it be permitted to continue as it is? I submit that there should be a good arrangement for bringing it to an end., We have now attained freedom. We should do nothing which may endanger it. It is our duty to be good citizens. We have also to see that freedom is not misused. Up till now we were under foreign rule. Indian subjects received step‑motherly treatment from the rulers. In England no intoxicant can be mixed with any medicine other than in the prescribed proportion but here bottles of country wine are being sold openly in the market. Our 'Freedom' our own mother can never permit her children to have this because she cannot permit her children to go astray. Good citizenship implies restrictions: Be truthful and sweet in speech, but do not speak out the unpleasant truth. Anyone has the freedom to state the truth, but not the freedom to speak out the unpleasant truth. This is a restriction and good citizens have to accept this restriction. I beg, therefore, to express my appreciation of article 13 read with the amendment moved by Doctor Ambedkar and which already has been referred to. I would like to make another observation. I feel that the rights guaranteed in sub‑clauses (f) and (g) are rather too wide. I have already said something about freedom of making a living. I shall resume my seat after saying a few words about the right to acquire property. The type of freedom being guaranteed implies that the capitalists and feudal aristocrats would have full rights to acquire and dispose of property. But the mode in which property is being acquired and held is such as permits the property owners to have all the benefits while workers who create this property have all the toil as their share. 'The ox produces and the horse consumes' this saying is being fulfilled. Of course, this should not be so. I submit that this right of property should be so interpreted in future as to permit the transformation of individualistic capitalism into State capitalism. All the means of production and the distribution of the commodity should be owned and controlled by the State and not by the individual. 'Unless the individual ownership yields place to collective ownership social ownership there cannot be real Swaraj.' To reach this goal it is necessary that these restrictive provisions should be interpreted in this way. With these words I express my support for this article., Shri Amiyo Kumar Ghosh (Bihar: General): Mister Vice President, Sir, we are dealing today with one of the most important clauses of this Constitution. We are dealing with the freedom of citizens. That is to say what rights the Indian people have under this Constitution. On reading the entire clause, I feel that the rights which have been recognised under sub‑clause (1) of this article have been to a great extent abrogated by the subsequent provisos. In a Constitution, there are two important points, namely what are our rights and what form of Government we are going to have. These are the two important subjects in a Constitution and others flow from them and therefore one expects that so far as the rights of the people are concerned, they should be expressed in clear, simple and straight language, so that a common man when he reads the Constitution can understand exactly and precisely what are his rights and what are the checks to his rights. I do not propose to say that at times of emergencies or grave needs, freedom does not require to be checked to a certain extent. I believe in checks and balances, but at the same time, I must say that those checks should be very precise, and clear and should not be couched in ambiguous language and left to courts for decisions. Now you will find, Sir, that in all these sub‑clauses (2), (3), (4), (5) and (6) we have used the words 'interest of general public', 'general public interest', 'public order' and 'property' without defining them and I think it will take centuries for the Supreme Court to exactly say what really these words mean. By incorporating such words in the sub‑clauses, wide powers have been given to the Central and the Provincial Legislatures to frame laws by which they can restrict the freedom which has been given to the people under sub‑clause (1) of this article. I do not like to enter into any criticism of this article, but the only thing I want to say is that the entire clause is very disappointing. Specifically, I will draw the attention of the Honourable Doctor B. R. Ambedkar to sub‑clause (5). Now, Sir, in this sub‑clause (5) the rights which have been recognised in sub‑clauses (1)(d), (e) and (f) above have been practically negated and have given rise to grave anxiety in the minds of many regarding the exact position in matters of residence, acquisition and disposition of properties. The exact significance of clause (5) in respect of (e) and (f) requires further clarification. Next I cannot understand why in this clause, the words, 'for the protection of the interests of any aboriginal tribe' have been incorporated. What it exactly means I fail to understand. Does it mean the 'tribal area' or does it mean that wherever any aboriginal tribe lives, irrespective of their numbers the legislatures can frame laws safeguarding their interest as, for instance, if there be fifteen aboriginals living in Delhi, can the Central Legislature frame a law by which they can restrict the rights of other people in the interests of these fifteen or sixteen aboriginals? I could understand that wherever there may be some aboriginals the legislature can make a law, by which they can restrict the rights of all others for the protection of those few. Sir, I feel the position is ambiguous and clumsy and should be made clear. I fail to understand why clause (d) has been taken with sub‑clause (5). Free movement has been restricted by that sub‑clause. My own personal view is that there should not have been any restriction regarding movement. The citizens should have been given a free right to move. Only on administrative or political grounds the Central or provincial legislatures could be empowered to frame laws judiciously by which they can restrict the movement of the people and this power should be worked sparingly and in very emergent circumstances. In every matter of freedom, restrictions have been imposed in the interest of general public. What this interest is, we do not know and has not been stated anywhere. Such words can be interpreted differently in different States and the Centre and may give rise to separate and conflicting laws. Sir, this would create great confusion.
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Therefore, I submit, if this article is read and viewed, it only gives rise to disappointment, and with a little more effort and with as light inclination this article could have been framed in such a language that it would have been a model article in the whole of the Constitution., Mister Vice President: Mister T. T. Krishnamachari. Shri Mahavir Tyagi: May I know, Sir, is it by reference to the slips that you are calling the speakers? Mister Vice President: I am not prepared to give you information as to how I conduct my work. Shri Gopal Narain (United Provinces: General): So that we need not stand every time. Have we to stand every time or send slips, Sir? Mister Vice President: The remedy lies in your hands; you can do both, you can send a slip and stand, or you can do either., Mister T. T. Krishnamachari (Madras: General): Sir, as the speaker that spoke before me said, this is perhaps the most important article in this Part and one which enumerates the rights for the attainment of which we in India have undergone all the troubles to obtain our freedom. Actually, Sir, it is in the manner in which the State is going to allow the people to use the rights enumerated in this particular article that the people can feel that all that they have done in the past and the sacrifices that they have made in the past to obtain freedom was worthwhile., Sir, I do not say that this article is perfectly worded; nor can I maintain that the exceptions to parts of this article provided by clauses (2), (3), (4), (5) and (6) do not curtail the liberty and the right conceded to individual citizens in clause (1). But, as a student of politics, I have to realise that there can be no absolute right and every right has got to be abridged in some manner or other under certain circumstances, as it is possible that no right could be used absolutely and to the fullest extent that the words conveying that right indicate. It is merely a matter of compromise between two extreme views., Having got our freedom only recently, it is possible that we want all the rights that are possible for the individual to exercise, unfettered. That is one point of view. The other view is that having got our freedom, the State that has been brought into existence is an infant State which has to pass through various kinds of travail, and what we could do to ensure that the State continues to function unimpaired should be assured even if it entails an abridgment of the rights conferred by this article., I have no doubt in my mind that, though I have had to say something perhaps harsh on certain occasions in regard to what the Drafting Committee has done generally, in this article, the Drafting Committee has chosen the golden mean of providing a proper enumeration of those rights that are considered essential for the individual, and at the same time, putting such checks on them as will ensure that the State and the Constitution which we are trying to bring into being today will continue unhampered and flourish., Sir, language is always rather a difficult affair. What language conveys to me may not convey to another person, and as my honourable Friend Doctor B. R. Ambedkar put it, we are legislating in a language which is foreign to us, the exact import of which we do not understand. Should we do it in one of our own languages? The difficulty would be all the greater for the reason that the language of one set of people is not the language of another set of people. Besides, precise thinking in our own language so that we could adopt it for constitutional purposes has not yet developed., Actually we have to depend for the interpretation of the particular restrictions that are enumerated herein on the Supreme Court of India or some other authority that would come into being in the future, to ensure that the peoples' rights are not abridged. Speaking today in the context of the situation in which we are placed, we cannot but envisage that those rights will be abridged in order to maintain the stability of the State., This State that has now been brought into being has been put to a lot of travail in the first eighteen months of its existence and every Member of this House knows it. Special powers are needed by the Government to meet not merely the refugee problem, not merely the fact that there are various forces in this country which do not like this State to grow in the present form, but also with the various economic troubles that now face this country., Are we to build up our Constitution, putting in these restrictions which are necessary today in the light of things that stand as they stand today, or are we to visualise a time when things will be normal and when it will not be necessary for the State to use these powers, is the problem. Again, I think, the Drafting Committee and my honourable Friend Doctor Ambedkar have chosen the golden mean in this particular matter., There is one other matter on which I would like to lay stress before I sit down. We in this House, though the bulk of us belong to one party, have got different ideas on economic matters. We were all together in one particular fact that the British should go; we are all united in the desire that we should have a stable constitution which will ensure to the common man what he needs most, what he did not obtain in the former regime. But, in the achievement of that goal in the methodology to be adopted for the achievement of that goal our ideas vary considerably, and vary from one end to the other., I am happy to see that the Drafting Committee has chosen to avoid importing into this particular article the economic implications in the enumeration of fundamental rights that obtain in other constitutions. I think it has been a very wise thing., I know a friend of mine in this House has objected to one particular sub-clause (f) of article 13, namely, to acquire, hold and dispose of property. I would like to assure him and those who hold the opinion that he holds that this does not really mean that there is any particular right in regard to private property as such, no more than what any person even in an absolutely socialistic regime will desire, that what he possesses, what are absolutely necessary for his life, the house in which he lives, the movables that he has to possess, the things which he has to buy, should be secured to him, which I think any socialistic regime, unless it be communistic, will concede, is a right that is due to an individual., Actually the economic significance that attaches to any enumeration of Fundamental Rights, such as the rights conceded in the Bill of Rights in the American Constitution and the addition to these in the Fourteenth Amendment, finds no place so far as this particular Constitution is concerned, and I am able to say that that is one of the bold features of this Draft Constitution. We have chosen to avoid as far as possible, in spite of the fact that the vested interests are still with us and they have a certain amount of influence we have chosen to avoid as far as possible laying that stress on the importance of the economic surroundings which is a significant feature of the American Constitution, and I do hope that my honourable Friend, who objected to a particular sub-clause in this article namely clause (f), will now realise that it has no meaning so far as property rights are concerned except in something that is dear to an individual and which is very necessary to concede in an enumeration of rights of this nature., Sir, the future, what it is going to be none of us really know, but we almost all envisage that the future will be one which will be bright, the future will be one where the State is going to be progressive, where the State is going to interfere more and more in the economic life of the people not for the purpose of abridgment of rights of individuals but for the purpose of bettering the lot of individuals. That is the State that I envisage, a State which will not be inactive, but will be active and interfere for the purpose of bettering the lot of the individual in this country; and I do feel, Sir, that as it is a well known canon that in any Constitution that is forged there should be a reconciliation of past political thought which will at once pave the way for a new level of thinking, a new level of progressive and critical thinking. I think those conditions are at any rate possible in an enumeration of the Rights such as is found in article 13., Sir, there is no use comparing this particular article which happens to be the crux of the Fundamental Rights with either what obtains in the commentaries of the English Constitution or what obtains in the text of the American Constitution or any other Constitution, for the reason that the setting is totally different. There is no use anybody saying that a particular feature is not found in the English Constitution. English jurisprudence is something totally different for the reason that English Parliament does not provide for the enumeration of all these rights which is absolutely based on custom on which you cannot depend forever because Parliament there is supreme and can make laws contravening every recognised custom. They do not have to have a Constitutional amendment for that purpose. Parliament can formulate new laws which might cut right across the conventions, and the usages of the Constitution established over centuries., But so far as the American example is concerned—and certainly there are other examples which are modeled on the American example—there is one distinction between our own way of thinking and what the Founding Fathers in America thought and what was sustained in America until recently, viz., the economic basis of the American Constitution is something totally different from what we envisage to be the economic basis of our Constitution. So any analogy is only applicable up to a point, and therefore any of our friends who seek to import particular provisions of the American Constitution or particular words either in this particular article or in later articles, have to recognise that the bulk of the opinion of this House is something totally different from the economic bias that more or less determined the American Constitution, right at the inception and later on as well, on which bias legal literature has built up several conventions attached to that Constitution., Sir, I would like to say that the amendments proposed by my honourable Friend Doctor Ambedkar particularly to clauses (4), (5) and (6) are a great improvement on the original draft and my own view is that they do take away the lacunae that existed in the original draft. But I should like to lay emphasis on one particular amendment moved by my Friend Mister Munshi who is not here. The value of that amendment happens to be only, to a very large extent, sentimental. The word 'sedition' does not appear therein., Sir, in this country we resent even the mention of the word 'sedition' because all through the long period of our political agitation that word 'sedition' has been used against our leaders, and in the abhorrence of that word we are not by any means unique. Students of Constitutional law would recollect that there was a provision in the American Statute Book towards the end of the 18th Century providing for a particular law to deal with sedition which was intended only for a period of years and became more or less defunct in 1802. That kind of abhorrence to this word seems to have been more or less universal even from people who did not have to suffer as much from the import and content of that word as we did. But all the same the amendment of my honourable Friend Mister Munshi ensures a very necessary thing so far as this State is concerned., It is quite possible that ten years hence the necessity for providing in the Fundamental Rights an exclusion of absolute power in the matter of freedom of speech and probably freedom to assemble, will not be necessary. But in the present state of our country I think it is very necessary that there should be some express prohibition of application of these rights to their logical end. The State here as it means in the amendment moved by my honourable Friend Mister Munshi as I understand it, means the Constitution and I think it is very necessary that when we are enacting a Constitution which in our opinion is a compromise between two possible extreme views and is one suited to the genius of our people, we must take all precautions possible for the maintenance and sustenance of that Constitution and therefore I think the amendment moved by my honourable Friend Mister Munshi is a happy mean and one that is capable of such interpretation in times of necessity, should such time unfortunately come into being so as to provide the State adequate protection against the forces of disorder., Sir, one other matter which I would like to mention before I sit down is this. Subclause (c) of article 13 (1) is very important. I do not know if people really realise as they would know in other countries and particularly in the United States, labour has had to undergo an enormous amount of trouble to obtain elementary rights on matters of the recognition of their rights, in the matter of the right to assemble together as a Union. I do not think that in my view clause (4) of this particular article unnecessarily abridges the rights conferred by sub-clause (c) of clause (1). My own feeling is that we have more or less sought to cut across the difficulties which the other countries have faced in this particular matter and we have ensured for labour the very legitimate right to come together, to agitate and to obtain for themselves and for the members of their Union the rights that are justly theirs. That I think is more or less a charter for workers in this country and I am happy to see that the vested interests have not tried in any way to abridge this particular right., On the whole, Sir, this particular article with the amendments proposed by my honourable Friend Mister Munshi and the three amendments proposed for clauses (4), (5) and (6) by Doctor Ambedkar and also the addition of the word 'reasonable' which has been brought in by my honourable Friend Mister Thakur Dass Bhargava, represents in my opinion a fairly reasonable enumeration of our rights and a fairly conservative abridgment of those rights. The working of these particular rights depends upon the genius of our people, upon how we develop ideas of liberty which are still today in a very undeveloped state., It is no doubt true that our leaders are sometimes hasty, they want more powers, when they are faced with difficult situations and they think the only way in which they could deal with them is to have more powers. They do not recognise that they are leaders of the people the chosen leaders of this country each one with a personality of his own and the aggregate effect of their personality and their influence can cut right across the necessity for any drastic powers. That kind of confidence will come only later on at the moment they merely want to follow in the footsteps of people who preceded us in the government of this country, who had no touch or contact with the people, who could never get on to a platform and persuade the people to do any particular thing, who only wanted powers which could be exercised through the medium of the bureaucracy. That mentality will change, and will surely change, because our leaders are very eminent people. Surely, the House will realise that the Prime Minister and the Deputy Prime Minister, if they get upon a platform can sway millions of people if they could only get their voices to reach them. It only depends upon the type of leaders that we get for the abridgment of these rights which are enumerated here to become a dead letter, and that is in the lap of the gods. For the time being we have done the very best possible which human ingenuity can devise., Sir, I support the article before us., Shri Lakshmi Narayan Sahu (Orissa: General): Mr. Vice President, I would like to make an observation with regard to article 13 which is now under discussion. The article confers certain rights on the citizens, but the words 'subject to the other provisions of this article' occurring in the very beginning of the article, serve as a warning to us that the article confers freedom, no doubt, but that it is only within a limited sphere. Moreover the sub-clauses (2), (3), (4), (5) and (6) that follow, re-emphasise that unless the freedom granted is enjoyed within the prescribed limits, people would get into great difficulty. I feel, however, that both the words 'subject to other provisions of this article' and the sub-clauses (2), (3), (4), (5) and (6) should be deleted from the article. We shall be able to visualise the true picture of our freedom only when this has been done. So long as the sub-clauses remain, we cannot have a correct picture of our freedom. Moreover I feel that liberty has been considerably narrowed during the drafting process. It is just like the narrowing of the size of a temple as a consequence of its main entrance being made too large during the process of constructing the temple. It is of no use whatever. There is an Oriya proverb which is meant for such a situation. It is Ghare na pasuna chal vaguchi Devalku Mukhashala Bil Gala. It means that it is no use making a house with so small an entrance that one's entry into the house is rendered difficult without striking his head against the door-frame. Though there has been considerable discussion on the article, we wish that we discuss it more thoroughly and that the Drafting Committee gives more consideration to it. Thus, whatever drawback we find in the article should be removed. In my opinion sub-clauses (2), (3), (4), (5) and (6), must be deleted. Unless this is done we shall not have the taste of freedom and shall continue to remain in a condition of fear. Those who till recently were seeking to organise disobedience of laws are, being today, in the seat of power, apprehensive of the violation of laws by other people, and under this apprehension, are seeking to make the law so comprehensive and rigid as to prevent any one outside the ruling group from going beyond its control., I would like to say that article 13 which is now under discussion betrays an unintelligible apprehension on the part of authority. The fact is that there are many provisions in this Draft Constitution which would prevent the citizens from committing any disorder. Thus article 25 provides that 'The right to move Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed'. I submit, therefore, that all the restrictive provisions contained in article 13 should be deleted. My belief is that article 25 will be as helpful to the government as to good citizens. Unless the restrictive provisions of this article are deleted, we cannot properly enjoy our National Freedom. Moreover it has always been our loud assertion that self-government is better than good government. Now we have grown indifferent to self-government and are raising the slogan of good government. With so many rigid provisions what good government can you have and for whom? Those who are in power at present are apprehensive that the people and political parties other than those of the ruling group would practise disobedience of laws. That is why so many restrictive provisos have been included in the Draft Constitution. It is precisely why I insist that the Fundamental Rights should be treated as fundamental and inviolable. It is not proper therefore to delimit them by so many restrictive clauses and sub-clauses., There is one observation I would like to make about the Adibasis. I agree to a certain extent with what Shri Jaipal Singh has said. Adibasis move about with arms. This article lays down that all citizens shall have the right 'to assemble peaceably and without arms'. We should therefore consider whether or not this clause takes away from the Adibasis their customary right to bear arms. In view of the provisions contained elsewhere in the constitution, I think, this will not affect the right of Adibasis to bear arms. If this view be correct Adibasis need not fear the loss of their right. Though I have no objection to the words 'assemble peaceably and without arms' being put in here, yet I feel that nowhere in the Draft Constitution can be found any provision regarding the repeal of the Arms Act and the grant of the right to the people to bear arms a right which is essential to make our people fearless. Therefore, I would like that a provision for the repeal of the Arms Act and making it permissible to the people to bear arms be included in the Draft., We often talk of minorities today but we should stop this kind of talk now. What is a minority? When we are going to make one and the same provision for all, I fail to see who remains to constitute the minority. It may be said against this view that the Depressed Classes are a minority, the aboriginals are in a minority and the Muslims are a minority. But once it is conceded that a particular group is a minority there is the danger that many other groups would begin to claim for being considered as minorities. Formerly in the political sphere the Muslims were considered a minority. But then the Depressed Classes got themselves included in this category. I am afraid that among the Depressed Classes themselves new groups would begin demanding the status of a new minority. The same is, in my opinion, the case of the aboriginals. I would, therefore, like that the word 'minority' wherever it occurs in the Draft Constitution should be deleted and the article 13 should be so drafted that all may feel that they have got real Swaraj and that they have no cause for apprehension and that they have as unrestricted a freedom as anyone else., Shri Deshbandhu Gupta (Delhi): Mr. Vice President, I have had an opportunity once before of representing my views on the recommendations of the Drafting Committee. I was not at that time in a position to congratulate my Friend, Doctor Ambedkar and the Drafting Committee, on certain of their commendations, which related to the Chief Commissioners' Provinces. But today I feel that on article 13, which relates to our Fundamental Rights, and particularly after this amendment as it stands, the Drafting Committee deserves our hearty congratulations. Some of my friends here have objected saying that what has been given by one hand has been taken away by the other. But if you ponder a little, you will find that it is not so. If someone is given a freedom by which the freedom of the other is curtailed, then I would say, that such a demand is not for the right type of freedom. For example, it has been stated that restrictions have been imposed on the movement of people belonging to the criminal tribes. I would like to ask, why should not restrictions be imposed on the movement of the criminal-tribe people, when they are a source of danger to other law-abiding citizens? Could anyone be serious in saying that restrictions and conditions imposed on the criminal tribes should not have been imposed at all? Or that the presence of those restrictions and conditions has in any way curtailed our freedom? Similarly in respect of land, it has been stated that henceforth our Harijan brethren would not be able to purchase any land for themselves and the Land Alienation Act would continue to stand as it is. It is perfectly correct to say that the most objectionable feature of the Land Alienation Act was that certain castes had been mentioned therein. For example, a Bania or a Brahmin or a Harijan could not purchase land. It was wrong. But in fact, that restriction is being swept aside today by the conferment of the Fundamental Right that all citizens shall have the right to acquire property. From now on, if any restriction is imposed, it would have to be proved whether it is proper or improper. That question would be decided, under the provisions of this section, by the Supreme Court of India. It is a big gain. Formerly, the phraseology of the article was defective, but that defect has been removed by the acceptance of the amendment of my Friend, Pandit Thakur Dass Bhargava, which seeks to add the word 'reasonable'. Now, there is nothing to warrant the imposition of any undue restriction. If there would be any, then against that an appeal could be preferred, and that would be decided by our Supreme Court which would be composed of great experts in India. That is why I feel that we should welcome this article and that it would be wrong to give an impression that it curtails our freedom in any sense. We should realise that our country is now a free country. I agree with my Friend, Shri Algu Rai Shastri that, along with rights, certain obligations and responsibilities have also come upon us. If we do not stand by those obligations then our freedom would be the freedom of the jungle. That freedom, I think, would not be such as to merit a welcome from us. Therefore, I think, this article as amended, should be accepted by us. We should realise that it forms the basis of our constitution, and it is a thing of which we can rightly feel proud and which will raise us in the estimation of the whole world., Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, I consider article 13 as the most important article, as it deals with some of the fundamental rights which are common to all free countries and all free citizens in the world. A number of amendments have been moved to this article which can all be classified under three heads. Some want to remove all restrictions on the rights that have been set out in clause (1). The fundamental rights guaranteed in clause (1) of article 13 are freedom of speech and expression, assembly and association, right to move freely inside the territory, right to practise any profession, right to reside; these are the fundamental rights that have been guaranteed. There are exceptions to these fundamental rights that have been set out in this clause and they are to be found in the subsequent clauses (2), (3), (4), (5) and (6). Some of the amendments are for the deletion of the clauses; and some to make improvements so that these provisos may not take away the rights that have been guaranteed under clause (1). Pandit Thakur Dass Bhargava has moved an amendment saying that if any restrictions have to be imposed upon these rights that have been guaranteed in clause (1), they must all be reasonable. I believe that that amendment would sufficiently meet the situation. Regarding freedom of speech we have improved upon the restriction that has been imposed in clause (2). The word 'sedition' has been removed. If we find that the government for the time being has a knack of entrenching itself, however had its administration might be it must be the fundamental right of every citizen in the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on.
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The word 'sedition' had become obnoxious in the previous regime. Consequently we approved an amendment that the word 'sedition' should be removed, except in cases where the entire State is sought to be overthrown or undermined by force or otherwise, leading to public disorder; but any attack on the government itself should not be made an offence under the law. We have gained that freedom and ensured that no government could entrench itself, unless the speeches lead to an overthrow of the State altogether., There are certain amendments proposed for addition to the Fundamental Rights that require detailed consideration. The foremost of those amendments relates to guaranteeing that every citizen shall have the right to exercise his personal law. We have already discussed personal law at length in the Directive clause where a direction was given that a uniform code of civil law must be evolved. Amendments have been moved that unless a provision is made in the Fundamental Rights there is no safety and that the majority community may introduce its own personal law or flagrantly violate the personal law of any community., Regarding Muslim law, as recently as 1939 the Central Legislature passed a law enabling the dissolution of Muslim marriages under certain circumstances. Under Muslim law a man has the unilateral right to declare a marriage void by pronouncing the word 'talaq' and there is another form of divorce called 'kulam'. A woman normally has no right to dissolve a marriage; she must go to a court and establish grounds such as impotency. These matters have now been made easier. A woman who cannot lead a family life with her husband in the same household is entitled, under certain conditions, to separation, which had not been envisaged in the Dissolution of Muslim Marriages Act. As a member of the Assembly I was on a committee that considered this question and left the matter for the Muslim members concerned to settle., The proposal to include the right to bear arms in the Fundamental Rights was raised by Mister Kamath. It is true that for a long time the Congress passed resolutions demanding the right to bear arms. The situation has changed. Earlier we were slaves and wanted to equip ourselves sufficiently so that in case of need we could use arms to get out of the foreign yoke. Today, in a civilized world, I ask whether everybody should be allowed to fight even to defend himself. Except in extreme circumstances no force should be used. When force is necessary it must be concentrated in the State, which must stand between man and man and citizen and citizen. No individual citizen ought to be allowed to attack another., Shri H. V. Kamath: Not even in self‑defence? Shri M. Ananthasayanam Ayyangar: Very often defence is offence in the hands of strong young men whose blood is very warm like that of my friend. Mister Kamath's defence very often means offence. Shri H. V. Kamath: I strongly protest against that remark, Sir. Shri M. Ananthasayanam Ayyangar: I am sorry, Sir. Mister Vice‑President: He has expressed his regret. Shri M. Ananthasayanam Ayyangar: I have the greatest regard for my young friend and his youthful enthusiasm., As regards freedom of thought, an amendment was moved stating that freedom of thought ought to be allowed. Nobody can prevent freedom of thought; it is a fundamental right. It is only freedom of expression that has to be allowed. Freedom of the press means freedom of expression. Regarding the secrecy of telegraphic and telephonic communications, it is a debatable point and we ought not to allow any change in the existing provision., Mister Vice‑President: An enquiry was made of me as to how I have tried to conduct the proceedings of this House. I refused to supply the information at that time because I thought it might be left to my discretion to explain how I conduct the proceedings. I see that I have not been able to satisfy all the members who desire to speak. At the present moment I have here twenty‑five notes from twenty‑five different gentlemen all anxious to speak. There is no doubt that each one will be able to contribute something to the discussion, but the discussion cannot be prolonged indefinitely. I have tried to get the views of the House as a whole. If Honourable Members will kindly go through the list of speakers who have already addressed the House they will find that every province has been represented and every so‑called minority from every province has been represented., The Honourable Doctor B. R. Ambedkar: Among the many amendments moved to Article 13, I propose to accept amendment No. 415, No. 453 as amended by amendment No. 86 of Mister Munshi, and amendment No. 49 in List I as modified by Mister Thakur Dass Bhargava's amendment to add the word 'reasonable'. The amendment which seeks to remove the words 'subject to the other provisions of this article' should be accepted. Then I accept No. 453 as modified by amendment No. 86, and amendment No. 49 in List I as modified by the amendment of Pandit Thakur Dass Bhargava which introduces the word 'reasonable'., The press is merely another way of stating an individual or a citizen. The press has no special rights that are not to be given or exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers they are merely exercising their right of expression; no special mention of freedom of the press is necessary., The position on the right to bear arms is clear. It is true that the Congress Party agitated for the right to bear arms, but the circumstances when such resolutions were passed no longer exist. The British Government had refused to allow Indians to bear arms on the ground that a subject people should not have the right to bear arms against an alien government so that they could organise themselves to overthrow the Government, and consequently the basic considerations on which those resolutions were passed have vanished. Under present circumstances I cannot conceive how the State could carry on its administration if every individual could purchase all sorts of instruments of attack without any restriction., The proviso restricts the right. Regulation, as judicially interpreted, prescribes conditions, but the conditions can never be such as to completely abrogate the right of the citizen to bear arms. Therefore regulation by itself will not prevent a citizen who wants to have the right to bear arms from having it. I question the policy of giving all citizens indiscriminately such a fundamental right. If Mister Kamath's proposition were accepted, thousands of citizens described as criminal tribes could bear arms, and habitual criminals could claim the right to possess arms. The proviso cannot deny a man the right to bear arms because he belongs to a particular class., Regarding the saving of personal law, the matter was fully discussed when we considered one of the Directive Principles that enjoins the State to strive to bring about a Uniform Civil Code. Introducing a saving clause would disable the legislatures in India from enacting any social measure. 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 limit the definition of religion so that it does not extend beyond beliefs and rituals essentially religious. Laws relating to tenancy or succession need not be governed by religion. In Europe Christianity does not mean that Christians everywhere have a uniform system of inheritance law. I do not understand why religion should have such expansive jurisdiction to cover the whole of life and prevent the legislature from encroaching upon that field. The State's power to legislate does not obligate it to do away with personal laws; it merely gives a power. No one need be apprehensive that the State will immediately enforce that power in a manner objectionable to Muslims, Christians or any other community., The term 'Adibasi' is a general term with no specific legal connotation, similar to 'untouchable'. In the Government of India Act of 1935 it was felt necessary to give the word 'untouchable' a legal connotation by enumerating the communities regarded as untouchable. The same issue arose with regard to Adibasis. To provide a precise definition for legal purposes, the term 'Scheduled Tribes' was introduced and the Adibasis were enumerated under that head. The word 'Scheduled Tribe' has a fixed meaning because it enumerates the tribes in the two Schedules. The term 'Adibasi' is a general term without definite legal meaning., If a member of a Scheduled Tribe living in a Scheduled Area or a Tribal Area migrates to another part of India outside both areas, will he be able to claim from the local government the same privileges he would be entitled to within the Scheduled or Tribal area? It is a difficult question. As the present Constitution stands, a member of a Scheduled Tribe going outside the Scheduled Area would not be entitled to carry with him the privileges he enjoys within the Scheduled or Tribal area. It would be practically impossible to enforce the provisions that apply to tribal or scheduled areas in other areas., Mister Vice‑President: I shall now put the amendments which have been moved, numbering thirty, to the vote one by one. Amendment No. 412 proposes to substitute for Article 13 the following: Subject to public order or morality the citizens are guaranteed (a) freedom of speech and expression; (b) freedom of the press; (c) freedom to form associations or unions; (d) freedom to assemble peaceably and without arms; (e) secrecy of postal, telegraphic and telephonic communications. Amendment 13‑A: All citizens of the Republic shall enjoy freedom of movement throughout the whole of the Republic. Every citizen shall have the right to sojourn and settle in any place he pleases. Restrictions may, however, be imposed by or under a Federal law for the protection of aboriginal tribes and backward classes and the preservation of public safety and peace. The amendment was negatived. Amendment No. 415, deleting the words 'Subject to the other provisions of this article' in clause (1) of Article 13, was adopted. Subsequent amendments proposing additions to clause (1) of Article 13, such as adding 'and are guaranteed' after 'all citizens shall have', inserting a new sub‑clause for freedom of thought, and various other insertions, were negatived.
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The question is: \That after sub‑clause (g) of clause (1) of article 13, the following new sub‑clauses be added: (h) to follow the personal law of the group or community to which he belongs or professes to belong; (i) to personal liberty and to be tried by a competent court of law in case such liberty is curtailed.\ The amendment was negatived. Mister Vice‑President: Amendment No. 502., The question is: \That after clause (6) of article 13, the following new clauses be added: (7) Nothing in clauses (2) to (6) of this article shall affect the right guaranteed under sub‑clause (h) of clause (1) of this article; (8) Nothing in the clauses (2) to (6) shall affect the right guaranteed under sub‑clause (i) of clause (1) of this article; (9) No existing law shall operate after the commencement of the Constitution so far as the same affects adversely the right guaranteed under sub‑clause (i) of clause (1) of this article and no law shall be passed by the Parliament or any State which may adversely affect the right guaranteed under sub‑clause (i) of clause (1) of this article.\ The amendment was negatived. Mister Vice‑President: Amendment No. 445. I shall explain one thing. Honourable Members will note that I am calling out the amendments in the order in which they were moved. That is why the numbers are not consecutive., The question is: \That the following new clause be added after clause (1) of article 13: Liberty of the person is guaranteed. No person shall be deprived of his life, nor be arrested or detained in custody, or imprisoned, except according to due process of law, nor shall any person be denied equality before the law or equal protection of the laws within the territory of India.\ The amendment was negatived. Mister Vice‑President: Amendment No. 445., The question is: \That clauses (2) to (6) of article 13 be deleted and the following proviso be added to clause (1): Provided, however, that no citizens in the exercise of the said right shall endanger the security of the State, promote ill‑will between the communities or do anything to disturb peace and tranquility in the country.\ The amendment was negatived. Mister Vice‑President: Amendment No. 447., The question is: \That for clause (2) of article 13, the following be substituted: (2) Nothing in sub‑clause (a) of clause (1) of this article shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to libel, slander, defamation or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.\ The motion was adopted. Mister Vice‑President: Amendment No. 453 as modified by Amendment No. 86 of List IV. It was accepted by Doctor Ambedkar., The question is: \That after clause (1) of article 13, the following new clause be inserted: (1‑A) Nothing in sub‑clause (a) shall affect the operation of any existing law or prevent any State from making any law relating to sedition or conspiracy.\ The amendment was negatived. Mister Vice‑President: Amendment No. 449., The question is: \That clauses (2), (3), (4), (5) and (6) of article 13 be deleted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 450., The question is: \That the following words be inserted at the beginning of clauses (2), (3), (4), (5) and (6) of article 13: Without prejudice and subject to the provisions of article 8.\ The amendment was negatived. Mister Vice‑President: Amendment No. 451., The question is: \That clauses (2), (3), (4), (5) and (6) of article 13 be deleted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 452., The question is: \That in clause (2) of article 13, after the word 'sedition' the words 'communal passion' be inserted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 458., The question is: \That clauses (3) and (4) of article 13 be deleted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 465., The question is: \That clause (5) of article 13 be deleted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 478., The question is: \That with reference to amendment No. 454 of the List of Amendments (i) in clauses (3), (4), (5) and (6) of article 13, after the words 'any existing law' the words 'in so far it imposes' be inserted, and (ii) in clause (6) of article 13, after the words 'in particular' the words 'nothing in the said clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law' be inserted.\ The motion was adopted. Doctor Ambedkar accepted. The question is: \That in clauses (2), (3), (4), (5) and (6) of article 13, the words 'affect the operation of any existing law, or' be deleted.\ The question is: \That in clauses (3), (4), (5) and (6) of article 13, before the word 'restrictions' the word 'reasonable' be inserted.\ The amendment was adopted., The question is: \That in clause (5) of article 13, the word 'affect the operation of any existing law, or' be deleted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 485., The question is: \That in clause (3) of article 13, after the word 'restrictions' the words 'for a defined period' be added.\ The amendment was negatived. The 'Ayes' have it. The amendment was moved again by Mister Syamanandan Sahaya and negatived. The question is: \That in clause (4) of article 13, after the word 'restrictions' the words 'for a defined period' be added.\ The amendment was negatived. Mister Vice‑President: Amendment No. 474., The question is: \That in clause (4) of article 13, for the words 'the general public' the words 'public order or morality' be substituted.\ The amendment was adopted. Mister Vice‑President: Amendment No. 476., The question is: \That in clause (5) of article 13, after the words 'existing law' the words 'which is not repugnant to the spirit of the provisions of article 8' be inserted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 483., The question is: \That in clause (5) of article 13, for the word 'State' the word 'Parliament' be substituted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 485 (second part)., The question is: \That in clause (5) of article 13, the word 'either' and the words 'or for the protection of the interests of any aboriginal tribe' be omitted.\ The amendment was negatived. Mister Vice‑President: Amendment No. 489., The question is: \That in clause (5) of article 13, for the word 'aboriginal' the word 'Scheduled' be substituted.\ The amendment was adopted. Mister Vice‑President: Amendment No. 491., The question is: \That in clause (6) of article 13, for the words 'morality or health' the words 'the general public' be substituted.\ The amendment was adopted. Mister Vice‑President: Amendment No. 497., The question is: \That after clause (6) of article 13, the following new clause be added: (7) The occupation of beggary in any form or shape for a person having sound physique and perfect health whether major or minor is totally banned and any such practice shall be punishable in accordance with law.\ The amendment was negatived. Mister Vice‑President: Amendment No. 500., Article 13, as amended, was adopted and forms part of the Constitution., Article 14: The question is: \That article 14 form part of the Constitution.\ Amendment No. 504 was not moved. Shri H. V. Kamath raised the point about amendment No. 505, which was disallowed as verbal. Amendment No. 506 may be moved. The Assembly adjourned till ten o’clock on Friday, 3 December 1948., Pandit Thakur Dass Bhargava moved amendment No. 505, stating it is not merely verbal but of substance. He proposed: \That in clause (1) of article 14, after the words 'greater than', the words 'or of a kind other than' be inserted.\ He explained that the amendment limits courts to the kind of punishment prescribed by law, preventing substitution of a different kind of punishment such as imprisonment for a fine., Pandit Thakur Dass Bhargava also moved: \That in clause (1) of article 14, for the words 'under the law at the time of the commission' the words 'under the law in force at the time of the commission' be substituted.\ He argued that the expression 'law in force' has a distinct meaning under article 307 and should be used for consistency., Amendment Nos. 507, 508 and 511 were of the same import; the most comprehensive, No. 507, may be moved. Amendments Nos. 509 and 510 are of similar import and may be moved together. They are in the name of Mister Naziruddin Ahmad., Mister Naziruddin Ahmad moved: \That at the end of clause (2) of article 14, the words 'otherwise than as permitted by the Code of Criminal Procedure, 1898' be added.\ He expressed anxiety about time limits and possible opposition, and explained that clause (2) – \No person shall be punished for the same offence more than once\ – has loopholes in criminal law, citing section 403 of the Code of Criminal Procedure., Shri T. T. Krishnamachari raised a point of order, questioning whether an amendment referring to an enactment is out of order. Mister Naziruddin Ahmad responded that reference to existing laws is permissible for consideration and not binding on the Assembly., Mister Naziruddin Ahmad further argued that the principle of double punishment is not comprehensive. He cited section 403, sub‑section (1): \A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence.\ He emphasized that both conviction and acquittal should be final, and that the amendment could prevent necessary retrials when a court lacks jurisdiction., Mister Vice‑President noted that 9.30 a.m. was too early for many Members and announced that from the following day the Assembly would start at 10 a.m. and break up at 1.30 p.m. The Assembly adjourned till ten o’clock on Friday, 3 December 1948., In exercise of the powers conferred by sub‑section (1) of section 22 of the Cable Television Networks (Regulation) Ordinance, 1994 (Ordinance No. 9 of 1994), the Central Government makes the following Rules: (1) Short title and commencement – These rules may be called the Cable Television Networks Rules, 1994 and shall come into force on the date of their publication in the Official Gazette., Definitions: Authority means the Telecom Regulatory Authority of India established under sub‑section (1) of section 3 of the Telecom Regulatory Authority of India Act; Broadcaster means any person including an individual, group of persons, public or body corporate, firm or any organization or body providing programming services and includes his/her authorized distribution agencies; Cable Operator means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of cable television networks; cable service means the transmission by cables of programmes including retransmission by cables of any broadcast television signals; cable television network means any system consisting of a set of closed transmission paths and associated signals generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers; company means a company defined in section 3 of the Companies Act, 1956; form means form appended to these rules; Multi‑System Operator (MSO) means a cable operator who receives a programming service from a broadcaster and/or his authorized agencies and re‑transmits the same or transmits his own programming service for simultaneous reception either by multiple subscribers directly or through one or more local cable operators (LCOs), and includes his authorized distribution agencies by whatever name called; Notified area means any area notified by the Central Government under section 4(A) of the Act; person means (i) an individual who is a citizen of India; (ii) an association of individuals or body of individuals, whether incorporated or not, whose members are citizens of India; (iii) a company in which not less than fifty‑one percent of the paid‑up share capital is held by the citizens of India; programme means any television broadcast and includes exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette players; audio or visual live performance or presentation; the expression programming service shall be construed accordingly; registering authority means the registering authority notified under clause (h) of section 2 of the Cable Television Networks (Regulation) Ordinance, 1994; subscriber means a person who receives the signal of a cable television network at a place indicated by him to the cable operator, without further transmitting it to any other person., Application for registration as a cable television network in India: (1) Every application shall be made in writing in Form I and shall be renewable after every twelve months. (2) The application shall be addressed to the Registering Authority and delivered to his office in Form I. (3) (a) Every application for registration or renewal shall be accompanied by (i) a fee of rupees five hundred only; and (ii) the requisite documents mentioned in Form I and Form II. (b) Every application for issue of duplicate certificate of registration shall be accompanied by (i) a fee of rupees two hundred and fifty only; and (ii) the requisite documents mentioned in Form I., Examination of applications: On receipt of an application under rule 3, the Registering Authority shall examine the application having regard to the provisions of section 4 of the Ordinance., Registration: On being satisfied that the applicant fulfills the provisions of the Ordinance, the Registering Authority shall issue a registration certificate in Form 3, provided that where the Registering Authority is satisfied that registration cannot be granted, he shall inform the applicant in Form 4. On receipt of an application for issue of a duplicate certificate, the Registering Authority shall examine the application having regard to the provisions of rule 3 and shall issue a duplicate Registration Certificate in Form 3A., Programme Code: (1) No programme should be carried in the cable service which (a) offends against good taste or decency; (b) contains criticism of friendly countries; (c) contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes; (d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half‑truths; (e) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti‑national attitudes; (f) contains anything amounting to contempt of court; (g) contains aspersions against the integrity of the President and Judiciary; (h) contains anything affecting the integrity of the Nation; (i) criticises, maligns or slanders any individual or certain groups, segments of social, public and moral life of the country; (j) encourages superstition or blind belief; (k) denigrates women through depiction in any manner that is indecent, derogatory or likely to deprave public morality; (l) denigrates children; (m) contains visuals or words reflecting a slandering, ironical and snobbish attitude towards certain ethnic, linguistic and regional groups; (n) contravenes the provisions of the Cinematograph Act, 1952; (o) is not suitable for unrestricted public exhibition. Provided that no film, film song, film promo, film trailer, music video or music album, whether produced in India or abroad, shall be carried through cable service unless it has been certified by the Central Board of Film Certification as suitable for unrestricted public exhibition in India. Explanation: For the purpose of this clause, the expression 'unrestricted public exhibition' shall have the same meaning as assigned to it in the Cinematograph Act, 1952., Additional provisions: (2) The cable operator should strive to carry programmes that project women in a positive, leadership role of sobriety, moral and character‑building qualities. (3) No cable operator shall carry or include in his cable service any programme in respect of which copyright subsists under the Copyright Act, 1972 unless he has been granted a licence by the owners of the copyright under the Act.
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Care should be taken to ensure that programmes meant for children do not contain any bad language or explicit scenes of violence. Programmes unsuitable for children must not be carried in the cable service at times when the largest numbers of children are viewing. No cable operator shall carry or include in his cable service any television broadcast or channel which has not been registered by the Central Government for being viewed within the territory of India, provided that a cable operator may continue to carry or include in his cable service any television broadcast or channel whose application for registration to the Central Government was made on or before 11 May 2006 and is under consideration for a period up to 31 May 2008 or till such registration has been granted or refused, whichever is earlier, provided further that channels uplinking from India in accordance with permission for uplinking granted before 2 December 2005 shall be treated as registered television channels and can be carried or included in the cable service., Advertising carried in the cable service shall be designed to conform to the laws of the country and should not offend morality, decency, or religious susceptibilities of the subscribers. No advertisement shall be permitted which (i) derides any race, caste, colour, creed or nationality; (ii) is against any provision of the Constitution of India; (iii) tends to incite people to crime, cause disorder or violence, or breach of law or glorifies violence or obscenity in any way; (iv) presents criminality as desirable; (v) exploits the national emblem, any part of the Constitution, or the person or personality of a national leader or a State dignitary; (vi) in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall project a derogatory image of women. Women must not be portrayed in a manner that emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form in programmes carried in his cable service is tasteful, aesthetic, and within well‑established norms of good taste and decency; (vii) exploits social evils such as dowry or child marriage; (viii) promotes directly or indirectly the production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants., Provided that a product that uses a brand name or logo also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants may be advertised on cable services subject to the following conditions: (i) the storyboard or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner; (ii) the advertisement must not make any direct or indirect reference to prohibited products; (iii) the advertisement must not contain any nuances or phrases promoting prohibited products; (iv) the advertisement must not use particular colours, layout or presentations associated with prohibited products; (v) the advertisement must not use situations typical for promotion of prohibited products when advertising the other product. Provided further that (i) the advertiser shall submit an application with a copy of the proposed advertisement along with a certificate by a registered Chartered Accountant that the product carrying the same name as cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants is distributed in reasonable quantity and is available in a substantial number of outlets where other products of the same category are available, and the proposed expenditure on such advertising shall not be disproportionate to the actual sales turnover of the product; (ii) all such advertisements found to be genuine brand extensions by the Ministry of Information and Broadcasting shall be previewed and certified by the Central Board of Film Certification as suitable for unrestricted public exhibition and are in accordance with the provisions contained in sub‑clause (i) to (v) of the first proviso, prior to their telecast, transmission or retransmission., Advertisements for infant milk substitutes, feeding bottles or infant food shall be prohibited. No advertisement whose objects are wholly or mainly of a religious or political nature shall be permitted; advertisements must not be directed towards any religious or political end. No advertisement shall contain references which hurt religious sentiments. The goods or services advertised shall not suffer from any defect or deficiency as mentioned in the Consumer Protection Act, 1986. No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has special, miraculous or supernatural properties that are difficult to prove. The picture and audible matter of the advertisement shall not be excessively loud. No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices, or shows them begging or in an undignified or indecent manner shall be carried in the cable service. Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements. No advertisement which violates the Code for self‑regulation in advertising, as adopted by the Advertising Standards Council of India (ASCI), Mumbai for public exhibition in India, from time to time, shall be carried in the cable service. All advertisements should be clearly distinguishable from the programme and should not in any manner interfere with the programme, for example by using the lower part of the screen to carry captions, static or moving alongside the programme. No programme shall carry advertisements exceeding twelve minutes per hour, which may include up to ten minutes per hour of commercial advertisements and up to two minutes per hour of a channel’s self‑promotional programmes., Each cable operator shall maintain a register in Form 5 for each month of the year for which the registration is granted., The Authority may, on issue of any notification under section 4A of the Act by the Central Government, take appropriate decisions and duly notify the following: (a) standard interconnection agreement to be used for entering into commercial agreements for distribution in the notified areas of pay or free‑to‑air channels among broadcasters and multi‑system operators, and among multi‑system operators and local cable operators; (b) the maximum limits of security deposit and monthly rental for supply, maintenance and servicing of set‑top boxes of prescribed specifications to subscribers on rental basis by multi‑system operators in the notified areas; (c) tariff for the basic service tier along with the minimum number of free‑to‑air channels to be provided by the multi‑system operators to subscribers in the notified areas; (d) regulations for quality of service to be provided by the multi‑system operators or local cable operators to subscribers in the notified areas., Every broadcaster shall declare the nature of each of its channels as pay or free‑to‑air as well as the maximum retail price of each of its pay channels to be charged by the multi‑system operators or local cable operators from the subscribers in each of the notified areas. Every broadcaster shall file its declaration of the nature and prices of channels with the Authority and the Central Government within fifteen days of the date of notification by the Central Government under section 4A of the Act. If, in the opinion of the Authority, the price declared by the broadcaster for any of its pay channels is too high, the Authority may, under section 11 of the Telecom Regulatory Authority of India Act, 1997, fix and declare the maximum retail price of such a pay channel or fix a general maximum retail price for all pay channels within which the broadcasters may declare their individual prices for each pay channel, to be paid by the subscribers in any of the notified areas, and such order shall be binding on the broadcasters and the multi‑system operators and local cable operators. Every broadcaster shall enter into interconnection agreements with multi‑system operators in the notified areas as per the standard interconnection agreement, or with any mutually agreed modifications on a non‑discriminatory basis, as per the regulations or directions or orders of the Authority. If a broadcaster fails to declare the price of any of its pay channels within the prescribed time limit, refuses or fails to comply with the direction, or refuses or fails to enter into an interconnection agreement with a multi‑system operator permitted by the Central Government, the Authority may, to protect the interests of the subscribers, take interim measures to ensure supply of signals. In the event of non‑compliance by the broadcaster of the directions issued by the Authority, the Central Government may, on the recommendations of the Authority, suspend the permission granted to the broadcaster under uplinking or downlinking guidelines as the case may be, to broadcast that channel in the country or any part thereof. Every declaration filed by the broadcaster or the maximum retail price fixed by the Authority shall normally remain valid for a period of one year from the date of such declaration or fixation, subject to the condition that every broadcaster may revise the price of any channel or convert a pay channel to free‑to‑air or a free‑to‑air channel to a pay channel by giving one month’s notice to the multi‑system operator and subscribers, provided that no increase in price beyond the individual limit specified by the Authority shall be valid without prior approval of the Authority, and no such price increase shall be valid beyond the general maximum retail price for all channels fixed by the Authority., No multi‑system operator shall provide cable television network services with addressable systems in any notified area without a valid permission from the Central Government under sub‑rule 3 of rule 2. Every multi‑system operator who desires to provide cable television network services with addressable systems in any of the notified areas shall, within thirty days of the issue of the notifications under section 4A of the Act by the Central Government, apply for permission to the Ministry of Information and Broadcasting in Form 6 annexed to these Rules, along with a processing fee of rupees ten thousand. The Ministry of Information and Broadcasting shall, within thirty days of receipt of the application, grant or refuse permission to the applicant after considering its suitability on the basis of information regarding its existing operational area, actual number of subscribers and addresses of its local cable operators in each notified area, commercial arrangements with broadcasters and local cable operators, financial strength, management capability, security clearance and preparedness to supply and maintain an adequate number of set‑top boxes for its subscribers, installation of its subscriber management system and compliance with all other quality of service standards as may be specified by the Authority. The Central Government may lay down such terms and conditions of permission as may be deemed necessary and desirable to ensure compliance with the provisions of this Act as well as the regulations, directions and orders made by the Authority. No multi‑system operator shall continue to provide any cable television network services in the notified areas after the date notified therein, without obtaining prior permission from the Central Government. In the event of a multi‑system operator who fails or refuses to enter into an interconnection agreement with a broadcaster of a pay channel or an adequate number of local cable operators in the notified areas, or who violates the terms and conditions of the permission granted to it, the Authority may, to protect the interests of the subscribers, take interim measures to ensure supply of signals. In the event of a violation by a multi‑system operator of one or more of the terms and conditions of the permission, the Central Government may suspend or revoke such permission for such period and for such notified areas as it deems fit, provided that no such order of suspension or revocation shall be made without giving a reasonable opportunity to the multi‑system operator to explain its position., Every multi‑system operator granted permission under sub‑rule 3 of Rule 11 shall create public awareness among the subscribers in the notified areas for a period of thirty days from the date to be specified by the Authority, either through advertisements in print and electronic media or through other means such as leaflets, printing on the reverse of receipts, personal visits, group meetings with subscribers or consumer groups, highlighting the salient features of the Conditional Access System scheme as approved by the Authority for implementation by the multi‑system operator, in particular: (a) a la carte subscription rates and the periodic intervals at which such subscriptions are payable for receiving the various pay channels; (b) the refundable security deposit and the daily or monthly rental payable for the set‑top box and its detailed specifications such as make, model, technical specifications, user manuals and maintenance centres; (c) the number and names of free‑to‑air channels that the multi‑system operator will provide to the subscribers and specific placement of each channel in the prime or non‑prime bands; (d) the prescribed monthly service charge to be paid by each subscriber for receiving the basic service tier fixed by the Authority and the number of additional free‑to‑air channels, if any, offered by the multi‑system operator; (e) the Quality of Service Standards specified by the Authority and the arrangements made by the multi‑system operator to comply with these standards; (f) the Subscriber Management System established by the multi‑system operator to demonstrate the functioning of the set‑top boxes and interact with the subscribers to explain the various financial, logistic and technical aspects of the system for its smooth implementation; (g) the existing arrangements for resolution of disputes between the multi‑system operator and local cable operators and the subscribers in respect of the quality of service standards, payments and refunds. The Authority may also arrange public awareness activities in the notified areas either directly or through authorized officers or consumer organisations., Every subscriber in the notified areas who is desirous of receiving one or more pay channels shall, during the public awareness campaign under Rule 12 or within fifteen days after its expiry, apply to any one of the multi‑system operators granted permission under sub‑rule 3 of Rule 11 either directly or through any of his linked local cable operators to supply and install one or more set‑top boxes in his premises as per the scheme approved by the Authority and deliver the requisite channels through the same; provided that every subscriber shall be free to buy a set‑top box of approved quality from the open market, if available and technically compatible with the multi‑system operator’s system, and no multi‑system operator or cable operator shall force any subscriber to buy or rent the set‑top box from him only. A subscriber who fails to apply within the prescribed period may at any time either buy a set‑top box of approved quality from the open market or apply to any one of the multi‑system operators granted permission to supply and install set‑top boxes as per the scheme approved by the Authority or use the set‑top box of approved quality acquired on his own. Every multi‑system operator shall procure, supply and install the required number of set‑top boxes of approved quality in the premises of every applicant within a period as may be determined by regulation or order of the Authority from the date of receipt of such application, and transmit the requisite pay channels through the same or through the set‑top box acquired by the applicant on his own. Every multi‑system operator shall set up and operationalise its subscriber management system within a time frame as may be determined by regulation or order of the Authority, for ensuring efficient and error‑free service to the subscribers by recording and providing individualized preferences for pay channels, billing cycles, refunds etc. In the event of the failure of any multi‑system operator to supply and install a set‑top box in the premises of one or more applicants or to operationalise the subscriber management system within the time limit, the Authority may, to protect the interests of the subscribers, take interim measures to ensure supply of signals., Every multi‑system operator shall be obliged to maintain the quality of service as per the standards, including the arrangements for handling complaints and redressal of grievances of the subscribers, as may be determined by regulation or order of the Authority. The Authority may look into the efficacy of such arrangements and issue necessary directions to the concerned parties for compliance., Immediately on operationalisation of the subscriber management system and the installation of the set‑top boxes under Rule 13, every multi‑system operator shall start transmitting the pay channels in encrypted as well as unencrypted form for a period of not less than fifteen days to test the quality of service, remove any technical or operational snags and enable the subscribers to become familiar with the operation of addressable systems at their end. Before the start of the transition period, the Authority may call for progress or compliance reports from the service providers in the forms appended to these rules, and at intervals as may be specified by it, to satisfy itself that all the multi‑system operators permitted under sub‑rule 3 of Rule 11 have completed all necessary arrangements to switch over to transmission of pay channels through addressable systems in the whole of the notified area by the date notified by the Central Government under section 4A of the Act. In the event of satisfactory completion of all arrangements, every multi‑system operator in the notified area shall start transmitting pay channels only through addressable systems from the date notified by the Central Government under section 4A of the Act. If the Authority concludes that the arrangements made by the multi‑system operators are not adequate and the switch‑over is likely to be against the interests of a substantial portion of the subscribers in any notified area, the Authority may recommend to the Central Government an extension of the notified date by such period as it considers the minimum required for satisfactory completion of the necessary arrangements. On receipt of such a recommendation and before the expiry of the notified date, the Central Government may, if satisfied that it is not in public interest to switch over on the notified date and that circumstances warrant an extension, issue another notification indicating the revised date under section 4A of the Act, provided that the power to issue notification in respect of the areas already notified by the Government of India in the Ministry of Information and Broadcasting under section 4A of the Act shall be subject to the orders and final outcome of the pending cases in the High Court of Delhi. Every multi‑system operator shall complete the remaining arrangements within such extended period and start transmitting the pay channels only through addressable systems from such revised date., Form of application for registration, renewal of registration or issue of duplicate certificate of registration as a cable operator: To the Head Postmaster, Head Post Office. 1. Name of Applicant (individual, firm, company, association of persons, body of individuals); Age/Date of establishment/Date of incorporation. 2. Address (office); Telephone number (if any). 3. Nationality (for individual applicants or body of individuals); By birth/domicile. 4. Amount of fee paid for registration/renewal/issue of duplicate certificate; Name of Head Post Office (attach copy of challan). 5. Area in which cable television network is working or proposed to be set up. 6. Date from which the cable television network is operating or proposed to be set up. 7. Number of channels being provided or proposed to be provided (with names). 8. Whether using Television Receive Only (TVRO) – Yes/No; if yes, number and size of TVRO; location. 9. Names of Doordarshan satellite channels included in cable service. 10. Copy of earlier registration certificate enclosed – Yes/No (to be filled only for renewal). 11. State reasons for issue of duplicate certificate of registration (attach mutilated or defaced original certificate or copy of police report in case of theft or loss); period of validity of the original registration certificate for which the duplicate is sought (to be filled only for issue of duplicate). 12. Declaration in Form 2 enclosed – Yes/No (to be filled only for registration or renewal). I/We the applicant(s) do hereby declare that the above facts are correct in all respects., Declaration by the applicant(s) for registration as a cable operator or renewal of registration: I/We shall ensure that my/our television network shall be run in accordance with the provisions of the Cable Television Networks (Regulation) Ordinance, 1994 at all times. I/We shall not permit or associate any person who is not eligible to run a cable television network under the Ordinance to run or be associated with the running of my/our cable television network. I/We shall strive to the best of my/our ability to provide cable service to the satisfaction of the subscribers of my/our cable television network. I/We shall strive to the best of my/our ability to ensure that my/our cable television network is not used for any unlawful purpose. I/We shall obtain the necessary approval or clearance from the relevant authority for the running of my/our cable television network. I/We shall abide by any direction issued by the Central Government in respect of the running of a cable television network within India., Certificate of registration: The holder is registered as a cable operator (individual, firm, company, association of persons or body of individuals) for running a cable television network at the specified address in the city/town for a period of twelve months with effect from the date indicated. This certificate is only valid for the premises stated above, is not transferable, and shall remain valid for the period indicated or until the holder ceases to carry on the cable service or the surrender of the certificate is accepted by the competent authority. Head Post Master, Head Post Office., To the applicant: Reference your application dated [date] for registration as a cable operator. The necessary registration cannot be granted for the following reasons: (i) application is incomplete; (ii) registration fee has not been tendered; (iii) applicant is not a citizen of India; (iv) less than fifty‑one percent of the paid‑up share capital of the applicant company is held by citizens of India., Form of register to be maintained by each cable operator: No, Encrypted channel/program, Duration, Date, Month, Year, From, To, Signature of cable operator., Application to the Secretary, Ministry of Information and Broadcasting, A‑Wing, Shastri Bhawan, New Delhi 110001. Subject: Application for grant of permission to multi‑system operators to provide cable television network services with addressable system in any or more notified areas. I hereby submit the following details for grant of permission: (a) Name of the applicant (individual, firm, company, association of persons, body of individuals); Age/Date of establishment/Date of incorporation. (b) Nationality (for individual applicants or body of individuals); By birth/domicile. (c) Details of payment of processing fee. (d) Details of registration as a cable operator: name of the post office with which registered, registration number and validity, copy of the registration certificate. (e) Complete postal address with telephone/fax number and e‑mail ID (corporate office, registered office, regional offices, address of correspondence). (f) Name of authorized contact person, his designation and telephone/fax number and e‑mail. (g) Registration details under Companies Act, 1956: incorporation number and date (attach certificate of incorporation and memorandum and articles of association). (h) Board of Directors (attach list of directors with biodata including date of birth, place of birth, parentage, nationality, permanent and residential addresses, official address, passport number, qualification, experience). (i) List of key executives including CEO/MD with details as above.
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Authorized Share Capital, Paid‑up Share Capital, Net worth (enclose a copy of the audited Balance Sheet and Profit & Loss Account for the immediate preceding year and certificate of Net Worth on the basis of these documents by a Chartered Accountant). Details of availability/arrangement of funds (sufficient proof to be enclosed). Present Area of Operation (if in more than one city, city‑wise details to be given). CAS notified Area or Areas proposed to be covered by the applicant (if in more than one city, city‑wise details should be given). Number of channels being provided in encrypted form (own/broadcasters) (give names separately for own channels and broadcasters channels). Other value added services being provided (details along with their copies of licences). Total number of each local cable operator and subscribers covered (attach list of local cable operators with their telephone numbers/fax numbers/E‑mail IDs and the number of subscribers each cable operator has). Details of past experience/field of activity. Preparedness to supply and maintain adequate number of Set Top Boxes for the subscribers and installation of subscriber management system (give details to substantiate your claim including number of Set Top Boxes already available/orders placed/network of authorised persons/agents to supply and provide after‑sales service). Number of agreements signed with broadcasters to supply their channels under CAS scheme (give names of broadcasters and their channels for which agreements are signed along with copies of agreements). Arrangements made or proposed to give wide publicity to CAS scheme in each of the notified areas, as approved by the Authority (give full details)., I/We, the applicant(s) (individual/firm/company/association of persons/body of individuals) do hereby declare that the above facts are correct in all respects. I/We hereby undertake to abide by all the conditions, directions and orders that the Central Government or the Authority may lay down or issue for the smooth implementation and operation of the CAS scheme in the notified areas. Signature of Applicant/Authorized person (individual/firm/company/association of persons/body of individuals). To be given in case applicant is a Company/Firm., Cable Television Networks (Regulation) Act, 1995 (Act 7 of 1995) [March 25, 1995]. Short title, extent and commencement. Definitions. Registering Authority: Ministry of Information and Broadcasting, Notification No. S.O. 718(E), dated September 29, 1994, published in the Gazette of India, Extra., Part II, Section 3(ii), dated 29 September 1994, p. 2, F.No. 9/7/93‑PBC Vol. II., Prefatory Note Statement of Object and Reasons. There has been a haphazard mushrooming of cable television networks all over the country during the last few years as a result of the availability of signals of foreign television networks via satellites. This has been perceived as a cultural invasion in many quarters since the programmes available on these satellite channels are predominantly western and alien to our culture and way of life. Since there is no regulation of these cable television networks, many undesirable programmes and advertisements are becoming available to the viewers without any kind of censorship. It is also felt that the subscribers of these cable television networks, the programmers and the cable operators themselves are not aware of their rights, responsibilities and obligations in respect of the quality of service, technical as well as content‑wise, use of material protected by copyright, exhibition of uncertified films, protection of subscribers from anti‑national broadcasts from sources inimical to our national interest, responsiveness to the genuine grievances of the subscribers and a perceived willingness to operate within the broad framework of the laws of the land, e.g., the Cinematograph Act, 1952, the Copyright Act, 1957, Indecent Representation of Women (Prohibition) Act, 1986. It is therefore considered necessary to regulate the operation of cable television networks in the entire country so as to bring about uniformity in their operation. It will enable the optimal exploitation of this technology which has the potential of making available to the subscribers a vast pool of information and entertainment. The Bill seeks to achieve the above objects., Chapter I. Short title, extent and commencement. (1) This Act may be called Cable Television Networks (Regulation) Act, 1995. (2) It extends to the whole of India. (3) It shall be deemed to have come into force on the 29th day of September., Definitions. In this Act, unless the context otherwise requires: (a) authorised officer means, within his local limits of jurisdiction, a District Magistrate, a Sub‑divisional Magistrate, a Commissioner of Police, and includes any other officer notified in the Official Gazette by the Central Government or the State Government to be an authorised officer for such local limits of jurisdiction. (a‑i) Authority means the Telecom Regulatory Authority of India established under sub‑section (1) of Section 3 of the Telecom Regulatory Authority of India Act, 1997. (a‑ii) Broadcaster means a person or a group of persons, or body corporate, or any organisation providing programming services and includes its authorised distribution agencies. (a‑iii) Cable operator means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television network and fulfils the prescribed eligibility criteria and conditions. (b) Cable service means the transmission by cables of programmes including retransmission by cables of any broadcast television signals. (c) Cable television network means any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers. (d) Company means a company as defined in Section 3 of the Companies Act, 1956. (e) Person means an individual who is a citizen of India; an association of individuals or body of individuals, whether incorporated or not, whose members are citizens of India; or a company as defined in Section 3 of the Companies Act, 1956. (e‑i) Post means a post and includes a pole, tower, standard, stay, strut, cabinet, pillar or any above‑ground contrivance for carrying, suspending or supporting any network infrastructure facility. (f) Prescribed means prescribed by rules made under this Act. (g) Programme means any television broadcast and includes exhibition of films, features, dramas, advertisements and serials; any audio or visual or audio‑visual live performance or presentation. (g‑i) Public authority means any authority, body or institution of local self‑government constituted or established by or under the Constitution of India, any law made by Parliament, any law made by a State Legislature, any notification issued or order made by the appropriate Government, and includes any body owned, controlled or substantially financed, or any non‑governmental organisation substantially financed, directly or indirectly, by funds provided by the appropriate Government. (h) Registering authority means such authority as the Central Government may, by notification in the Official Gazette, specify to perform the functions of the registering authority under this Act. (i) Subscriber means any individual, or association of individuals, or a company, or any other organisation or body who receives the signals of a cable television network at a place indicated by him or it to the cable operator, without further transmitting it to any other person., Registration as cable operator. (1) Any person who is desirous of operating or is operating a cable television network may apply for registration or renewal of registration as a cable operator to the registering authority. (2) The cable operator shall fulfil such eligibility criteria and conditions as may be prescribed, and different eligibility criteria may be prescribed for different categories of cable operators. (3) From the date of issue of notification under Section 4‑A, no new registration in a State, city, town or area notified under that section shall be granted to any cable operator who does not undertake to transmit or retransmit channels in an encrypted form through a digital addressable system. (4) An application shall be made in the prescribed form and be accompanied by the prescribed documents and fees. (5) On receipt of the application, the registering authority shall verify that the applicant has furnished all required information and, if satisfied, register the applicant as a cable operator and grant a certificate of registration or renew its registration, subject to such terms and conditions as may be prescribed. The authority may refuse registration or renewal if the applicant does not fulfil the eligibility criteria or the application is not accompanied by necessary documents or fees, recording reasons in writing. The applicant may prefer an appeal against such refusal to the Central Government. (6) Without prejudice to the eligibility criteria, the Central Government may prescribe, having regard to the sovereignty and integrity of India, security of the State, public order, decency or morality, foreign relations, contempt of court, defamation or incitement to an offence, such terms and conditions of registration including additional criteria or conditions to be fulfilled by the cable operator. (7) The Central Government may suspend or revoke the registration if the cable operator violates any of the terms and conditions, provided that no such order shall be made without giving a reasonable opportunity of being heard to the cable operator., Transmission of programmes through digital addressable systems. (1) Where the Central Government is satisfied that it is necessary in the public interest, it may, by notification in the Official Gazette, make it obligatory for every cable operator to transmit or retransmit programmes of any channel in an encrypted form through a digital addressable system, with effect from a date specified in the notification. Different dates may be specified for different States, cities, towns or areas. The date shall not be earlier than six months from the date of issue of the notification to enable cable operators to install the required equipment. (2) The Central Government may prescribe appropriate measures and steps necessary for implementation of the notification. (3) If the Central Government is satisfied that it is necessary in the public interest, and if not otherwise specified by the Authority, it may direct the Authority to specify, by notification, one or more free‑to‑air channels to be included in the basic service tier and may fix the tariff for the basic service tier, which shall be offered by cable operators to consumers, who shall have the option to subscribe to any such tier. The cable operator shall also offer the channels in the basic service tier on a à la carte basis at the specified tariff. (4) The Central Government or the Authority may specify in the notification the number of free‑to‑air channels to be included in the basic service tier, which may vary for different States, cities, towns or areas. (5) Every cable operator shall publicise the prescribed information, including subscription rates, standards of quality of service and mechanism for redressal of subscribers’ grievances, at intervals specified by the Central Government or the Authority. (6) The cable operator shall not require any subscriber to have a receiver set of a particular type; however, the subscriber shall use a digital addressable system attached to his receiver set for receiving programmes transmitted on any channel. (7) Every cable operator shall provide information relating to its cable services and networks in the prescribed format and at the prescribed intervals to the Central Government, State Governments or the Authority or their authorised representatives. (8) All actions taken by the Central Government or the Authority in pursuance of the provisions of this section as they stood immediately before 25 October 2011 shall continue to remain in force until modified as per the provisions of this Act., Right of way for cable operators and permission by public authority. (1) Subject to the provisions of this Act, any cable operator entitled to provide cable services may lay and establish cables and erect posts on any immovable property vested in or under the control or management of a public authority. (2) Any public authority may, on receipt of a request from a cable operator, permit the cable operator to place and maintain underground cables or posts and to enter the property to place, examine, repair, alter or remove such cables or posts. (3) The right of way for laying underground cables and erecting posts shall be available to all cable operators subject to the obligation of reinstatement or restoration of the property or payment of reinstatement charges at the option of the public authority. (4) When a public authority, in public interest, considers it necessary to remove, shift or alter the position of an underground cable or post placed by a cable operator, it may require the cable operator to do so at its own cost within the time frame indicated. (5) The Central Government may lay down guidelines to enable State Governments to establish a mechanism for speedy clearance of requests from cable operators for laying cables or erecting posts on property vested in or under the control of a public authority and for settlement of disputes, including refusal of permission. (6) Any permission granted by a public authority may be subject to reasonable conditions as to payment of expenses, time or mode of execution of work, or any other matter connected with the work undertaken by the cable operator. (7) Nothing in this section shall confer any right upon any cable operator other than that of a user for the purpose of laying underground cable or erecting posts or maintaining them., Programme code. No person shall transmit or retransmit through a cable service any programme unless such programme conforms to the prescribed programme code. Advertisement code. No person shall transmit or retransmit through a cable service any advertisement unless such advertisement conforms to the prescribed advertisement code., Maintenance of register. Every cable operator shall maintain a register in the prescribed form indicating, in brief, the programmes transmitted or retransmitted through the cable service during a month. The register shall be maintained for a period of one year after the actual transmission or retransmission of the programmes., Compulsory transmission of certain channels. (1) The Central Government may, by notification in the Official Gazette, specify the names of Doordarshan channels or channels operated by or on behalf of Parliament to be mandatorily carried by cable operators in their cable service and the manner of reception and retransmission of such channels. In areas where a digital addressable system has not been introduced, the notification shall be limited to the carriage of two Doordarshan terrestrial channels and one regional language channel of the State in which the network is located. (2) The specified channels shall be retransmitted without any deletion or alteration of any programme. (3) Any notification issued by the Central Government or Prasar Bharati prior to 25 October 2011 shall continue to remain in force until rescinded or amended., Use of standard equipment in cable television network. No cable operator shall, on and from the expiry of three years from the date of establishment and publication of the Indian Standard by the Bureau of Indian Standards, use any equipment or digital addressable system in his cable television network unless such equipment conforms to the said Indian Standard., Cable television network not to interfere with any telecommunication system. Every cable operator shall ensure that the cable television network being operated does not interfere in any way with the functioning of authorised telecommunication systems and is in conformity with standards relating to interference as may be prescribed by the Central Government., Inspection of cable network and services. (1) Without prejudice to the provisions of the Indian Telegraph Act, 1885 or any other law, the Central Government or its authorised officers or agency shall have the right to inspect the cable network and services. (2) No prior permission or intimation shall be required to exercise this right. (3) Inspection shall ordinarily be carried out after reasonable notice except where giving notice would defeat the purpose of the inspection. (4) Upon direction by the Central Government or its authorised officers, the cable operator shall provide the necessary equipment, services and facilities at designated places for lawful interception or continuous monitoring of the cable service at its own cost under the supervision of the Central Government or its authorised officers., Power to seize equipment used for operating cable television network. If any authorised officer has reason to believe that the provisions of Sections 3, 4‑A, 5, 6, 8, 9 or 10 have been or are being contravened by any cable operator, he may seize the equipment being used by such cable operator for operating the cable television network. The seizure of equipment in case of contravention of Sections 5 and 6 shall be limited to the programming service provided on the channel generated at the level of the cable operator., Confiscation. The equipment seized under Section 11 shall be liable to confiscation unless the cable operator from whom the equipment has been seized registers himself as a cable operator under Section 4 within thirty days from the date of seizure., Seizure or confiscation of equipment shall not prevent the infliction of any punishment to which the person affected is liable under the provisions of this Act., Giving of opportunity to the cable operator of seized equipment. (1) No order adjudicating confiscation shall be made unless the cable operator has been given a written notice informing him of the grounds on which confiscation is proposed and giving him a reasonable opportunity to make a written representation within the time specified in the notice. If no such notice is given within ten days from the date of seizure, the equipment shall be returned after the expiry of that period. (2) Except as provided in sub‑section (1), the provisions of the Code of Civil Procedure, 1908 shall apply to every proceeding referred to in sub‑section (1)., Appeal. (1) Any person aggrieved by any decision of the High Court adjudicating a confiscation of the equipment may prefer an appeal to the court to which an appeal lies from the decision of such court. (2) The appellate court may, after giving the appellant an opportunity of being heard, pass such order as it thinks fit, confirming, modifying or revising the decision appealed against, or may remit the case with directions for a fresh decision or adjudication, after taking additional evidence if necessary. (3) No further appeal shall lie against the order of the court made under sub‑section (2)., Punishment for contravention of provisions of this Act. (1) Whoever contravenes any provision of this Act shall be punishable: (a) for the first offence, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both; (b) for every subsequent offence, with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the contravention of Section 4‑A shall be a cognizable offence., Offences by companies. (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of and responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed guilty of the offence and shall be liable to be proceeded against and punished accordingly, provided that such person shall not be liable if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
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Notwithstanding anything contained in sub‑section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purposes of this section, (a) company means any body corporate and includes a firm or other association of individuals; and (b) director in relation to a firm means a partner in the firm., Cognizance of offences: No Supreme Court of India shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by any authorised officer., Power to prohibit transmission of certain programmes in public interest: Where an authorised officer thinks it necessary or expedient to do so in the public interest, he may by order prohibit any cable operator from transmitting or retransmitting any programme or channel that is not in conformity with the prescribed programme code referred to in Section 5 and advertisement code referred to in Section 6, or that is likely to promote, on grounds of religion, race, language, caste or community or any other ground, disharmony or feelings of enmity, hatred or ill‑will between different religious, racial, linguistic or regional groups or castes or communities, or that is likely to disturb public tranquillity., Power to prohibit operation of cable television network in public interest: (1) Where the Central Government thinks it necessary or expedient to do so in the public interest, it may prohibit the operation of any cable television network in such areas as may be specified by notification in the Official Gazette. (2) Where the Central Government thinks it necessary or expedient to do so in the interest of the sovereignty or integrity of India, security of India, friendly relations of India with any foreign State, or public order, decency or morality, it may by order regulate or prohibit the transmission or retransmission of any channel or programme. (3) Where the Central Government considers that any programme of any channel is not in conformity with the prescribed programme code referred to in Section 5 or the prescribed advertisement code referred to in Section 6, it may by order regulate or prohibit the transmission or retransmission of such programme., Application of other laws not barred: The provisions of this Act shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940, the Pharmacy Act, 1948, the Emblems and Names (Prevention of Improper Use) Act, 1950, the Drugs (Control) Act, 1950, the Cinematograph Act, 1952, the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, the Prevention of Food Adulteration Act, 1954, the Prize Competitions Act, 1955, the Copyright Act, 1957, the Trade and Merchandise Marks Act, 1958, the Indecent Representation of Women (Prohibition) Act, 1986, the Consumer Protection Act, 1986 and the Telecom Regulatory Authority of India Act, 1997., Power to make rules: (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely: the eligibility criteria for different categories of cable operators under subsection (2) of Section 4; the form of application, documents to be accompanied and the fees payable under subsection (4) of Section 4; the terms and conditions of registration under subsection (6) of Section 4; the appropriate measures under subsection (2) of Section 4‑A for implementation of the notification under subsection (1) of that section; the programme code under Section 5; the advertisement code under Section 6; the form of register to be maintained by a cable operator under Section 7; the specifications of interference standards for interfering with any telecommunication system under Section 10; and any other matter which is required to be, or may be, prescribed. (3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; however, any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule., Repeal and savings: (1) The Cable Television Networks (Regulation) Ordinance, 1995 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provision of this Act. Received the assent of the President on March 25, 1995., The phenomenon of paid news has acquired serious dimensions. Today it goes beyond the corruption of individual journalists and media companies and has become pervasive, structured and highly organized. In the process, it is undermining democracy in India. This has anguished the leading sections of the society, including political leaders, thinkers, journalists and media owners. They have expressed unhappiness and concern about the pernicious influence of such malpractices. Several veteran journalists, including the late Shri Prabhash Joshi, Shri Ajit Bhattacharjea, Shri B.G. Verghese and Shri Kuldip Nayar, wanted the Press Council of India to examine the issue and suggest ways to curb the phenomenon of paid news., Paid news is a complex phenomenon that has taken many forms over the last six decades. It ranges from accepting gifts on various occasions, foreign and domestic junkets, monetary and non‑monetary benefits, to direct payment of money. Another form is private treaties between media companies and corporate entities, where shares are transferred in lieu of advertisement space and favourable coverage. The practice has become deeply rooted and has spread rapidly after the 2009 elections, prompting the Press Council to focus on paid news observed during the last Lok Sabha elections., Election‑time paid news has three dimensions. First, the reader or viewer does not receive a correct picture of a candidate’s personality or performance, which destroys the essence of democracy. Second, contesting candidates may not disclose such payments in their election expense accounts, violating the Conduct of Election Rules, 1961 framed under the Representation of the People Act, 1951. Third, newspapers and television channels that receive cash payments but do not disclose them have violated the Companies Act, 1956 and the Income Tax Act, 1961, among other laws. The payment and receipt of election‑time paid news is a clandestine operation involving advertising agencies, public relations firms, politicians, journalists, managers and owners of some media companies, making it difficult to obtain clinching evidence of responsibility., The observations of persons interacting with the Sub‑Committee indicate that election‑time paid news deals are made between candidates or political parties (or their agents) and media. It was felt that a clear distinction should be drawn between management and editorial staff in media companies and that the independence of the editor should be maintained and safeguarded., The Press Council of India was set up by Parliament as a statutory, quasi‑judicial body to preserve the freedom of the press and to maintain and improve the standards of newspapers and news agencies in India. However, it has only limited powers to admonish, reprimand and pass strictures and cannot penalise errant persons or entities. Its mandate does not extend beyond the print medium. A proposal to amend Section 15(4) of the Press Council Act, 1978, to make the directions of the Council binding has been pending for a long time and should be taken up on a priority basis., The Union and state elections are regulated by the Representation of the People Act, 1951, whose main purpose is to ensure free and fair elections. Since election‑time paid news undermines free and fair elections, Section 123 of the Representation of the People Act, 1951, should be amended to declare any payment for the publication of news as a corrupt practice or electoral malpractice and make it a punishable offence., The Press Council of India should constitute a body of media professionals with wide representation at the national, state and district levels to investigate instances of paid news, either suo moto or on receipt of complaints. The recommendations of such a body, after an appellate mechanism, should be binding on the Election Commission of India and other government authorities. The Council’s guidelines that news should be clearly demarcated from advertisements by printing disclaimers must be strictly enforced by all publications. News must always carry a credit line and be set in a typeface that distinguishes it from advertisements., General guidelines for the media during elections: (1) The press must give objective reports about elections and candidates and must not indulge in unhealthy election campaigns, exaggerated reports or attacks on opponents. (2) Election campaigns on communal or caste lines are banned; the press should eschew reports that promote feelings of enmity or hatred on the basis of religion, race, caste, community or language. (3) The press shall not publish false or unverified statements about the personal character or conduct of any candidate. (4) The press shall not accept any inducement, financial or otherwise, to project a candidate or party, nor accept hospitality offered by or on behalf of any candidate or party. (5) The press shall not canvass for any particular candidate or party; if it does, it must allow the right of reply to the other candidate or party. (6) The press shall not publish any advertisement at the cost of the public exchequer regarding achievements of a party or government in power. (7) The press shall observe all directions, orders and instructions of the Election Commission, Returning Officers or Chief Electoral Officer issued from time to time., Guidelines on pre‑poll and exit‑poll surveys (1996): Newspapers should not allow their forum to be used for distortions and manipulations of elections. When publishing pre‑poll surveys, they must conspicuously indicate the institutions that carried out the surveys, the individuals or organisations that commissioned them, the size and nature of the sample, the method of selection and the possible margin of error. In the event of staggered poll dates, media should not publish exit‑poll surveys until the last poll is held, to ensure that the electoral process remains pure and voters are not influenced by external factors., The Election Commission of India should set up a special cell to receive complaints about paid news in the run‑up to elections and initiate expeditious action on such complaints. It should nominate independent journalists or citizens, in consultation with the Press Council of India, to accompany election observers deputed by the Commission to various states and districts. These nominated journalists or citizens could report instances of paid news to the Press Council and the Election Commission., Self‑regulation is the best option to check the paid news phenomenon, but it offers only partial solutions because offenders may refuse to abide by voluntary codes of conduct and ethical norms that are not legally mandated. A debate should be held among all stakeholders on whether the Supreme Court of India directive that enjoins television channels to stop broadcasting campaign‑related information on candidates and political parties 48 hours before elections should be extended to the print medium, as the restriction does not currently apply to this section of the media., Education: The Council suggests that efforts should be made to educate voters to differentiate between doctored reporting and balanced reporting. This can be done by the Ministry of Information and Broadcasting with the help of the Press Council of India and various journalists’ associations and newspaper owners. Local press clubs should conduct seminars and workshops in different cities to educate readers and viewers. The Press Council, representatives of political parties, newspaper owners, television broadcasters and journalists’ unions can provide resource persons for such seminars and workshops. The process of educating voters should begin before elections, soon after the dates of elections are announced., The Union Ministry of Information and Broadcasting should conduct national conferences, workshops, seminars and awareness‑generating campaigns involving the Press Council of India, the Election Commission of India, editors, journalists’ associations and unions, political parties and media owners to deliberate on the issue and arrive at workable solutions to curb the paid news phenomenon. The Union I&B Minister should hold separate meetings with national associations of newspaper owners, editors and journalists to discuss the phenomenon and how it should be curbed. A meeting of all political parties should also be organised to make them understand that if paid news is not checked no political party would benefit. Media owners should be made to understand that money illegally obtained for paid news is not only myopic but would eventually lead to loss of credibility among readers and viewers, which would be detrimental to the interests of the media., Parliament: A small committee of Members of Parliament from both Houses should hold a hearing to suggest changes in the Representation of the People Act, 1951, to prevent the practice of paying for news coverage in newspapers and television channels, declare it as an electoral malpractice or act of corruption and make it a punishable offence., Recommendations: (1) Amend the Representation of the People Act, 1951 to make the incidence of paid news a punishable electoral malpractice. (2) Empower the Press Council of India fully to adjudicate complaints of paid news and give final judgement. (3) Amend the Press Council Act to make its recommendations binding and bring electronic media under its purview. (4) Reconstitute the Press Council of India to include representatives from electronic and other media., The Council decided that the report of the Sub‑Committee may remain on the record of the Council as a reference document. It also decided that the issue of strengthening the Working Journalists Act be taken up separately.
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Various journalists associations, including the Andhra Pradesh Union of Working Journalists and the Delhi Union of Journalists have examined the phenomenon, conducted surveys and organized discussions on the topic. The Editors Guild of India also discussed the phenomenon and expressed concern at this growing tendency. On June 8, 2010, the Election Commission of India issued detailed guidelines to Chief Electoral Officers of all states and Union territories on measures to check paid news before elections, that is, advertising in the garb of news. The phenomenon of political paid news became particularly noticeable during the 2009 general elections and thereafter during the elections to the assemblies of various states. The phenomenon acquired a new and even more destructive dimension by redefining political news or reporting on candidates standing for election; many such news reports would be published or broadcast perhaps only after financial transactions had taken place, almost always in a clandestine manner. It is widely believed that many media companies, irrespective of the volume of their businesses and their profitability, were selling news space after arriving at an understanding with politicians and representatives of corporate entities that were advertisers. Space in publications and airtime were occupied by advertisements that were disguised as news. News is meant to be objective, fair and neutral; this is what sets apart such information and opinion from advertisements that are paid for by corporate entities, governments, organisations or individuals., What happens when the distinction between news and advertisements starts blurring, when advertisements double up as news that have been paid for, or when news is published in favour of a particular politician by selling editorial spaces? In such situations, a section of the reader or the viewer can hardly distinguish between news reports and advertisements or advertorials. Marketing executives use the services of journalists willingly or otherwise to gain access to political personalities. So‑called rate cards or packages are distributed that often include rates for publication of news items that not merely praise particular candidates but also criticize their political opponents. Candidates who do not go along with such practices on the part of media organisations may be denied coverage. Sections of the media in India have willy‑nilly become participants and players in such practices that contribute to the growing use of money power in politics which undermines democratic processes and norms while hypocritically pretending to occupy a high moral ground. This has not merely undermined democracy in India but also tarnished the country’s reputation., Identical articles with photographs and headlines have appeared in competing publications carrying by‑lines of different authors around the same time. On the same page of specific newspapers, articles have been printed praising competing candidates claiming that both are likely to win the same elections. Nowhere is there any indication that the publication of such news reports has entailed financial transactions or has been sponsored by certain individuals or political parties. When confronted with circumstantial evidence that substantiates allegations of paid news, the standard reaction of individuals accused of corrupt practices is to pretend that nothing untoward has happened since the evidence is circumstantial in nature. The typical response of representatives of political parties as well as media organisations is to flatly deny these allegations. In private, however, these very same people acknowledge that the cancer of paid news has spread deep into the country’s body politic and needs to be removed., Realising the dangers of paid news to democracy as well as the right to freedom of expression enshrined in Article 19 of the Constitution of India, on June 9, 2009, the Press Council of India appointed a Sub‑Committee comprising Shri Paranjoy Guha Thakurta and Shri Kalimekolam Sreenivas Reddy to examine the phenomenon of paid news observed during the last Lok Sabha elections based on inputs received from the members and others. The two members met a cross‑section of society in New Delhi, Mumbai and Hyderabad and also went through many letters and representations that were sent to the Council. The report of the Sub‑Committee was discussed in detail by the Press Council of India in its two meetings held in Indore and New Delhi on 31 March 2010 and 26 April 2010 respectively. Members gave a number of suggestions and thereafter, the Press Council of India’s Chairman appointed a Drafting Committee to prepare a final report for the consideration of the Council. The Chairman appointed a twelve‑member Committee consisting of Shri H. N. Cama, Lalit Mangotra, U. C. Sharma, Y. C. Halan, K. Sreenivas Reddy, Kalyan Barooah, S. N. Sinha, Anil Jugal Kishore Agarwal, Kundan R. L. Vyas, Paranjoy Guha Thakurta, P. Javadekar, and Keshava Rao. The Drafting Committee considered the views expressed during various meetings of the Press Council and has drafted a report for the consideration of the Council., Introduction Paid News can be defined as any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration. Paid news is a complex phenomenon and has acquired different forms over the last six decades. It ranges from accepting gifts on various occasions, foreign and domestic junkets, various monetary and non‑monetary benefits, besides direct payment of money. Another form of paid news that has been brought to the notice of the Press Council of India by the Securities and Exchange Board of India is in the form of private treaties between media companies and corporate entities. A private treaty is a formal agreement between the media company and another non‑media company in which the latter transfers certain shares of the company to the former in lieu of advertisement space and favourable coverage. Since the phenomenon of paid news is old, complex and deep‑rooted in the system and seems to be spreading its cancerous roots rapidly as observed after the 2009 elections, the Drafting Committee feels that the Press Council of India should initially focus only on the paid news observed during the last Lok Sabha elections (2009). This decision stems from the decision of the Press Council as conveyed by the Secretary to the Council members., Election‑time paid news The election‑time paid news phenomenon has three dimensions. First, the reader or the viewer does not get a correct picture of the personality or performance of the candidate in whose favour or against he decides to cast his vote. This destroys the very essence of democracy. Second, contesting candidates perhaps do not show it in their election expense account thereby violating the Conduct of Election Rules, 1961 framed by the Election Commission of India under the Representation of the People Act, 1951. Third, those newspapers and television channels which received money in cash but did not disclose it in their official statements of accounts have violated the Companies Act 1956 as well as the Income Tax Act 1961 besides other laws. The payment and receipt of election‑time paid news is a clandestine operation and has become widespread and organised as advertising agencies, public relations firms, politicians, journalists, managers and owners of some media companies are believed to be involved in it. It is therefore not easy to find clinching evidence that pins responsibility on individuals, parties and organisations. However, a number of persons including members of the Sub‑Committee set up by the Council have collected a large volume of circumstantial evidence that is with the Press Council, which indicates that monetary consideration was exchanged for favourable coverage, reporting and telecasting., Separating Management from Editorial Going through the observations of persons with whom the Sub‑Committee interacted and the evidence provided by them and the discussions in the Press Council it is felt that election‑time paid news deals are done between the candidates or political parties or their agents and media. It was felt that there should be a clear distinction drawn between the management and editorial staff in media companies and that the independence of the editor should be maintained and safeguarded., Role of Press Council The Press Council of India was set up by Parliament as a statutory, quasi‑judicial body for the purpose of preserving the freedom of the press and of maintaining and improving the standards of newspapers and news agencies in India. However, it has been entrusted with only limited powers to admonish, reprimand and pass strictures. It cannot penalise the errant or those found guilty of malpractices. Besides, the Council’s mandate does not extend beyond the print medium. A proposal to amend Section 15(4) of the Press Council Act, 1978, to make the directions of the Council binding has been pending for a long time. It should be taken up on a priority basis., Representation of the People Act, 1951 The Union and State elections are regulated by the provisions of the Representation of the People Act, 1951. The main purpose of this Act is to ensure free and fair elections in the country. Therefore, since election‑time paid news undermines free and fair elections, it is recommended that Section 123 of the Representation of the People Act, 1951, should be suitably amended so as to declare any payment for the publication of news as a corrupt practice or an electoral malpractice and should be made a punishable offence., Press Council of India The Press Council of India should constitute a body of media professionals with wide representation at the national, state and district levels to investigate either suo moto or on receipt of complaints instances of paid news and the recommendations of such a body after going through an appellate mechanism should be binding on the Election Commission of India and other government authorities. The guidelines of the Press Council of India that news should be clearly demarcated from advertisements by printing disclaimers should be strictly enforced by all publications. As far as news is concerned, it must always carry a credit line and should be set in a typeface that would distinguish it from advertisements. The guidelines of the Council, as decided in 1996, are reproduced hereunder and efforts should be made to ensure that these are followed by all media organisations., Guidelines: General Election is a very important feature of our democracy and it is imperative that the media transmits to the electorate fair and objective reports of the election campaign by the contesting parties. Freedom of the press depends to a large measure on the press itself behaving with a sense of responsibility. It is therefore necessary to ensure that the media adheres to this principle of fair and objective reporting of the election campaign. The Press Council has therefore formulated the following guidelines to the media for observance during elections: 1. It will be the duty of the press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate or party or incident during the elections. In practice, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent. 2. Election campaign along communal or caste lines is banned under the election rules. Hence, the press should eschew reports which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language. 3. The press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The press shall not publish unverified allegations against any candidate or party. 4. The press shall not accept any kind of inducement, financial or otherwise, to project a candidate or party. It shall not accept hospitality or other facilities offered to them by or on behalf of any candidate or party. 5. The press is not expected to indulge in canvassing of a particular candidate or party. If it does, it shall allow the right of reply to the other candidate or party. 6. The press shall not accept or publish any advertisement at the cost of public exchequer regarding achievements of a party or government in power. 7. The press shall observe all the directions, orders, instructions of the Election Commission, Returning Officers or Chief Electoral Officer issued from time to time., Guidelines on Pre‑poll and Exit‑poll Survey 1996 The Press Council of India, having considered the question of desirability or otherwise of publication of findings of pre‑poll surveys and the purpose served by them, is of the view that the newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themselves to be exploited by the interested parties. The Press Council therefore advises that in view of the crucial position occupied by the electoral process in a representative democracy like ours, the media should be on guard against their precious forum being used for distortions and manipulations of the elections. This has become necessary to emphasize today since the print media is sought to be increasingly exploited by the interested individuals and groups to misguide and mislead the unwary voters by subtle and not so subtle propaganda on caste, religious and ethnic basis as well as by the use of sophisticated means like the alleged pre‑poll surveys. While the communal and seditious propaganda is not difficult to detect in many cases, the interested use of the pre‑poll survey, sometimes deliberately planted, is not so easy to uncover. The Press Council therefore suggests that whenever the newspapers publish pre‑poll surveys, they should take care to preface them conspicuously by indicating the institutions which have carried such surveys, the individuals and organisations which have commissioned the surveys, the size and nature of sample selected, the method of selection of the sample for the findings and the possible margin of error in the findings. 2. Further, in the event of staggered poll dates, the media is seen to carry exit‑poll surveys of the polls already held. This is likely to influence the voters where the polling is yet to commence. With a view to ensure that the electoral process is kept pure and the voters’ minds are not influenced by any external factors, it is necessary that the media does not publish the exit‑poll surveys till the last poll is held. 3. The Press Council therefore requests the press to abide by the following guideline in respect of the exit polls: No newspaper shall publish exit‑poll surveys, however genuine they may be, till the last of the polls is over., Election Commission of India The Election Commission of India should set up a special cell to receive complaints about paid news in the run‑up to the conduct of elections and initiate a process through which expeditious action could be taken on the basis of such complaints. The Election Commission of India should nominate independent journalists or citizens in consultation with the Press Council of India who would accompany the election observers deputed by the Election Commission of India to various states and districts. These nominated journalists or citizens could report on instances of paid news to the Press Council of India and the Election Commission of India., Self‑regulation Self‑regulation is the best option to check the paid news phenomenon. However, self‑regulation only offers partial solutions to the problem since there would always be offenders who would refuse to abide by voluntary codes of conduct and ethical norms that are not legally mandated. There should be a debate among all concerned stakeholders on whether a directive of the Supreme Court of India that enjoins television channels to stop broadcasting campaign‑related information on candidates and political parties 48 hours before elections take place can and should be extended to the print medium since such a restriction does not apply to this section of the media at present., Education The Council suggests that efforts should be made to educate the voters to differentiate between the doctored reporting and the balanced and just reporting. This can be done by the Ministry of Information and Broadcasting with the help of the Press Council of India and various associations of journalists and newspaper owners. Local press clubs should also be associated with the conduct of seminars and workshops in different cities to educate readers and viewers. The Press Council of India, representatives of political parties, associations of newspaper owners, television broadcasters and journalists unions and associations can provide resource persons for such seminars and workshops. The process of educating voters and citizens should begin before elections take place, soon after the dates of elections are announced., Ministry of Information and Broadcasting The Union Ministry of Information and Broadcasting should conduct national conferences, workshops, seminars and awareness‑generating campaigns involving, among others, the Press Council of India, the Election Commission of India, representatives of editors, journalists associations and unions, political parties and media owners to deliberate on the issue and arrive at workable solutions to curb the paid news phenomenon in particular. The Union Minister of Information and Broadcasting should hold separate meetings with national associations of newspaper owners, editors and journalists to discuss the paid news phenomenon and how it should be curbed. A meeting of all political parties should also be organised to make them understand that if the phenomenon of paid news is not checked no political party would benefit. Similarly owners of media companies should be made to understand that money illegally obtained for paid news is not just myopic but would eventually lead to loss of credibility among readers and viewers and would, hence, be detrimental to the interests of the media., Parliament A small Committee of Members of Parliament from both Houses should hold a hearing for suggesting changes in the Representation of the People Act, 1951, to prevent the practice of paying for news coverage in newspapers and television channels and declaring it as an electoral malpractice or an act of corruption and be made a punishable offence. All these initiatives, if sincerely implemented, may not entirely stop such malpractices in the Indian media but could reduce their incidence to a considerable extent., Recommendations It is recommended that the recommendations as under should be implemented by the Government. 1) Representation of the People Act, 1951 be amended to make incidence of paid news a punishable electoral malpractice. 2) The Press Council of India must be fully empowered to adjudicate the complaints of paid news and give final judgement in the matter. 3) Press Council Act be amended to make its recommendations binding and electronic media be brought under its purview. 4) Press Council of India should be reconstituted to include representatives from electronic and other media., Footnote: The Council decided that the report of the Sub‑Committee may remain on record of the Council as reference document. It also decided that the issue of strengthening the Working Journalists Act be taken up separately., File No: 1501/34/2009‑TV(I) Government of India Ministry of Information and Broadcasting Broadcasting Wing New Delhi. Dated: 5th December 2011. Ministry of Information and Broadcasting, Government of India, has formulated policy guidelines for downlinking all satellite television channels downlinked / received / transmitted and re‑transmitted in India for public viewing. Consequently, no person or entity shall downlink a channel which has not been registered by the Ministry of Information and Broadcasting under these guidelines. These guidelines envisage two kinds of permissions. The first kind of permission is required to be obtained by an Indian company which wants to enter into the business of downlinking one or more foreign satellite television channels. The second kind of permission is for allowing the downlinking of the satellite television channel and registering it in the list of channels permitted for downlinking in India. A foreign television channel can thus seek permission for registration under Downlinking Guidelines for being viewed in India by entering into agreement with an Indian company fulfilling the eligibility criteria prescribed hereunder. Companies which have been granted permission under the Uplinking Guidelines for uplinking television channels from India will automatically stand permitted for seeking permission for registration of channels for downlinking in India. A channel which is permitted to uplink from India and caters to foreign audience only is not required to seek registration under the Downlinking Guidelines. Henceforth, all persons or entities providing television satellite broadcasting services (television channels) uplinked from other countries to viewers in India as well as any entity desirous of providing such a television satellite broadcasting service, receivable in India for public viewership, shall be required to obtain permission from the Ministry of Information and Broadcasting, in accordance with the terms and conditions prescribed under these guidelines., The revised guidelines are as given below: 1.1. The entity applying for permission for downlinking a channel, uplinked from abroad (i.e., applicant company), must be a company registered in India under the Indian Companies Act, 1956, irrespective of its equity structure, foreign ownership or management control. 1.2. The applicant company must have a commercial presence in India with its principal place of business in India. 1.3. The applicant company must either own the channel it wants downlinked for public viewing, or must enjoy, for the territory of India, exclusive marketing or distribution rights for the same, inclusive of the rights to the advertising and subscription revenues for the channel and must submit adequate proof at the time of application. 1.4. In case the applicant company has exclusive marketing or distribution rights, it should also have the authority to conclude contracts on behalf of the channel for advertisements, subscription and programme content. 1.5. The applicant company should have a minimum net worth as prescribed below: For downlinking of first (non‑news or news & current affairs) television channel Rs 5.0 crore; for downlinking each additional television channel Rs 2.50 crore. 1.6. The applicant company must provide names and details of all the directors of the company and key executives such as chairperson, managing director, chief operating officer, chief executive officer, chief technical officer, chief financial officer and head of marketing to get their national security clearance. 1.7. The applicant company shall furnish technical details such as nomenclature, make, model, name and address of the manufacturers of the equipment or instruments to be used for downlinking and distribution, the block schematic diagram of the downlinking and distribution system and also demonstrate the facilities for monitoring and storing record for 90 days. 1.8. The applicant company should not have been disqualified from holding such permission under these guidelines. 1.10. At least one of the persons occupying a top management position in the applicant company should have a minimum three years of prior experience in a top management position in a media company or media companies operating news and current affairs or non‑news and current affairs television channels as the case may be., 2.1. Only companies permitted or eligible for permission to downlink, as per clause 1 above, shall be eligible to apply for permission of channels. 2.2. The downlinked channel must be licensed or permitted for being broadcast by the regulatory or licensing authority of the country of transmission, proof of which would have to be submitted at the time of application. 2.3. The channel being registered should not have been deregistered under these guidelines at the time of application. 2.4. No news and current affairs channel shall be permitted to be downlinked if it does not meet the following additional conditions: (a) It does not carry any advertisements aimed at Indian viewers; (b) It is not designed specifically for Indian audiences; (c) It is a standard international channel; (d) It has been permitted to be telecast in the country of its uplinking by the regulatory authority of that country; provided that the Government may waive or modify the condition under clause 2.4.1 on a case‑by‑case basis. 2.5. For the purposes of these guidelines any channel which has any element of news or current affairs in its programme content will be deemed to be a news and current affairs channel., 3.1. The permission granted to a company to downlink channels, uplinked from other countries, into India under these guidelines shall be valid for a period of ten years from the date of issuance of permission. The registration granted to such channels under these guidelines shall also be valid for a period of ten years. 3.2. The registration granted under these guidelines to channels uplinked from India shall also be valid for a period of ten years and shall be co‑terminus with the uplinking permission of the channel., 4.1. The company seeking permission to downlink channels, uplinked from other countries, into India under these guidelines shall pay a permission fee of Rs 10 lakhs at the time of grant of permission. 4.2. The company shall pay a permission fee for registration of channels under these guidelines as follows: Rs 5 lakhs per channel per annum for downlinking of television channel uplinked from India; Rs 15 lakhs per channel per annum for downlinking of television channel uplinked from abroad. The applicant company shall pay the permission fee for the first year before the issuance of permission. The succeeding year’s permission fee will have to be deposited 60 days before such fee becomes due., 5.1. The company permitted to downlink registered channels shall comply with the Programme and Advertising Code prescribed under the Cable Television Networks (Regulation) Act, 1995. 5.2. The company shall ensure compliance with the provisions of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 and the rules, guidelines, notifications issued thereunder. 5.3. The applicant company shall adhere to any other code, standards, guidelines or restrictions prescribed by the Ministry of Information and Broadcasting, Government of India for regulation of content on television channels from time to time. 5.4. The applicant company shall submit audited annual accounts of its commercial operations in India. 5.5. The applicant company shall obtain prior approval of the Ministry of Information and Broadcasting before undertaking any upgradation, expansion or any other changes in the downlinking and distribution system or network configuration. 5.6. The applicant company shall provide satellite TV channel signal reception decoders only to multi‑system operators or cable operators registered under the Cable Television Networks (Regulation) Act, 1995 or to a direct‑to‑home operator registered under the DTH guidelines issued by the Government of India or to an Internet Protocol Television service provider duly permitted under their existing telecom licence or authorized by the Department of Telecommunications or to a HITS operator duly permitted under the policy guidelines for HITS operators issued by the Ministry of Information and Broadcasting, Government of India to provide such service., 5.7. The applicant company shall ensure that any of its channels which is unregistered or prohibited from being telecast or transmitted or re‑transmitted in India, under the Cable Television Networks (Regulation) Act, 1995 or the DTH guidelines or any other law for the time being in force, cannot be received in India through encryption or any other means. 5.8. The Union Government shall have the right to suspend the permission of the company or registration of the channel for a specified period in public interest or in the interest of national security to prevent the misuse of the channel. The company shall immediately comply with any directives issued in this regard. 5.9. The applicant company seeking permission to downlink a channel shall operationalise the channels within one year from the date of the permission being granted by the Ministry of Information and Broadcasting failing which the permission will be liable to be withdrawn without any notice in this regard. However, the company shall be afforded a reasonable opportunity of being heard before such a withdrawal. 5.10. The company or channel shall adhere to the norms, rules and regulations prescribed by any regulatory authority set up to regulate and monitor the broadcast services in the country. 5.11. The applicant company shall give intimation to the Ministry of Information and Broadcasting regarding change in the directorship, key executives or foreign direct investment in the company, within 15 days of such a change taking place. It shall also obtain security clearance for such changes in its directors and key executives. 5.12. The applicant company shall keep a record of programmes downlinked for a period of 90 days and produce the same before any agency of the Government as and when required. 5.13. The applicant company shall furnish such information as may be required by the Ministry of Information and Broadcasting from time to time. 5.14. The applicant company shall provide the necessary monitoring facility at its own cost for monitoring of programmes or content by the representative of the Ministry of Information and Broadcasting or any other Government agency as and when required. 5.15. The applicant company shall comply with the obligations and conditions prescribed in the downlinking guidelines issued by the Ministry of Information and Broadcasting, and the specific downlinking permission agreement and registration of each channel., 5.16. In the event of any war, calamity or national security concerns, the Government shall have the power to prohibit for a specified period the downlinking, reception, transmission and retransmission of any or all channels. The company shall immediately comply with any such directions issued in this regard. 6.1. In the event of a channel found to have been or being used for transmitting any objectionable unauthorized content, messages or communication inconsistent with public interest or national security or failing to comply with the directions as per paragraph 5.8 or paragraph 5.16, the permission granted shall be revoked and the company shall be disqualified to hold any such permission for a period of five years, apart from liability for punishment under other applicable laws. Further, the registration of the channel shall be revoked and the channel shall be disqualified from being considered for fresh registration for a period of five years.
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Subject to the provisions contained in Paragraph 6.1 of these guidelines, in the event of a permission holder or channel violating any of the terms and conditions of permission, or any other provisions of the guidelines, the Ministry of Information and Broadcasting shall have the right to impose the following penalties: In the event of first violation, suspension of the permission of the company and/or registration of the channel and prohibition of broadcast for up to 30 days. In the event of second violation, suspension of the permission of the company and/or registration of the channel and prohibition of broadcast for up to 90 days. In the event of third violation, revocation of the permission of the company and/or registration of the channel and prohibition of broadcast for the remaining period of permission. In the event of failure of the permission holder to comply with the penalties within the prescribed time, revocation of permission and/or registration and prohibition to broadcast for the remaining period of the permission and disqualification to hold any fresh permission and/or registration in future for a period of five years. In the event of suspension of permission as mentioned in Paragraph 5.8, 5.16 or 6.2, the permission holder will continue to discharge its obligations under the Grant of Permission Agreement including the payment of fee. In the event of revocation of permission and/or registration the fees paid will be forfeited. All the penalties mentioned above shall be imposed only after giving a written notice to the permission holder., In the event of any question, dispute or difference arising under the Grant of Permission Agreement or in connection therewith, except as to the matter whose decision is specifically provided under the Grant of Permission Agreement, the same shall be referred to the sole arbitration of the Secretary, Department of Legal Affairs or his nominee. There will be no objection to any such appointment that the arbitrator is a Government servant. The award of the arbitrator shall be final and binding on the parties. If the arbitrator originally referred to is transferred, vacates his office, or is unable to act for any reason whatsoever, the Secretary, Department of Legal Affairs shall appoint another person to act as arbitrator. The Arbitration and Conciliation Act, 1996, the rules made thereunder and any modification thereof, for the time being in force, shall be deemed to apply to the arbitration proceedings. The venue of arbitration shall be New Delhi or such other place as the arbitrator may decide. The arbitration proceedings shall be conducted in the English language. Upon any reference as aforesaid, the assessment of costs, interest and incidental expenses in the proceedings for the award shall be at the discretion of the arbitrator., The applicant company shall apply to the Secretary, Ministry of Information and Broadcasting in the prescribed Performa along with full details and documentation relevant for evaluating its eligibility for grant of permission to downlink television channels in India. Each application form shall be accompanied by a demand draft of Rs. Ten Thousand towards a non‑refundable processing fee. The applicant company shall also submit full details of each channel being or proposed to be downlinked along with all other documents as prescribed in the guidelines. After scrutiny of the application, if the applicant company is found eligible, the same will be sent for security clearance to the Ministry of Home Affairs. In the meanwhile, the Ministry of Information and Broadcasting will evaluate the suitability of the proposed channel for downlinking into India for public viewing. If the applicant company and the proposed channel are found suitable, the Ministry of Information and Broadcasting will register the channel and the applicant company to enter into a Grant of Permission Agreement with the Ministry of Information and Broadcasting, Government of India. On receipt of the signed agreement, the Ministry of Information and Broadcasting will issue a registration certificate for the concerned channels and grant permission to the applicant company to downlink the relevant channels in India for the prescribed period. On receipt of the permission and upon registration of the channel, the applicant company will be entitled to approach the Multiple System Operators, Cable head‑end operators and Direct‑to‑Home Operators for receiving/downlinking its channel's signal for further transmission, retransmission or distribution., The existing permission holders as on the date of issuance of the amended Guidelines on 05.12.2011 will continue to be governed by the terms and conditions of permission as they existed prior to the issuance of amendments on 05.12.2011 till the expiry of such permission. Renewal of permission or registration will be considered for a period of ten years at a time, subject to the condition that the company or channel should not have been found guilty of violating the terms and conditions of permission, including violations of the programme and advertisement code, on five occasions or more. What would constitute a violation would be determined in consultation with the established self‑regulating mechanisms. The renewal will also be subject to the permission or registration holder's acceptance of all of the terms and conditions of permission as the Government may prescribe by way of policy pronouncements from time to time. At the time of considering the renewal of permission or registration of the existing permission holders, the eligibility criteria of net worth of the company and experience of the top management will not apply. However, other terms and conditions will be applicable as per the modified terms and conditions of the permission., The permission holder shall not transfer the permission without prior approval of the Ministry of Information and Broadcasting. In case of transfer of permission of a satellite television channel uplinked from India from one company to another as per the provisions of the Uplinking Guidelines, the registration of the channel under the downlinking Guidelines shall also stand transferred to the new company. In case of companies permitted to downlink channels from other countries, on a written request from the permission holder, the Ministry shall allow transfer of permission in case of merger, demerger or amalgamation, or from one group company to another provided that such transfer is in accordance with the provisions of the Companies Act and further subject to the fulfillment of the following conditions: (i) The new entities should be eligible as per the eligibility criteria including the net worth and should be security cleared. (ii) The new entities should undertake to comply with all the terms and conditions of permission granted., Note (Superscripts): 1 – Amended vide Order No. 1501/34/2009‑TV(I), dated 05.12.2011 of the Ministry of Information and Broadcasting. 2 – Amended in accordance with the provisions of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 and the rules and notifications thereunder. 3 – Deleted as not relevant as per current Approved Cabinet Note. Report of Sub‑Committee on issues related to Paid News adopted by the Council on 15.11.13. The Council had received the reference from the Ministry of Information and Broadcasting, forwarding the Forty‑Seventh Report of the Standing Committee of Parliament on the \Issue related to Paid News.\ The Committee in its detailed report made the following recommendations for tackling the issue of Paid News., There should be a statutory body, viz., Media Council, having eminent persons as its members to look into all media contents both from print media and electronic media (TV as well as Radio) with powers to take strong action against the defaulters. Under this process the Press Council of India shall be wound up. The Press Council of India should be revamped and cast with powers to take care of print media and a similar statutory body is to be set up for electronic media. In both the above situations, the Committee recommends that the media owners or interested parties should not be a part of the proposed Media Council or the revamped Press Council. Election laws and rules should be reviewed and strengthened to curb the paid news menace in the election process. While reviewing the election laws and rules, the Election Commission of India should be empowered with not only dealing with the cases relating to suppression of expenditure in the election on account of paid news but also taking action against the defaulting candidate as well as the concerned media entity found indulging in Paid News. Mr. Deepak Khosla had sent a mail to the Council seeking expansion of the definition of Paid News, made by the Council as \any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration\, and had said he is approaching the Delhi High Court to expand the definition of the term Paid News. Two members of the Council opined that since Mr. Khosla had conveyed his intention to move the High Court, the Council could await any decision of the High Court, and if the Council was made a party to the proposed petition of Mr. Khosla before the High Court, the Full Council may deliberate and take an appropriate stand. The Council referred the main recommendations on Paid News of the Standing Committee and also the email communication of Mr. Khosla to the Sub‑Committee on Media Policy Issues comprising Messrs. K. S. Sachidananda Murthy, K. Amarnath, V. K. Chopra and Gurinder Singh. After detailed discussions on the Standing Committee Report and the communication of Mr. Khosla, the Sub‑Committee made the following recommendations to the Council., The Sub‑Committee rejects the suggestion made by the Committee that the Press Council of India should be wound up, with the purported purpose of formation of a statutory body called Media Council. The Sub‑Committee points out that the Press Council of India is a statutory body established under an Act of Parliament and has been performing its statutory duties as enumerated in the Press Council Act, with distinction, ever since the first Press Council was constituted. The Sub‑Committee is of the firm opinion that the Press Council of India has played a vital role in preserving freedom of the press, establishing and maintaining standards of journalism, defining and enforcing ethical standards in media, and has provided solutions to complaints both against and from the Press. It has defined journalistic practices and standards, and any violation of these practices attracts action from the Press Council, based on suo‑motu action or on complaints. The Council has taken exemplary steps in defining Paid News not only during elections, but also in other areas like private treaties. The Council has advised both the Election Commission of India and the Securities and Exchange Board of India to initiate steps to tackle Paid News in elections and private treaties in the securities field, and it has sensitised the media on these matters. The Sub‑Committee strongly recommends that the Press Council of India should continue its work in a more robust and purposeful manner, as it is a unique mix of media representatives and representation from Parliament, academia, legal and literary fields. It is headed by a former Judge of the Supreme Court, who is selected by a transparent process. The Council is autonomous as its representation mix is such that no single group dominates its proceedings or voting rights. In comparison, other bodies like the Election Commission of India and the Securities and Exchange Board of India comprise members nominated by the government of the day., The Sub‑Committee notes that the Council, after the advent of private television channels and FM radio stations, has suggested expansion of the Council so that the unique self‑regulatory model of the Press Council of India is extended to the electronic media as well. The Council has made a number of recommendations to the Ministry of Information and Broadcasting, as well as to the Parliamentary Standing Committee, which should be considered by the government. The Standing Committee has suggested that a media body should look at all contents in print and electronic media. Such suo‑motu monitoring is not required, as the Constitution gives the right of free and fair functioning to the media as part of the Right of Expression in the list of Fundamental Rights, which are subject to reasonable restrictions enumerated in the Constitution. Hence the Press Council, in its present form or in an enlarged format, should look at complaints of Paid News and take decisions as per the definition of Paid News. Like everyone else, the Election Commission of India shall have the right to complain against any media entity regarding publication or broadcast of Paid News, and the Council, as per provisions of the Press Council Act, should take action., The Standing Committee has suggested that media owners or interested parties should not be part of either the Press Council or a body which would replace the Press Council. The Sub‑Committee says that even though newspaper owners are part of the Council, like other segments of media, and of Parliament and civil society, the Council has a healthy convention that the owner/editor/working journalist of any publication against whom a complaint is being heard will recuse from the hearing and any decision to be taken on the complaint. The Sub‑Committee recommends that this healthy practice should continue, rather than shutting out all media representatives from the Press Council. If necessary, a specific provision may be made in the Rules of the Press Council of India. The Sub‑Committee agrees with the suggestion made by the Parliamentary Standing Committee for adequately strengthening the election laws in the country to curb indulgence in Paid News by political parties and candidates. However the Sub‑Committee is not in agreement with the recommendation that the Election Commission of India should be empowered to take action against media entities found indulging in Paid News. Giving such powers to the Election Commission, which has no mandate to interfere with the freedom of the press, would go against constitutional provisions. The power to take action against media entities accused of indulging in Paid News should vest solely with the Press Council, with the Election Commission entitled to prefer complaints to the Press Council. Regarding the communication from Mr. Khosla, the Sub‑Committee was of the view that the Council should await the developments regarding the proposed petition of Mr. Khosla in the High Court and then take an appropriate decision., 243 Code of Ethics Broadcasting Standards News Broadcasters Association, New Delhi News Broadcasting Standards Regulations. 1. Definitions: For purposes of these Regulations, the following terms shall have the following meanings: 1.1 \Authority\ means the News Broadcasting Standards Authority of the News Broadcasters Association (NBA). 1.2 \Broadcast\ means any program, film, feature, news‑item, news‑report or any other matter that is transmitted or retransmitted by a broadcaster for viewing, and includes a cartoon, picture, photograph, ticker or advertisement that is transmitted or retransmitted by a broadcaster. 1.3 \Broadcaster\ means any association of persons or organization or corporate entity who or which owns, manages and/or controls a satellite or cable television channel that comprises exclusively news and current affairs content or news or current affairs capsules as part of its programming, and this term shall be deemed to include the editor, provided that an association of persons or organization or corporate entity shall be deemed not to be a broadcaster for purposes of these Regulations if it is not a Member or Associate Member of the NBA. 1.4 \Code of Conduct\ shall mean the Code of Ethics & Broadcasting Standards in relation to broadcasters and television journalists as framed by the NBA. 1.5 \Complainant\ means a person or association of persons or organization or corporate entity who makes a complaint to the Authority regarding a broadcaster in relation to, in respect of and/or arising from any matter which the Authority has jurisdiction to entertain, examine and decide under these Regulations. 1.6 \NBA\ means the News Broadcasters Association. 1.7 \News Agency\ shall mean any organization, whether described as an agency or otherwise, that collects, collates and/or disseminates news and/or other information on current affairs to broadcasters. 1.8 \Television Journalist\ shall mean and shall include an editor, producer, anchor and/or any other person by whatever name called who is responsible for approving the content of a broadcast and shall include a stringer or a casual contributor. 1.9 In these Regulations the use of the word he, him or his wherever appearing shall mean and include she or her as the case may be; and the singular shall be deemed to mean and include the plural., 2. Composition of the News Broadcasting Standards Authority: 2.1 The Authority shall consist of a Chairperson being an eminent jurist and eight other Members nominated by the Board of the NBA by a majority decision. 2.2 Members of the Authority shall comprise four editors employed with a broadcaster, four persons having special knowledge and/or practical experience in the field of law, education, medicine, science, literature, public administration, consumer affairs, environment, human psychology and/or culture, provided that no person being a Member of the Authority shall participate in any adjudication relating to a dispute in which such person shall have any direct involvement or commercial interest or in which such Member shall be interested as an agent or representative of any broadcaster. 3. Term of Office of Chairperson and Members: 3.1 The Chairperson and other Members shall hold office for a period of three years; provided that the Chairperson shall continue to hold office until the Authority is reconstituted in accordance with the provisions of the NBA rules or for a period of six months whichever is earlier. Provided also that where a person nominated as a Member of the Authority has a charge framed against him in relation to a serious criminal offence or is otherwise found unfit to hold office as Member of the Authority, the NBA may, by a decision of its Board, remove such person from being Member and thereupon such Member shall forthwith cease to be a Member of the Authority. 3.2 A Member nominated in his capacity as an editor employed with a broadcaster shall cease to be a Member if he ceases to be editor employed with such broadcaster; and the concerned broadcaster shall have the option of nominating for the remaining period of the Member's term an alternate editor to fill the vacancy caused within fifteen days thereof, failing which the vacancy shall be filled in the manner prescribed in clause 3.5 below. 3.3 A Member shall be deemed to have vacated his seat if he is, in the opinion of the Chairperson, absent without sufficient cause from three consecutive meetings of the Authority. 3.4 The Chairperson may resign his office by giving notice in writing to the NBA, and any other Member may resign his office by giving notice in writing to the Chairperson, and upon such resignation being accepted by the NBA or by the Chairperson as the case may be, the Chairperson or the Member shall be deemed to have vacated his office. 3.5 Any vacancy arising as above or otherwise shall be filled, as soon as may be, by nomination in the same manner in which the Member vacating office was nominated and the Member so nominated shall hold office for the remaining period in which the Member in whose place he is nominated would have held office. 3.6 A Member retiring or whose membership otherwise ceases as above (except by reason of a warning, admonition, censure, disapproval, sanction and/or fine having been issued against him by the Authority and/or having been removed by the Authority under these Regulations) shall be eligible for re‑nomination for not more than one additional term., 4. Terms of Service of Chairperson and Members: The Chairperson shall be paid such honorarium and other Members shall receive such allowances and/or fees for attending the meetings of the Authority, as the NBA may in its General Body Meeting decide from time to time. 5. Meetings of the Authority: 5.1 The Authority shall meet at least once in two months, at such times and places in Delhi/New Delhi as the Chairperson may in writing notify the Members at least seven days before any scheduled meeting; and shall observe the rules of procedure at the meetings as the Authority may prescribe. 5.2 Quorum of such meetings shall be at least four members, including the Chairperson. If any meeting is to be adjourned for want of quorum, then at the adjourned meeting the Members present shall form the quorum and shall have the power to decide on all matters which could have been disposed of at the adjourned meeting. 5.3 No act or proceeding of the Authority shall be deemed to be invalid by reason merely of the existence of any vacancy in, or any defect in the constitution of the Authority or quorum of a meeting. 6. Objects and functions of the Authority: 6.1 The objects of the Authority shall be to lay down and foster high standards, ethics and practices in news broadcasting, including entertaining and deciding complaints against or in respect of broadcasters insofar as these relate to the content of any broadcast. 6.2 In discharging its functions as aforesaid the Authority shall act consistently with the following precepts: (i) Maintaining and improving the standards of broadcast, and maintaining the independence of broadcasters, television journalists and/or news agencies; (ii) Ensuring compliance by broadcasters, television journalists and news agencies with the Code of Conduct and adherence by the said persons to high professional standards; (iii) Ensuring the maintenance of high standards of public taste and fostering a due sense of both the rights and responsibilities of citizens; (iv) Fostering and encouraging the growth of a sense of responsibility and public service among all those engaged in and associated with the profession of television journalism and business of broadcasting; (v) Keeping under review and scrutiny any developments likely to or having the tendency to restrict the gathering, supply and dissemination of news of public interest and importance; (vi) Such other aspects as may be incidental, consequential, related and/or otherwise materially concerned with the above precepts. 6.3 The Authority shall perform its functions and exercise the powers vested in it under these Regulations in relation to, and upon, the Members and Associate Members of the NBA or in relation to such other complaints or broadcasters and channels as may be referred to the Authority by the Ministry of Information and Broadcasting or other Ministry or other governmental body. 7. Powers of Authority: 7.1 Where, on receipt of a complaint made to it or otherwise, the Authority has reason to believe that a broadcaster has violated or offended against the Code of Conduct, the Authority may, after giving the broadcaster concerned an opportunity of being heard, hold an inquiry in such manner as is provided by these Regulations and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish, censure, express disapproval against and/or impose a fine upon the broadcaster and/or recommend to the concerned authority for suspension or revocation of licence of such broadcaster; provided that the fine imposed by the Authority shall not exceed Rs. 1,00,000 (Rupees One Lakh Only) and such fine shall be recovered from the concerned broadcaster; provided also that the Authority may not take cognizance of a complaint if, in the opinion of the Chairperson, there is no sufficient ground for holding an inquiry. 7.2 If the Authority is of the opinion that it is necessary or expedient in the public interest to do so, it may direct any broadcaster to cause to be published through a press release in such newspaper or other periodical and/or on such website, information relating to any inquiry conducted against the broadcaster as the Authority decides, including the warning, admonition, censure, disapproval issued and/or fine imposed and any other particulars relating to the proceedings as the Authority thinks fit; and the broadcaster shall comply with directions; provided also that the Authority shall publish a summary of every inquiry conducted by it on its website and in its Annual Report and newsletter published from time to time; provided that nothing in these Regulations shall be deemed to empower the Authority to hold an inquiry into any matter in respect of which any proceeding is pending in a Court of law or other Tribunal or statutory authority. 7.3 For the purposes of adjudicating upon any complaint or holding any inquiry under these Regulations, the Authority shall have the power of: (i) summoning persons and examining them and requiring the production and inspection of documents; (ii) receiving evidence; (iii) requisitioning any records or copies thereof from any broadcaster including in particular the footage (both edited and unedited) of any broadcast; provided that nothing in these Regulations shall be deemed to empower the Authority to compel any broadcaster to disclose the source of any news or information broadcast or to be broadcast. 7.4 No suit or other legal proceeding shall lie against the Authority, the Chairperson or any Member thereof or any person acting under the direction of the Authority in respect of anything which is done or intended to be done in good faith under these Regulations. 7.5 No suit or other legal proceeding shall lie against any broadcaster in respect of the broadcast of any matter under or in compliance with the orders or directions of the Authority. 8. Procedure for dealing with Complaints: These Regulations contemplate a two‑tier procedure for redressing grievances, whereby any person aggrieved by the content of any broadcast is required to first make a complaint to the concerned broadcaster as provided hereinafter; and if such complaint is not addressed or the complainant is not satisfied by the redress offered by the concerned broadcaster, the complainant may then prefer a complaint before the Authority. 8.1 Any complaint made to the concerned broadcaster or to the Authority, as the case may be, in respect of or against any broadcast shall be in writing, giving full name, complete address, mobile/land line number and email ID, and may be sent by post, courier or electronic mail as convenient. The complaint shall state the name and address of the broadcaster against which the complaint is preferred; shall state the time of the broadcast along with the substance of the contents of the broadcast and/or the text of the broadcast complained of (if such text is available) and the details of the misconduct complained of; shall also include such other particulars as are relevant to the subject‑matter of the complaint; shall state in what manner the broadcast violates or offends against the Code of Conduct and/or is otherwise objectionable; if the complaint is made to the Authority, it shall enclose a copy of the letter/e‑mail sent by the complainant to the broadcaster drawing the attention of the broadcaster to the subject matter of the complaint, stating the complainant's grievances along with reasons therefor together with a copy of the reply, if any, received by the complainant; provided that a complaint shall be made to a broadcaster by a person aggrieved within a reasonable time not exceeding seven days from the date of first broadcast; provided that it shall be incumbent upon the broadcaster to respond to the complaint within seven working days from the date of receipt thereof, failing which the Authority shall not entertain any complaint. Any complaint made to a broadcaster under these Regulations shall be addressed to, and dealt with by, the designated compliance officer of the concerned broadcaster whose specific designation, address and other correspondence details shall be available on the websites of the NBA and of the concerned broadcaster. A complaint may be made in English or Hindi in the form provided on the website, which can be filed by electronic mail or otherwise in writing; and if any documents in support thereof are in the vernacular, true translations thereof in English or Hindi must be filed along with the complaint. Hard copy of the complaint and supporting documents are to be sent by any mode of recorded delivery. Provided that the Authority shall not entertain any complaint unless before filing the complaint with the Authority, the complainant has made a complaint in writing to the concerned broadcaster as aforesaid; and the broadcaster has not responded or the complainant is not satisfied with the response or the complainant's grievance is not redressed by such response.
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A complaint shall be filed before the Authority within fourteen days from the date of receipt of a response from the broadcaster, or, if the broadcaster does not respond, within fourteen days from the date when the period provided for the broadcaster to respond expires. If a complaint is presented after the expiry of the period, the Authority may, if satisfied that the complainant has acted diligently and that the delay was caused by reasons not attributable to the complainant and/or for other sufficient cause, condone the delay and entertain the complaint. The Authority shall, in writing, inform any broadcaster to retain and preserve records of any broadcast that may be the subject matter of a complaint within ninety days of first broadcast; otherwise the broadcaster has no obligation to retain such records. The complainant shall place all relevant and material facts before the Authority and, at the foot of the complaint, make and subscribe a declaration that the facts stated are true and correct to the best of the complainant’s knowledge, that all relevant facts have been placed before the Authority and none have been concealed, that no proceedings are pending in any court, tribunal or statutory authority in respect of the subject matter, and that the complainant will inform the Authority forthwith if the matter becomes the subject of any other proceedings. If the complainant does not comply with these requirements, the Chairperson may return the complaint by recorded delivery, asking the complainant to bring it into conformity and re‑present it within a time to be fixed by the Authority. Failure to comply within the prescribed time may lead the Chairperson to terminate the proceedings, and the Authority shall be apprised of such decision at its next meeting. Not later than fourteen days from receipt of a complete complaint, a copy of the complaint shall be sent to the broadcaster together with a notice requiring the broadcaster to show cause why action should not be taken, giving the broadcaster fourteen days to respond. The Chairperson may, in appropriate cases, extend the time for issuance of the notice or for response, or may decide not to issue a notice where there is no sufficient ground for an inquiry; the Authority shall be apprised of the reasons for such a decision at its next meeting. The notice, together with a complete copy of the complaint and all documents relied upon, shall be sent to the broadcaster by recorded delivery at the address furnished in the complaint. Notice of the time, date and place of hearing shall be served on the complainant and the broadcaster by recorded delivery. The broadcaster may, within fourteen days of service of the notice, submit a written statement to the Authority and a copy to the complainant; if the broadcast is in a language other than English or Hindi, an English translation shall also be produced. The Chairperson may call for further information or additional statements and documents from either party, which shall become part of the record. The Authority may also call for additional particulars or documents relevant to the complaint. If the subject matter of the complaint is substantially the same as a former complaint, the Authority shall hear the complainant and, if necessary, the broadcaster, and pass appropriate orders. If the complainant fails to appear at a hearing without sufficient cause, the Authority may dismiss the complaint; if the broadcaster fails to appear, the Authority may decide the complaint ex parte. A party aggrieved by dismissal or ex parte orders may, within thirty days, apply to the Authority to restore the complaint or set aside the orders, showing sufficient cause for the previous non‑appearance. At the inquiry, parties shall be entitled to adduce relevant oral and documentary evidence and make submissions. At the close of the inquiry the Authority shall record its findings on the allegations, provide reasons, and pass orders and directions as deemed fit. Every case shall be determined by the majority view of the Members; the Chairperson’s view shall have the same weight as that of any Member. No Member shall take part in any proceeding in which the Member has a direct involvement, commercial interest, or acts as an agent or representative of a broadcaster; such Member shall opt out. If a vacancy arises, the National Broadcasting Standards Authority shall recommend four names to the Chairperson, who shall nominate a substitute Member or Members. The orders and directions of the Authority shall be communicated in writing to the parties and may be publicised on the National Broadcasting Standards Authority website, annual report and newsletter. In any inquiry a party may appear in person or be represented by counsel or an authorised representative. The Authority shall have the power to regulate its own procedure where the Regulations are silent or inadequate and may, in appropriate cases, hold inquiries in camera. Notwithstanding anything else, any inquiry shall be completed, as far as possible, within three months from receipt of the complaint. The Authority may suo motu initiate proceedings, issue notice or take action on any matter falling within the scope of these Regulations or the Code of Conduct, following the same procedures as for a complaint. All complaints decided by the Authority may be made publicly available, including the name of the complainant, but where the complainant raises valid privacy concerns, the Authority may, at its absolute discretion, grant anonymity or confidentiality., I, the undersigned, hereby appoint and retain Mr. PAI AMIT, Advocate, Supreme Court of India, to act and appear for me in the referenced writ petition, appeal or petition, and on my behalf to conduct and prosecute (or defend) the same and all proceedings that may be taken in respect of any application connected with it or any decree or order passed therein, including proceedings, taxation and application for review, to file and obtain return of documents, and to deposit and receive money on my behalf. I agree to ratify all acts done by the aforesaid Advocate in pursuance of this authority. Dated this 27th day of September 2020. Accepted, identified, verified, certified and satisfied. To the Registrar, Supreme Court of India, New Delhi. Sir, please enter my appearance on behalf of the petitioner, appellant, intervenor or respondent in the above matter. Dated 27 September 2020. The address for service of the Advocate is: PAI AMIT, 223 M.C. Setalvad Chambers, New Lawyers Chambers, Bhagwan Das Road, Supreme Court of India, New Delhi – 110001. Mobile 09953557798. Email amitpaioffice@gmail.com.
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CNR No. DLCT11-001316-2019, Case No. CBI/318/2019 (Old CC No. 11/18), RC No. 220 2015 E 0003, under section 120-B read with section 420 of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act. Through Shri Sanjay Kumar, Learned Deputy Legal Advisor for the Central Bureau of Investigation with Shri Jairaj Katiyar, Inspector of Police, CBI Economic Offences Unit‑IV, New Delhi, Investigating Officer of the case from 09 May 2016 onwards. Versus Through Ms. Honey Satpal, Learned Counsel for Shri Avil Menezes, the Liquidator of the Corporate Debtor A‑1 M/s Sunil Hi‑Tech Engineers Limited; Shri Vijay Kumar Aggarwal, Learned Counsel for A‑2; Shri Vikram Hegde and Shri Shri Singh, Learned Counsels for A‑3 and A‑4; Shri Rajeev Singh, Learned Counsel for A‑5; Shri Amit Band and Shri Pankaj Kapoor, Learned Counsels for A‑6., Facts of the case: Accused No. 1 is M/s Sunil Hi‑Tech Engineers Ltd (M/s SHEL), which is under liquidation through Liquidator Shri Avil Menezes. Accused No. 2 is Sunil Ratnakar Gutte, the then Director of Accused No. 1. Accused No. 3 is M/s aXYKno Capital Services Private Ltd (Financial Consultant). Accused No. 4 is R. Ramakrishnan, the then Chief Executive Officer/Director of Accused No. 3. Accused No. 5 is Dominic Gabriel Philip, Indian Administrative Service officer, who was Managing Director of Maharashtra State Mining Corporation Ltd (MSMCL), a Government of Maharashtra undertaking, from 13 September 2007 to 26 February 2009. Accused No. 6 is Avinash Manohar Rao Warjukar, who was Chairman of MSMCL from 11 December 2006 to 28 June 2010., In 2006, the Ministry of Coal allocated four coal blocks – Warora (estimated reserves 73 million metric tonnes), Agarzari (137 million metric tonnes), Marki‑Zari‑Jamni‑Adkoli (20 million metric tonnes) and Gare‑Palma II (175 million metric tonnes) – to Maharashtra State Mining Corporation Ltd. Because MSMCL lacked financial capacity to carry out mining, it required a reputed Joint Venture Partner for the purpose., The same procedure was followed for selecting the Financial Consultant for all four coal blocks and the same Financial Consultant was appointed for all four. The same procedure was also followed for selecting the Joint Venture Partners and for execution of Joint Venture Agreements for three of the blocks; the bid of the H‑1 bidder for the fourth block (Gare‑Palma II) was not accepted by the High Power Committee. The prosecution is restricted to the appointment of the Financial Consultant, selection of the Joint Venture Partner and execution of the Joint Venture Agreement for the Marki‑Zari‑Jamni‑Adkoli (Adkoli) coal block, which was the smallest of the four., The chargesheet contains five allegations. The first allegation concerns (i) the appointment of M/s aXYKno Capital Services Private Limited as the Financial Consultant for MSMCL despite the company being unsuitable and the procedure being opaque and unfair, (ii) the appointment being made without permission of the Government of Maharashtra, and (iii) the appointment being at an exorbitant cost. The second allegation alleges that A‑1 M/s Sunil Hi‑Tech Engineers Ltd was declared technically eligible and its commercial bid was opened, although it lacked the requisite three years of mining experience required by the tender conditions. The third allegation concerns deviation from the tender terms and the inclusion in the Joint Venture Agreement of provisions permitting transfer or pledge of shares by the Joint Venture Partner (A‑1) in the Special Purpose Vehicle. The fourth allegation concerns the transfer and pledge of shares by M/s Sunil Hi‑Tech Engineers Ltd and M/s SHEL Investment Consultancy Pvt. Ltd. in the SPV M/s Sunil Hi‑Tech Energy Ltd in violation of the bid documents and Joint Venture Agreement, favouring M/s Jaypee Development Corporation Ltd. The fifth allegation alleges a criminal conspiracy to cheat MSMCL by securing the appointment of A‑3 as Financial Consultant at an exorbitant cost, awarding the joint‑venture tender to A‑1 despite its ineligibility, and permitting illegal transfer and pledge of shares, thereby causing several crores of profit., First allegation – appointment of M/s aXYKno Capital Services Private Limited as Financial Consultant: According to the Central Bureau of Investigation, the minutes of the 160th meeting of the Board of Directors of MSMCL held on 22 December 2006, chaired by Accused No. 6 Avinash Manohar Rao Warjukar, recorded that the post of General Manager (Finance) had been vacant since 1989 and remained unfilled due to the closure of MSMCL. The Accounts and Finance functions were performed by an Accounts Officer on deputation from the Maharashtra Finance and Accounts Services, whose tenure expired in September 2006. The Board noted the need for a Financial Consultant to perform the functions of General Manager (Finance) until a government appointment could be made. The Board considered engaging the State Industrial Investment Corporation of Maharashtra (SICOM) at a fee of Rs 15 lakhs, later reduced to Rs 5 lakhs per assignment, but resolved that a consultant could be engaged for Rs 25,000 per month, which would be a better proposition., The process to appoint the Financial Consultant had to be scrapped twice because none of the applicants was found suitable. The first advertisement was issued on 31 December 2006 in various newspapers to appoint a Financial Consultant/Firm for (i) accounts outsourcing and (ii) preparation of business model and bid management. On 6 January 2007, six participants, including M/s Sanjeev Naidu and Associates, made presentations, but the Committee of Experts observed that none of the candidates was suitable for bid management and business model preparation. The post was re‑advertised., On 15 January 2007, presentations were scheduled. Four consultants/firms, including M/s Sanjeev Naidu and Associates in consortium with M/s Credit Innovative Strategies India Private Limited (later named M/s aXYKno Capital Services Private Limited), gave presentations and were interviewed by an expert panel comprising experts from different fields. Out of seven experts, one withdrew as he was a medical doctor. The remaining six experts included B.C. Bhartia, Chartered Accountant; Arun Goel, Deputy Director of Finance, M/s Mineral Exploration Corporation, Nagpur; and D.A. Meshram, Accounts Officer of MSMCL, who supported the consortium of Sanjeev Naidu and CISIL. They opined that the consortium appeared most competent and offered the lowest rates., The other three experts – Shri V. K. Jain, Company Affairs Consultant, MSMCL, Nagpur; Shri Sushil Bahel, Deputy Controller of Finance; and Shri R. Srinivasan, Assistant Administrative Officer, M/s Jawaharlal Nehru Aluminum Research Development and Design Centre, Nagpur – did not find any of the firms suitable. The then Managing Director of MSMCL, Shri Atual Pansare, IAS, despite the panel’s majority favouring the consortium, directed that the advertisement be re‑tendered with a scope of work and a pre‑tender meeting. He instructed preparation of a draft advertisement for four tasks: (A) NPV and NPV, (B) bid management for procurement of services, mining and value addition in joint venture for coal and non‑coal. Consequently, in its 161st meeting on 23 March 2007, the Board decided to scrap the offers received for the appointment of Financial Consultant on the ground of lacunae in those offers., In October 2007, an advertisement was purportedly issued inviting interested parties to attend walk‑in interviews for selection of the Financial Consultant. In the purported interview, M/s aXYKno Capital Services Private Limited was found to be the most suitable firm. However, during investigation, the records of the interview and the decisions taken were not found in the official documents of MSMCL. The prosecution relies on the statement of Witness 26, P. Y. Tembhare, General Manager (Operations), MSMCL, who stated that no document or details regarding the walk‑in interview conducted in October 2007 for selection of the Financial Consultant are available in the office records of MSMCL., The Investigating Officer, by letter dated 22 February 2018, requested details of the walk‑in interview for selection of the Financial Consultant. MSMCL responded on 23 February 2018 that no file exists containing the advertisement, the number of parties, their names, offers, terms and conditions, proceedings of the interviews or decisions. A further request dated 19 April 2018 received the same response on 26 April 2018. The Central Bureau of Investigation therefore highlighted the absence of any records in MSMCL regarding the selection of M/s aXYKno Capital Services Private Limited as indicative of opacity in the selection process., Submissions of the accused: On behalf of Accused Nos. 3 and 4, it is submitted that the supplementary agenda for the 164th Board Meeting of MSMCL, Item No. 3: Appointment of Financial Consultant, records that an interview was conducted on 16 October 2007 and M/s CISIL was selected for account outsourcing and bid management. This agenda, obtained by A‑3 under the Right to Information Act, is asserted to be of sterling quality. Further, a letter dated 14 December 2007, signed by Witness 32, Parmeshwar Puranmal Soni, General Manager (Operations), M/s aXYKno Capital Services Private Limited, states that the firm was appointed as Financial Advisor for one year at a monthly remuneration of Rs 30,000. The letter references the walk‑in interview held at MSMCL’s registered office on 16 October 2007 and confirms acceptance of the firm’s offer for financial consultancy, bid management and account outsourcing., The minutes of the 164th Board Meeting of MSMCL held on 29 December 2007 record that, as per approval of the Board in its 163rd meeting, an interview was conducted in October 2007 to initiate the appointment of a Financial Consultant and other officials, and M/s CISIL was selected to promote accounts service along with financial consultancy. The accused rely heavily on the statement of Witness 32, Shri Parmeshwar Puranmal Soni, who retired as Deputy Manager (Geology) from MSMCL on 31 October 2007 and was re‑engaged on a contractual basis as General Manager (Operations). He testified that an advertisement was published inviting walk‑in interviews, about seven to eight parties participated, and the Management Committee consisting of Shri D. G. Philip, then Managing Director of MSMCL, Shri Avinash Warjukar, then Chairman of MSMCL, and himself conducted the interview at MSMCL’s office in Udyog Bhawan, Nagpur. He recalled that Shri R. Ramakrishnan of M/s CISIL attended the interview as the last candidate and was found most suitable and competent, leading to his selection as the Financial Consultant., The accused contend that the non‑availability of records pertaining to the walk‑in interview conducted on 16 October 2007 is explained by the fact that the rented office of MSMCL at Udyog Bhawan was vacated in 2015 when MSMCL acquired its own premises. The earlier premises were subsequently occupied by Nagpur Metro Rail. Letters dated 13 April 2015 and 23 April 2015 from the Officer on Special Duty, Nagpur Metro Rail Corporation Limited, to the Managing Director of MSMCL requested the removal of files lying in the strong room and cabins of Udyog Bhawan. The accused submit that these letters show that some records were left in the earlier premises and that the Central Bureau of Investigation has not investigated this aspect., Learned Counsels for A‑3 and A‑4 referred to M.E. Shivalingamurthy versus Central Bureau of Investigation, Bengaluru (2020) 2 SCC 768, where the Supreme Court of India summarized principles applicable to applications seeking discharge. The Court held that if the evidence does not show that the accused committed the offence, there is no sufficient ground for proceeding with the trial, and that the trial judge must sift the evidence rather than act as a mere post office. The Court also emphasized that the record of the case at the stage of framing charges consists only of documents produced by the prosecution, and the accused cannot introduce new documents at that stage., Further reliance was placed on Sanjay Kumar Rai versus State of Uttar Pradesh & Anr., 2021 SCC Online SC 367, where the Supreme Court reiterated that the trial court, while considering a discharge application, must not act as a mere post office but must examine the evidence, consider broad probabilities, total effect of evidence and any basic infirmities, and may order further investigation if necessary., Reliance was also placed on Kanchan Kumar versus State of Bihar, Criminal Appeal No. 1562/22 decided by the Supreme Court of India on 14 September 2022, which held that although a roving inquiry at the stage of charge is not permissible, a simple and necessary inquiry for proper adjudication of a discharge application is required., Rebuttal by the Central Bureau of Investigation: Learned Deputy Legal Advisor for CBI Shri Sanjay Kumar submitted that on 15 January 2007, when interviews were conducted pursuant to the second advertisement, the then Managing Director of MSMCL had not favoured the selection of M/s Sanjeev Naidu and Associates in consortium with CISIL as Financial Consultant. The CBI referred to the application for discharge filed by Accused No. 5 Shri D. G. Philip, which stated that an advertisement was issued on the MSMCL website and the four previous partners interviewed earlier were telephonically invited to appear on 16 October 2007 for a walk‑in interview. The CBI argued that telephonically inviting the four firms – M/s Sanjeev Naidu and Associates in consortium with CISIL, M/s Kothari Rathi and Associates, M/s Feedback Ventures, and M/s Shah Baheti Chandak and Company – to the walk‑in interview demonstrates a conspiracy., The CBI also argued that M/s CISIL had no experience in mining consultancy. The advertisement dated 6 January 2007 called for presentations by prospective financial consultants at MSMCL’s registered office on 6 January 2007 at 11.00 a.m. It listed the work as accounts outsourcing, preparation of a business model, estimation of NPV and NPV of the corporation, and bid management, and stated that MSMCL reserves the right to accept or reject any or all offers without assigning any reason., A second advertisement dated 15 January 2007 invited presentations for business model preparation, estimation of NPV, and bid management, with similar terms and conditions. The CBI relied on the Certificate of Incorporation of Credit Innovative Strategies India Private Limited dated 9 January 2006 and the Memorandum of Association of aXYKno Capital Services Private Limited to show that the company had no experience in mining. It was submitted that the first assignment of CISIL as Financial Consultant of MSMCL was in consortium with Sanjeev Naidu and Associates in 2007., To demonstrate criminal conspiracy among the two public servants and Accused Nos. 3 and 4, the CBI presented several documents seized from the office of aXYKno, including minutes of the 164th Board meeting of MSMCL held on 29 December 2007 discussing a letter dated 26 December 2007 regarding payment to M/s CISIL, letters dated 17 July 2007 and 24 July 2007 from IDFC indicating that IDFC does not accept advisory assignments mid‑course, a letter dated 18 July 2007 from the then Managing Director of MSMCL to the Managing Director and CEO of Infrastructure Development and Finance Corporation, a letter dated 10 July 2007 from the Government of Maharashtra to the MD of MSMCL, a letter dated 10 July 2007 from Dr. Avinash Warjukar, Chairman of MSMCL, to the Minister for Industries, Government of Maharashtra, and various offer letters from Sanjeev Naidu and Associates and Kothari Rathi and Associates. The CBI argued that the presence of these documents in the Financial Consultant’s office suggests a conspiracy between the Financial Consultant and Accused Nos. 5 and 6., Learned Deputy Legal Advisor for CBI admitted that there is no record showing when these documents came into the possession of Accused No. 3, M/s aXYKno. The learned counsels for the accused, in response to the CBI’s rejoinder, argued that suspicion or doubts of conspiracy cannot form the basis for framing a charge, citing Union of India versus Prafulla Kumar Samal and Anr., (1979) 3 SCC 4., The learned counsels concluded that the evidence presented by the prosecution does not satisfy the threshold required to frame charges under the Criminal Procedure Code, and that the court should discharge the accused.
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Thus, on a consideration of the authorities mentioned above, the following principles emerge: That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial., They have submitted that photocopies were admittedly recovered in 2015, i.e., seven years after occurrence of the alleged offence and hence it would be incorrect to even prima facie presume that A-3/A-4 had knowledge of these documents in 2007-08 (the time period of alleged conspiracy). They have submitted that there cannot be any criminal conspiracy in appointment of A-3 company because the said letters are prior to A-5's joining as Managing Director of M/s MSMCL. They have submitted that even according to prosecution, CBI does not have knowledge as to when and at what stage these documents of M/s MSMCL came into the possession of A-3 company. There is nothing on record to remotely indicate that A-3/A-4 had knowledge about the official documents in 2007-08. It is the submission of the accused that the allegations of CBI are based on surmises, conjectures, assumptions and presuppositions which have no place in the eyes of law as per the well recognized doctrine of post hoc ergo propter hoc which means because of this, that. They have placed reliance on Vinod Tamchandra Ghosalkar vs. Manisha Ashok Chaudhary, 2019 SCC Online Bombay 455, Para 40; Sanjay Kumar Rai vs. State of Uttar Pradesh, 2021 SCC Online Supreme Court 367, Para 16‑17; The State by S.P. through Special Public Prosecutor CBI vs. Uttamchand Bohra, Criminal Appeal No. 1590 of 2021, Supreme Court dated 09.12.2021, Paragraph 21; Dilwar Babu Kurane vs. State of Maharashtra, (2002) 2 SCC 135, Para 12‑14; Yogesh vs. State of Maharashtra (2008) 10 SCC 394; and Pushpendra Kumar Sinha vs. State of Jharkhand, 2022 SCC Online 1069., Decision of the Court: In the considered opinion of this Court, the statement of PW‑32 Parmeshwar Puranmal Soni, the then Deputy Manager (Geology), MSMCL is very important for deciding whether there was any opaqueness in the appointment of M/s aXYKno Capital Services Private Limited as Financial Consultant of MSMCL. He has categorically stated that he was one of the members of the Committee which conducted interviews along with A‑6 Avinash Warjukar and A‑5 D.G. Philip. This is an important statement in favour of the accused. Version of PW‑32 is relied on by CBI otherwise he would have been an accused. PW‑32 has owned up a letter dated 14.12.2007 written to M/s aXYKno Capital Services Private Limited appointing the said company as Financial Consultant to MSMCL. In this letter, there is clear reference to the interviews conducted on 16.10.2007. The factum of conducting walk‑in interviews on 16.10.2007 is also borne out from the minutes of the 164th Board Meeting., PW‑26 P.Y. Tambhare in his statement recorded on 16.06.2015 has stated that the record showing conduct of interview in October 2007 for appointment of Financial Consultant wherein M/s CISIL was selected is not available in MSMCL office. However, when on 15.07.2015 statement under Section 161 of the Code of Criminal Procedure of PW‑32 Parmeshwar Puranmal Soni, General Manager (Operations) was recorded, he stated that he was one of the Members of the Managing Committee which conducted interviews for selecting Financial Consultant with A‑6 Avinash Warjukar and A‑5 D.G. Philip. He was not asked at that time why the records of the interview were not available in MSMCL. Statement of PW‑32 was also recorded on 13.10.2015, 24.02.2016, 18.03.2016, 09.08.2016 and 09.09.2016 but he was not asked about the records of the interview. If such a query was raised, he might have given the explanation., Now, during arguments, it was informed that the said Shri Soni is no more. Nobody could have anticipated in the year 2007 that after more than a decade, a criminal case will be registered and therefore the accused should falsely add about the walk‑in interviews conducted on 16.10.2007 in the appointment letter dated 14.12.2007/ Minutes dated 29.12.2007. Therefore, without even referring to Supplementary Agenda and other letters of Nagpur Metro received by the accused persons under the Right to Information Act, this Court is of the view that M/s aXYKno Capital Services Private Limited was appointed after a walk‑in interview was conducted in MSMCL by A‑6 Ashwani Warjukar., It is to be noted that even earlier, according to Shri Atual Pansare, IAS, Managing Director, MSMCL, majority of experts while examining the offers of four applicant companies had opined in favour of M/s aXYKno Capital Services Private Limited for appointment as Financial Consultant. The Managing Director had called for fresh advertisement as according to him only one reputed company had applied for bid management. He had not made any adverse remarks against the financial consultant M/s aXYKno Capital Services Private Limited. So, there is nothing unnatural or unusual in the appointment of M/s aXYKno Capital Services Private Limited as Financial Consultant of MSMCL as earlier also at least three financial experts were in its favour and the Accounts Officer of MSMCL had found its rates to be the lowest., Regarding rebuttal arguments of CBI, the calling of the earlier four applicants telephonically for the walk‑in interview does not show any special treatment to M/s aXYKno Capital Services Private Limited as besides calling the said company, three other companies were also invited and it is not CBI's case that telephonic invitation was sent to M/s aXYKno Capital Services Private Limited only. The submission of CBI that the financial consultant should have been an expert in mining is not borne out from the two advertisements where the emphasis was on financial expertise. The advertisement itself mentioned that MSMCL wants to appoint Financial Consultant/Firm for providing business model, estimate, the NPV of the Corporation on the basis of mineral wealth and manage the bid. Perusal of the advertisement calling for interviews on 15.01.2007 shows that the emphasis was on Financial Consultancy. There is no material to show that the Financial Consultant was lacking in Financial Consultancy., In the documents seized from the office of M/s aXYKno Capital Services Private Limited in 2015, there are letters written by the predecessor of A‑5 D.G. Philip also. However, the learned DLA for CBI fairly stated that there is no evidence as to when M/s aXYKno Capital Services Private Limited came into possession of those documents. Some of the letters were written by Sanjeev Naidu, who later became the consortium partner of M/s CISIL. Having possession of the letters written by the company which later became a consortium partner of M/s CISIL is neither surprising nor suspicious. Moreover, as submitted by CBI, as it cannot be said when these documents came into the possession of M/s aXYKno Capital Services Private Limited, nothing can be inferred against M/s aXYKno Capital Services Private Limited only upon seizure of these documents from its office during search in 2015 whereas its tenure as Financial Consultant had ended in January 2009., Therefore, this Court is of the opinion that there is no material on record to show grave suspicion that M/s aXYKno Capital Services Private Limited was selected in an opaque manner and without any walk‑in interviews being conducted on 16.10.2007., Whether M/s aXYKno Capital Services Private Limited was given exorbitant money? The submission on behalf of CBI is that MSMCL had approached SICOM Ltd., a Maharashtra State Public Sector Undertaking, earlier for seeking financial consultancy and SICOM had initially demanded a fee of Rs.15,00,000 but later reduced it to Rs.5,00,000 per assignment. This fee was considered very high by MSMCL and it was decided to appoint a Financial Consultant on contract basis at a fee of Rs.25,000 per month. However, M/s aXYKno Capital Services Private Limited, engaged as Financial Consultant for this purpose, was given a sum of Rs.1.57 Crores., CBI has submitted that by letter dated 14.12.2007, M/s aXYKno Capital Services Private Limited was informed that their engagement was for one year, on monthly remuneration of Rs.30,000 per month. However, M/s aXYKno Capital Services Private Limited, in its letter dated 26.12.2007 addressed to MSMCL, pointed out that the fee quoted for bid management and structuring the tender document was 1% of the bid value., During the 164th meeting of the Board of Directors of MSMCL held on 29.12.2007, it was recorded that as per approval of the Board in its 163rd meeting, interview was conducted in October 2007 to initiate the procedure of appointment of Financial Consultant and other officials. M/s CISIL was selected to provide accounts service along with financial consultancy in that interview. It was also recorded that in anticipation of Government approval, the offer letter to CISIL was given so that the tender documents for the coal block could be prepared., So far as increase of payment of remuneration to M/s aXYKno Capital Services Private Limited is concerned, it was recorded that the issue of payment was discussed in detail with the General Manager and Chairman and it was decided that after return of the Managing Director from Election Duty at Ballia, Uttar Pradesh, the issue would be discussed and finalized., According to CBI, no record is available to show the discussion between the Managing Director and Chairman of MSMCL for arriving at the terms and conditions of appointment of M/s aXYKno Capital Services Private Limited., However, the request of M/s aXYKno Capital Services Private Limited was acceded to by MSMCL and by its letter dated 18.01.2008 signed by D.G. Philip it was accepted that the consultant would be given 1% of the bid value or Rs.25,00,000 whichever is less from successful bidders subject to the condition that the amount to be paid would not be less than Rs.5 lakhs. It was also agreed that fee paid by the bidders for purchase of bid documents shall be shared between MSMCL and M/s aXYKno Capital Services Private Limited in the ratio of 1/3 to 2/3., PW‑26 T.Y. Tambhare, General Manager (Operations), MSMCL in his statement dated 26.02.2018 has stated that how the letter dated 26.12.2007 of M/s aXYKno Capital Services Private Limited was processed is not found anywhere in official records. He also stated that M/s aXYKno Capital Services Private Limited was given a total sum of Rs.1.57 Crores for preparation of tender documents, scrutiny of offer bids and to provide financial consultancy and bid management services., These are the allegations of CBI that the public servants showed undue favour to M/s aXYKno Capital Services Private Limited by paying an astronomical sum of Rs.1.57 Crores., Submissions of the Accused: The accused submit that it is fallacious to allege that M/s aXYKno Capital Services Private Limited was given exorbitant fees. They point out that CBI is trying to give the impression that only for Adkoli Coal Block the Financial Consultant was given Rs.1.57 Crores. However, the payment was for all four coal blocks namely Warora, Agarzari, Marki‑Zari‑Jamni‑Adkoli and Gare‑Palma‑II which were allocated by the Ministry of Coal in favour of MSMCL., It is further pointed out that for Adkoli Coal Block, the price of each bid document was Rs.50,000 and 30 such bid documents were sold, therefore Rs.15,00,000 were received by MSMCL by sale of those bid documents. Consequently, a sum of Rs.10,00,000 i.e., two‑thirds of the cost of tender documents was received by M/s aXYKno Capital Services Private Limited., It is further submitted that the learned counsel for A‑3 and A‑4 that M/s aXYKno Capital Services Private Limited had received Rs.25,00,000 as their consultancy charges as one of the conditions of their offer was that they would receive 1% of the bid amount or Rs.25,00,000 whichever is less. Thus calculated, M/s aXYKno Capital Services Private Limited received a sum of Rs.35 lakhs for bid management and financial services rendered to MSMCL for Adkoli Coal Block., It is further submitted that it has always been the case of M/s aXYKno Capital Services Private Limited that they asked for Rs.10,000 or 1% of tender value whichever is more as tax, duty, etc., extra for bid management and Rs.24.50 lakhs plus tax for business model., Further, their submission is that the offer of SICOM and the offer of M/s aXYKno Capital Services Private Limited are incomparable as the offer of the former was for one month’s engagement for preparing draft tender document for a single mine whereas the offer of the latter was for one year and for (a) aid in preparation of tender documents, expression of interest, joint venture agreement; (b) scrutinising financial bids of the bidders; (c) providing financial consultancy and bid management with deal structuring; and (d) accounts outsourcing., Further, the fee of SICOM was to be paid irrespective of outcome to MSMCL and the fee of M/s aXYKno Capital Services Private Limited was contingent upon the bid process becoming successful leading to selection of joint venture partner; the fees had to be paid only out of the sale proceeds of the tender documents; fees were based on success (contingent) 1% or Rs.25,00,000 whichever is less to be paid strictly from successful bidders; and the fee had to be paid only from the sale proceeds of tender documents, that too only two‑thirds of the total., It is the submission of the accused that the value of the subject matter pertaining to SICOM was just Rs.25,00,000 whereas the total value of assignments of M/s aXYKno Capital Services Private Limited had fetched Rs.700 crores i.e., more than 2800 times that of SICOM. Hence the offers and fees are incomparable., It is also the submission of the accused that the majority panel of experts which had examined the offer of M/s aXYKno Capital Services Private Limited earlier (which was 1% of tender value for bid management services and Rs.24.50 lakhs plus taxes for business model) had found the same to be the lowest. The accused have submitted that the offer given to them in the letter dated 14.12.2007 was not in accordance with their previous offer made on 15.01.2007 and that is why they addressed the letter dated 26.12.2007 to MSMCL pointing out terms of their services offered to MSMCL., The accused have submitted that earlier MSMCL had tried to find a joint venture partner and had signed a Memorandum of Understanding with a company but the MoU had to be cancelled later. It is their submission that if the fee of the Financial Consultant was not made contingent on successfully finding a joint venture partner, MSMCL would have lost the fee given to the Financial Consultant without any gain to MSMCL., Rebuttal by CBI: CBI submits that in the initial letter issued to the Financial Consultant dated 14.12.2007, all the assignments to be carried out by the Financial Consultant were mentioned in detail and the offer was just Rs.30,000 per month for financial consultancy service, bid management and account outsourcing. It submitted that in the letter dated 26.12.2007 given by the Financial Consultant to the Managing Director, MSMCL, Nagpur, the Financial Consultant requested a fee for bid management and structuring the tender document at 1% of bid value and was ready to negotiate. CBI further submits that A‑5 D.G. Philip, in his letter dated 18.01.2008, besides agreeing to payment of 1% of bid value or Rs.25,00,000 whichever is less for financial consultancy and bid management services with deal structuring, also gave a concession by offering sharing of process fees in the ratio of 1/3 to 2/3 respectively by MSMCL and the Financial Consultant from each bidder. CBI submits that neither in the letter dated 26.12.2007 nor in the earlier offer of the Financial Consultant was there any request for sharing the process fees in that ratio but still such a sharing was permitted and this in itself is sufficient to show conspiracy and criminal misconduct by public servants. It is further submitted that one draft joint venture agreement was prepared by the Financial Consultant common for all three coal blocks and considering this, the payments made to him were exorbitant. CBI referred to the offer of M/s Kothari Rathi & Associates, Nagpur and to document D‑79 to submit that MSMCL had received an offer far less in comparison to the demand by the Financial Consultant and still the said firm was not selected resulting in financial loss to MSMCL. CBI referred to a chart showing all the payments made to M/s aXYKno Capital Services Limited by MSMCL and to a letter dated 22.12.2008 written by A‑5 D.G. Philip to M/s aXYKno Capital Services Limited mentioning that the successful bidders objected to the payment of Rs.25,00,000 per bid for drafting of joint venture agreement as they considered it very high and that any legal expert could prepare the draft for not more than Rs.35,000. He asked the Financial Consultant that unless successful bidders agree to get the JV agreement drafted by him and take his financial consultancy and bid management services, the amount requested could not be paid. It is submitted that even the successful bidders found the fee called for by the Financial Consultant exorbitant. Reference is made to a letter dated 16.06.2016 written by the General Manager (Operations) to the Investigating Officer giving details of payments totaling Rs.1,57,21,734 to M/s aXYKno Capital Services Limited., In response to the rebuttal arguments of CBI, Shri Shri Singh, learned counsel for A‑3 M/s aXYKno Capital Services Limited and A‑4 R. Ramakrishna referred to document D‑44 to submit that clause XVI (2) of the bid documents provided that all charges for preparing the JV agreement and SPV including legal fee, stamp fee shall be borne by the selected bidder., He referred to Schedule 3 of the Joint Venture Agreement dated 21.11.2009, as per which M/s Sunil Hi‑Tech Engineers Ltd had agreed to pre‑incorporation contracts including advisory for transaction structuring and drafting of JV agreement dated 18.01.2008 by M/s aXYKno Capital Services Limited, the contract value of which was Rs.25 lakhs. He referred to document D‑79 where the offer of M/s CISIL, Nagpur for bid management for services was Rs.10,000 or 1% of tender value whichever is more, and submitted that if this offer of M/s CISIL had been accepted, MSMCL would have paid more than Rs.1.40 crores considering the tender value, but in lieu of that the financial consultant settled for sharing the price of tender documents in the ratio of 1/3 to 2/3 between MSMCL and itself. As per this understanding, the financial consultant only got Rs.10 lakhs as against Rs.1.40 crores which it quoted at the time of earlier advertisement., It was further submitted that the rates quoted by M/s CISIL, Nagpur were the lowest as noted by the accounts officer of MSMCL. To show the extraordinary services rendered by M/s aXYKno Capital Services Limited, the learned counsel referred to a letter dated 20.01.2007 written by the then Managing Director of MSMCL to the Secretary (Industries), Government of Maharashtra, mentioning that MSMCL had decided to develop the coal block through joint venture and had invited expression of interest to form joint venture with private entrepreneurs and in response to expression of interest of 38 captive coal blocks, only one party namely M/s Sainik Mining and Allied Services, New Delhi had submitted its offer for eight coal blocks for power generation. He submitted that as is evident from document D‑35, 131 bid documents were sold, which is evidence of successful efforts put in by M/s aXYKno Capital Services Limited. He further submitted that for the Adkoli coal block, bid documents worth Rs.15 lakhs were sold and the sale price was shared by MSMCL and M/s aXYKno Capital Services Limited in the ratio of 1/3 to 2/3 and M/s aXYKno Capital Services Limited had received Rs.10 lakhs from the sale of the documents of Adkoli coal block., To show the efforts put in by the financial consultant, reference was made to Mine Valuation for Adkoli coal block prepared by the financial consultant for Financial Year 2009 to 2031., The accused have submitted that by letter dated 05.02.2009, M/s MSMCL had communicated to the Principal Secretary (Industries), Government of Maharashtra, Mumbai about appointment and remuneration of A‑3 company. The letter mentioned that as per the appointment condition of M/s aXYKno, the consultant who prepared all the above tender document bids an amount equal to two‑thirds of the sale proceeds to be received from the sales of tender documents is to be paid to him for the services rendered, and accordingly an amount of Rs.1,25,66,999 has been paid to M/s aXYKno Capital Pvt. Ltd. for services rendered., Decision of the Court: This Court has considered the submissions made on behalf of CBI and the submissions made on behalf of the accused persons., To show that exorbitant fees of Rs.1.57 Crores were paid to Financial Consultant M/s aXYKno Capital Services Pvt. Ltd., CBI has sought to make a comparison with the offer given by SICOM. It is to be noted that M/s aXYKno Capital Services Pvt. Ltd. was not given this fee for Adkoli Coal Block only but it was the fee for preparing the bid documents, scrutiny of financial aspects of the bids, drafting of Joint Venture Agreements with the successful bidders for all other blocks also namely Warora, Agarzari, Marki‑Zari‑Jamni‑Adkoli and Gare‑Palma‑II Coal Block., For Adkoli coal block, the fee that was given to the Financial Consultant is Rs.35 lakhs and not Rs.1.57 Crores. Further, the offer of SICOM is not on record. CBI has only relied upon the minutes of the Board Meetings of MSMCL wherein such discussions have taken place regarding the fees and scope of work of SICOM. The comparison is solely based on the discussions noted in the minutes of the 158th to 161st Board Meetings of MSMCL. During investigation, CBI has not collected scope of work of SICOM, terms and conditions offered to SICOM, which mines were the subject matter of that offer, tenure of the work, number of mines for which services were sought by MSMCL and value of the mines in which services were sought by MSMCL. If this material was on record, only then it would have been possible to find out whether there can be any prima facie comparison between the offer of SICOM and the terms of M/s aXYKno Capital Services Private Limited. There is no request made by CBI either to SICOM or MSMCL to produce the said offer. CBI could have and should have brought on record the offer by SICOM, if it had to base its allegations by comparing the offer of SICOM and terms of M/s aXYKno Capital Services Private Limited., From the available matter on record, this Court is of the view that scope of work and offer of SICOM and scope of work and offer of M/s aXYKno Capital Services Private Limited are not comparable., It is noted earlier that at least half of the experts had earlier found M/s aXYKno Capital Services Private Limited to be suitable for appointment as Financial Consultant and according to the Accounts Officer of MSMCL, the rates offered by M/s aXYKno Capital Services Private Limited were the lowest. At that time, A‑5 D.G. Philip was not even in the picture., As noted earlier also, statement of Shri P.Y. Tambhare, General Manager (Operations) of MSMCL was recorded under Section 161 Cr.P.C. on 16.06.2015 and he has stated that no record (Board Minute Book or any other file) showing the decision of MSMCL on charging of fee 1% as asked by M/s aXYKno Capital Services Private Limited vide their letter dated 26.12.2007 is available., Statement of PW‑32 Parmeshwar Puranmal Soni, General Manager (Operations) was recorded under Section 161 Cr.P.C. on 15.07.2015 i.e., after recording the statement of PW‑26 Shri P.Y. Tambhare. PW‑32 was the General Manager (Operations) at the time D.G. Philip, MD had written the letter dated 18.01.2008 conveying M/s aXYKno Capital Services Private Limited revised fee payable for financial consultancy. PW‑32 would have been the best person to explain about the records in this regard. Neither on 15.07.2015 nor on other dates when the statement of PW‑32 was recorded i.e., on 13.10.2015, 24.02.2016, 18.03.2016, 09.08.2016 and 09.09.2016, the witness was asked about records showing the decision of MSMCL on charging of fee by M/s aXYKno Capital Services Private Limited. PW‑32 in his statement recorded on 09.09.2016 has also stated that M/s aXYKno, as per the letter dated 18.01.2008 was entitled to a payment equivalent to 1% of the bid value or Rs.25,00,000 whichever is less for taking care of the financial and bid management. Apart from the above, they are also eligible for sharing the process fee for scrutinising the offer bids received in the ratio of 2:3 and 1:3 with MSMC., Now it is informed during arguments that PW‑32 Parmeshwar Puranmal Soni is no more., At the stage of charge, this Court has only to see whether there is material on record to prima facie show that the fee paid to the Financial Consultant was exorbitant. This Court is otherwise not expert to review the quantum of the fee of the Financial Consultant for the duties assigned to it by MSMCL., It is already noted that the offer of SICOM is not available on record to compare scope of work offered to SICOM and scope of work performed by M/s aXYKno Capital Services Private Limited., It is already recorded that the payment of Rs.1.57 Crore to the Financial Consultant was for financial consultancy, preparation of bid documents, checking the financial bids and drafting four Joint Venture Agreements for all the four coal blocks and so far as Adkoli Coal Block is concerned, the payments were Rs.35 lakhs. These payments are in tune with the offer given earlier by M/s aXYKno Capital Services Private Limited and these rates were considered by the team of experts. None of the experts had stated that the fee quoted by the Financial Consultant was exorbitant.
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Three experts had found M/s aXYKno Capital Services Private Limited unsuitable for the job and other three experts had found it suitable. The then Accounts Officer of MSMCL Shri D.A. Meshram had found the rates to be the lowest. Shri Atual Pansare, the then Managing Director, MSMCL had found that the majority of experts were in favour of M/s aXYKno Capital Services Private Limited but had scrapped the entire process for the reason that there was some lacuna in those offers. At no stage, anyone questioned the fees as exorbitant. Rather, it was found to be the lowest by the then Accounts Officer of MSMCL Shri D.A. Meshram. So far as rate quotes by M/s Kothari Rathi and Associates are concerned, it was noted by the Accounts of MSMCL that these rates are not clear and therefore, cannot be taken into consideration. Perusal of fees quoted by M/s Feedback Ventures and M/s Shah Bahati Chandak and Company also shows that the fees quoted by M/s aXYKno was not exorbitant rather it was the lowest. Therefore, in the considered opinion of the Hon'ble Supreme Court of India, there is no material to prima facie make an opinion that the Financial Consultant was given exorbitant fee by MSMCL., Regarding sharing of proceeds of sale of bid documents, it has been made clear by Learned Counsel for the accused that the offer of M/s Sanjeev Naidu and Associates in consortium with CISIL was Rs 10,000 or 1 % of tender value whichever is more, including tax, DA and extra for bid management services. This offer was negotiated and reduced to sharing the proceeds of sale of bid documents in the ratio of one‑third to two‑thirds between MSMCL and the financial consultant. As a result of this arrangement the financial consultant has received Rs 10 lakhs; otherwise, as per the original offer the amount payable by M/s MSMCL would have been Rs 1.4 crores., So far as reliance by CBI on the letter dated 22‑12‑2008 written by A‑5 Deputy General Philip is concerned, its answer can be found in three letters dated 20‑12‑2008 written by all the three successful bidders including M/s SHEL agreeing with the terms regarding services and remuneration payable to M/s aXYKno as mentioned in the letter dated 18‑01‑2008 appointing M/s aXYKno as Financial Consultant (PDF 10616, 4007 and 4055). Therefore, in the opinion of the Hon'ble Supreme Court of India, in the facts and circumstances of the case, there is nothing on the record to show that the payment of Rs 35 lakhs in favour of the Financial Consultant for Adkoli Coal Block was an exorbitant offer. Business related to the other three coal blocks namely Warora, Agarzari and Gare Palma‑II are not the subject matter of the present charge‑sheet., Whether the appointment of M/s aXYKno Capital Services Private Limited was bad as it was without permission of the State of Maharashtra? According to CBI, the views of the State of Maharashtra regarding appointment of Financial Consultant by MSMCL are reflected in the letter dated 23/25‑01‑2007 written by Shri V.K. Jairath, Principal Secretary (Industry), Government of Maharashtra (D‑144, Page 113). In this letter, MSMCL was informed that the expenditure made on the honorarium paid to the advisors could be justified only when they have achieved targets of work assigned to them. MSMCL was directed to submit information about advisors appointed by MSMCL, purpose of their appointment and how much expenditure was incurred on them. Further, it was directed that action being taken for appointing financial advisor be stayed and no further step be taken without prior permission of the Government of Maharashtra., Further, according to CBI, MSMCL, vide its letter dated 01‑02‑2007, requested the Government of Maharashtra to reconsider its decision divesting MSMCL powers for appointment of advisors (D‑144, Page 32, PDF 6985)., MSMCL, vide a letter dated 26‑07‑2007 written by Shri A.K. Zade, Managing Director, MSMCL to the Principal Secretary (Industries), Industries, Energy and Labour Department, Mantralaya, Mumbai, requested an early approval for appointment of Financial Consultant to MSMCL. It was requested that alternatively the Government may form a committee consisting of representatives of the Government of Maharashtra from Industries Department, Finance Department, Mining Department and from MSMCL to finalize the parameters for the bids, scrutinize the bids, shortlist the parties for request for proposal, call the RFPs and finalize the parties for entering into MoU/JV with the selected parties (D‑152, Page 84, PDF 7443)., Prosecution is relying on the statement of PW 14 Shri V.S. Kulkarni, the then Under Secretary (Mining), Department of Industry, Energy and Labour, Government of Maharashtra, who has stated that the Government of Maharashtra had not given any approval to MSMCL for appointment of Financial Consultant (PDF 203)., The submissions of the accused are that MSMCL is a separate legal entity and a Government Company governed by its Memorandum of Association and Articles of Association approved by the Governor of Maharashtra and the Government of Maharashtra (D‑152, Page 121, PDF 7500). It is their submission that sub‑clause 27 of Clause B of the Memorandum of Association permitted MSMCL to appoint consultants. The clause reads: ‘To employ and pay experts, Indian or foreign consultants and other persons in connection with the prospecting, mining and exploitation of all kinds of minerals in respect of areas that the corporation will acquire for the purposes of mining and for executing several schemes of the company.’, Reliance is also placed on sub‑clause 19 of the Articles of Association authorising the Board of Directors to enter into contracts for the purposes of the company., The accused rely on the minutes of the 166th Board meeting of MSMCL (D‑41, Page 460, PDF 5163), approving the minutes of the 165th Board meeting dated 07‑02‑2008 (D‑41, Page 457, PDF 5160), thereby once again ratifying the appointment of M/s aXYKno Capital Services Private Limited as Financial Consultant. They have laid emphasis on the fact that this meeting was attended by Smt. Malini Shankar, IAS, Development Commissioner (Industries), Director‑Government of Maharashtra representative on the Board of MSMCL and other government nominees. During this meeting, the minutes of the 165th Board meeting were approved in which item 9 was the appointment of M/s CISIL as Financial Consultant and Bid Management Service Provider., The accused have also relied on the minutes of the 167th Board meeting which noted the appointment of M/s aXYKno Capital Services Private Limited as Financial Consultant and Bid Management Service Provider (D‑42, Page 86, PDF 5260). According to the accused, this meeting was again attended by Smt. Malini Shankar, Development Commissioner, IAS (Industries Department), a Government of Maharashtra representative on the Board., The accused have also relied on a letter dated 13‑06‑2008 (D‑55, Page 143, PDF 5749) addressed to the Principal Secretary (Industries), Industry, Energy and Labour Department, Government of Maharashtra, Mantralaya, Mumbai, in which it was mentioned that the tender bids were duly prepared in consultation with Financial Consultant M/s aXYKno Capital Services Private Limited, Nagpur, appointed for this purpose and approved by the Board of Directors of MSMCL, Nagpur in its Board Meeting., A copy of this letter was also submitted to the Personal Secretary to the Minister of Industry, Mantralaya, Mumbai for information with a request to bring the above proposal to the notice of the Minister for granting his convenient time, date and place of meeting so that the high‑power committee meeting can be convened to decide and approve the H‑1 bids of four coal blocks for mining., The accused have also placed reliance on a letter dated 05‑02‑2009 written by A‑5 Deputy General Philip to the Principal Secretary (Industries), Industries, Energy and Labour Department, Mantralaya, Mumbai, who was also a member of the High‑Power Committee, informing payment and appointment of A‑3 M/s aXYKno Capital Services Private Limited (D‑153, Page 400, PDF 7999). It was mentioned that the tender was prepared in consultation with M/s aXYKno Capital Services Private Limited, the consultant, and was approved by the Board of Directors and the Board resolved to invite tender bids for formation of a Joint Venture Company to produce power. The letter also stated that an amount of Rs 200.50 lakhs was received from the sale of tendered documents for mining of coal and setting up of a thermal power plant. As per the appointment condition, the consultant was to receive two‑thirds of the sale proceeds, and accordingly an amount of Rs 1,25,66,999 was paid to M/s aXYKno Capital Services Private Limited for services rendered., The accused have submitted that the Financial Consultant M/s aXYKno Capital Services Private Limited was appointed for a period of one year vide letter dated 18‑01‑2008 and its term had come to an end on 17‑01‑2009, but the Financial Consultant was requested to make a presentation in the meeting convened by the Chief Minister of Maharashtra regarding formation of a Joint Venture Committee with MSMCL for development of coal blocks allotted to it. The meeting dated 04‑05‑2009 was attended by the Chief Minister of Maharashtra, Additional Chief Secretary, Government of Maharashtra, Secretary Finance, Government of Maharashtra, Secretary Forest, Government of Maharashtra, Director (Industries), Government of Maharashtra, Director of Geology and Mining, Government of Maharashtra and PW‑22 Shri P.P. Soni, General Manager (Operations), MSMCL, Nagpur. In the minutes of this meeting (D‑155, Page 50‑51, PDF 82168217), it is recorded that a presentation was made by the Consultant of MSMCL, Mr Ramkrishnan and Mrs Hidal, whereby the Consultant highlighted the important points. The presence of Mr Ramkrishnan is recorded as representing M/s aXYKno Capital Services Private Limited, Nagpur., The accused have also referred to the Minutes of Meeting of the High‑Power Committee held on 04‑05‑2009 under the chairmanship of the Chief Minister for Joint Venture Agreement in respect of the coal blocks allotted to M/s MSMCL under the Government Dispensation Scheme of the Ministry of Coal (D‑137, Page 4‑6, PDF 6826). This meeting was attended by the Chief Under Secretary (Forests), Revenue and Forest Department, Principal Secretary (Financial), Principal Secretary (Industries), Additional Director (Industries), Director, Directorate of Geology and Mining, Nagpur, General Manager (Operations), MSMCL and the Managing Director, MSMCL. The minutes recorded that the meeting commenced with a presentation by the Financial Advisor appointed by the Corporation, which briefed the procedure adopted and fixed parameters for the selection of the H‑1 bidder for formation of a Joint Venture Partner with private industrialists to develop Adkoli, Varora and Agarzari coal blocks. The presentation also briefed the salient features of the Joint Venture Agreement., Therefore, the submissions of the accused are that MSMCL was within its rights, as per its Memorandum of Association and Articles of Association, to appoint a Financial Consultant and that the involvement and active participation of M/s aXYKno Capital Services Private Limited, Nagpur as Financial Consultant of MSMCL was known to all concerned up to the Chief Minister chairing the High‑Power Committee, which constitutes deemed approval., The Hon'ble Supreme Court of India has considered the material available on record to find out whether there is strong suspicion which can form the basis for drawing up a charge and refusing the discharge of the accused., As noted above, M/s MSMCL is a separate legal entity and also a government company governed by its Memorandum of Association and Articles of Association approved by the Governor of Maharashtra and the Government of Maharashtra. Sub‑clause 27 of Clause B of its Memorandum of Association enables it to employ and pay experts, Indian or foreign consultants and other persons, in connection with the prospecting, mining and exploitation of all kinds of minerals in respect of areas that the corporation will acquire for purposes of mining and for executing several schemes of the company (D‑152, Page 122, PDF 7502). Sub‑clause 19 of its Articles of Association authorises the Board of Directors to enter into such negotiations and contracts and to execute all such acts, deeds and things in the name and on behalf of the company as they may consider expedient (D‑152, Page 130). Therefore, the company was within its rights to appoint Financial Consultants., The post of General Manager (Finance) had lapsed in MSMCL and there was no Financial Consultant to guide MSMCL after allocation of four coal blocks by the Ministry of Coal in favour of MSMCL. Preparing bid documents, scrutiny of financial bids, assisting in declaring the successful bidder, drafting Joint Venture Agreements are complex matters. MSMCL had no financial capacity for handling the bidding and running a joint venture company. Though the final decision for approving the H‑1 bidder was with the High‑Power Committee, several complex financial intricacies had to be unraveled before that stage. Therefore, for timely mining of the coal blocks, the need for a Financial Consultant was imminent., The objections of Shri V.K. Jairath, Principal Secretary (Industry), Government of Maharashtra, as reflected in the letter dated 23/25‑01‑2007 (D‑144, Page 30, PDF 6983), were that the expenditure made on the honorarium paid to the advisors could be justified only when they had achieved the targets of work assigned to them. The objection was not to the appointment of a Financial Consultant per se but that the consultants be paid only after achieving the targets., In this case, payments were made to the consultant on receiving sale proceeds of the bid documents from bidders. Therefore, to that extent they had achieved the targets of work assigned to them., The 166th and 167th Board meetings of MSMCL were attended by Smt. Malini Shankar, Development Commissioner, IAS (Industries Department), a Government of Maharashtra representative on the Board (D‑41, Page 460, PDF 5163 and D‑42, Page 86, PDF 5260). During these meetings, the appointment of M/s aXYKno Capital Services Private Limited was ratified. Both Smt. Shankar and Shri Jairath were from the Industry Department., The Principal Secretary (Industries), Industry, Energy and Labour Department, Government of Maharashtra was informed vide a letter dated 16‑05‑2008 about the payment and appointment of M/s aXYKno Capital Services Private Limited as Financial Consultant without any objection from the Government of Maharashtra (D‑55, Page 4, PDF 5760)., The Principal Secretary (Industries) was again informed vide a letter dated 13‑06‑2008 about the appointment of M/s aXYKno Capital Services Private Limited (D‑55, Page 1)., The Financial Consultant made presentations in the meeting convened by the Chief Minister on 04‑05‑2009 (D‑155, Page 50‑51, PDF 8216‑8217)., The Financial Consultant also made presentations before the High‑Power Committee where all the senior officers of the State of Maharashtra were present (D‑137, Page 46)., The second allegation is that M/s SHEL, which was technically ineligible, was declared eligible., The allegations of CBI are that during the 165th Board Meeting of MSMCL held on 07‑02‑2008, the terms and conditions of the bid documents prepared by M/s aXYKno Capital Services Private Limited were discussed, finalised and approved (D‑41, Page 456, PDF 5159). Therefore, Shri R. Ramakrishnan, Deputy General Philip and Shri Avinash Warjukar were well aware of the minimum eligibility criteria laid down in the bid documents., A tender notice was published by MSMCL on 13‑02‑2008 and 14‑02‑2008 in various newspapers (D‑465, Page 1‑2, PDF 140)., One of the technical requirements of the bid was: the bidders should have been in operation for more than three years and should have a minimum of three years experience in actual mining of open cast or underground mines including survey and exploration and should be making profits in each of the immediately preceding three financial years (D‑34, Page 9, PDF 4605)., It was mentioned in the bid document that the proposals/offers shall be submitted in the office of M/s aXYKno Capital Services Private Limited, a private Financial Consultant, and not in the office of M/s MSMCL (D‑34, Page 15, PDF 4611)., The bid documents of M/s SHEL are at D‑28 (PDF 2611). At PDF 2930 are the details of key personnel of M/s SHEL. Shri Vinod Kumar and Shri Pradeep Kumar are shown as Survey Officers. According to the prosecution, these Survey Officers were not statutorily qualified, which was a requirement of the bid documents, paragraph 4(c) (D‑34, PDF 4605)., It is submitted that an unsigned tabulation sheet in the handwriting of Deputy General Philip was found in D‑33, pages 58‑60 (PDF 4337‑4339) which shows that with regard to the bidder Sunil Hi‑Tech Engineering Ltd. at serial No. 10, the following observations were made: a) does not have actual mining experience; b) is only an engineer and sub‑contractor; c) has only experience of civil construction in mine; d) does not have lease or sub‑lease in his name; e) does not have experience of survey and exploration; no documentary proof of third party., According to D‑5, Page 3 (PDF 710), which is the report of the Handwriting Expert, the aforesaid noting is in the handwriting of Deputy General Philip, the then Managing Director of MSMCL., During the search at the premises of M/s aXYKno Capital Services Private Limited on 31‑03‑2015, a copy of this spreadsheet was found (search list D‑310 and copy at D‑313, PDF 10614 and 10731). It was argued on behalf of CBI that it shows that it was in the knowledge of Shri R. Ramakrishnan that M/s SHEL was technically ineligible to bid for the tender., Reliance is placed on the statements of PW 18 S.S. Sharma, Deputy Manager, MECL, and PW 20 P. Ranganatheeswar, Deputy Director General of Mines Safety (HQ), Directorate General of Mines Safety, Dhanbad, to show that the bidder Sunil Hi‑Tech Engineering Ltd. was not technically eligible either individually or in consortium with M/s SBEA., In the statement of PW 80 M.S. Bhasin, Partner of M/s SB Engineering Associates, recorded on 20‑10‑2016, he stated that his firm was never engaged in actual mining, i.e., production of coal., Clause 9 paragraph 4(c) of the bid document (D‑34, Page 9, PDF 4605) provided that the bidder shall have adequate manpower consisting of statutory competent and qualified and experienced persons, engineers, geologists to successfully complete the mining activities and also to engineer, design, supervise and test and commission the coal mining company successfully., With regard to the list of key personnel provided by SHEL (D‑28, Page 319, PDF 2930), PW 80 Mahinder Singh Bhasin, the partner of SB Engineering, stated that there is no person in the list who is a mining engineer. Further, academic qualification showing qualification of any of the key personnel is not attached with the bid. The two surveyors attached with the bid are not DGMS‑certified surveyors., Reliance is also placed on the statement of PW 18 Shri S.S. Sharma, Deputy General Manager (Exploration, MECL), who stated that the key personnel mentioned in the bid document are not academically qualified in accordance with bid conditions: (a) no person is found qualified with academic qualification in mining engineering (degree/diploma) as well as with statutory certification by DGMS to work in the mine; (b) no person is found with statutory competency certificate to work as mine surveyor; (c) only one person, Shri S.S. Kulkarni, General Manager, Geology, is found with suitable qualification to work as a geologist., Reliance is also placed on the statement of PW‑20 P. Ranganatheeswar in this regard., It is to be noted that besides SHEL, seven other bidders for the Adkoli Coal Block were also not found to be qualified on technical parameters., The bidder at serial No. 1 Midst Integrated Ltd was not qualified as it was not in profit, not in operation for more than three years, and had losses after taxes. The bidder at serial No. 4 21st Century Infrastructure was also not qualified. The bidder at serial No. 8 Divya Dealer Ltd was not qualified as documentary proof of mining experience was not available. The bidder at serial No. 9 Jayaswal Neco Industries Ltd was also not qualified. The bidder at serial No. 11 Bhatia International Ltd was not qualified. The bidder at serial No. 12 Ricon Infrastructure Ltd was not qualified as mining experience proof was not attached, only hiring of HEMM. The 8th bidder at serial No. 13 Gopani Iron and Power (I) Private Ltd was not qualified because mining experience proof was not provided and the commercial bid was openly given, not in a sealed envelope., According to PW 18 Shri S.S. Sharma, Deputy General Manager Senior Manager (Mining), MECL, and PW 20 Shri P. Ranganatheeswar, Deputy Director (General) of Mines Safety (HQ), DGMS, Jharkhand, M/s SHEL as a consortium of M/s SB Engineering Association was not eligible as it was not in operation for more than three years, did not have a minimum of three years experience in actual mining of open cast or underground mines including survey and exploration, and was not making profits in each of the immediately preceding three financial years., As per the chargesheet, out of thirteen bidders, only the bid of one M/s Gopani Iron and Power Limited was rejected on technical grounds and other bids were declared technically qualified., However, there is no record to show such qualification or disqualification. There is nothing to show how Sunil Hi‑Tech Engineering Ltd., which was found ineligible by Deputy General Philip, was technically qualified. There is nothing to show how the other seven bidders, which were found to be ineligible, were declared qualified., Commercial bids were opened on 10‑04‑2008 and Sunil Hi‑Tech Engineering Ltd. was found to be the highest bidder as they offered the highest sweat money payable to MSMCL. It is alleged that this meeting was attended by Shri R. Ramakrishnan, who also remained silent regarding the ineligibility of M/s SHEL (D‑45, Page 1‑8, PDF 5332‑5339)., It is submitted on behalf of CBI that even in the 167th Board Meeting of MSMCL held on 24‑04‑2008 (D‑42, Page 84, PDF 5261), when the decision to recommend H‑1 was taken, there is no justification or deliberation as to how and why certain bidders, including M/s SHEL, who were earlier considered ineligible, subsequently became eligible on the technical requirement. This meeting was also attended by Shri R. Ramakrishnan., Vide a letter dated 16‑05‑2008, A‑5 Deputy General Philip requested the Principal Secretary (Industries), Industries, Energy and Labour Department, Government of Maharashtra, Mantralaya, Mumbai, for moving the Chairman of the High‑Power Committee to convene a meeting for approval of the H‑1 bids received for mining of four coal blocks, enclosing the bid document for Joint Venture for carrying out survey, exploration and mining activities at the four coal blocks allocated to MSMCL (D‑534, Page 167)., Again, the proposal dated 13‑06‑2008 (D‑153, Page 112, PDF 7699) was sent by A‑5 Deputy General Philip to the Principal Secretary, Department of Industry, Government of Maharashtra, for obtaining approval of the H‑1 bidder in respect of the coal blocks including Adkoli Coal Block., Vide a letter dated 24‑08‑2008, A‑5 Deputy General Philip replied to the queries raised by Shri Vijay Kumar Aggarwal, Additional Chief Secretary (Finance) and Member of the High‑Power Committee, Government of Maharashtra (D‑153, Page 205)., Vide a letter dated 23‑01‑2009, A‑5 Deputy General Philip sent the draft Joint Venture Agreement to the Principal Secretary (Industries), State of Maharashtra (D‑140, Page 28‑29, PDF 6922)., It is to be noted that the role of A‑5 Deputy General Philip came to an end on 26‑02‑2009 as he retired from the service on that date., This proposal was processed in the file of the Department of Industry, Government of Maharashtra and considered in the High‑Power Committee meetings held from time to time., The High‑Power Committee, in the meeting held on 04‑05‑2009, recommended selection of the H‑1 bidder along with the draft JV Agreement and proposed that a proposal be submitted to the Infrastructural Committee of the Cabinet for approval (D‑155, Page 50‑51, PDF 8216‑8217). In this meeting, a presentation was made by Shri R. Ramakrishnan but he concealed that M/s SHEL was technically ineligible to bid for the tender., Subsequently, the matter was placed before the Infrastructural Committee of the Government of Maharashtra, which approved the proposal relating to the selection of H‑1 bidders and the formation of a Joint Venture Company with the respective Joint Venture partners. The committee also approved the proposed draft JV agreement., The Department of Industry, Government of Maharashtra, vide a letter dated 01‑08‑2009, conveyed the decision taken by the Infrastructural Committee on 18‑06‑2009 to the Managing Director, M/s MSMCL., After receiving approval of the Government of Maharashtra, Niranjan Kumar Sudhanshu, the then Managing Director, MSMCL, issued a letter of intent dated 03‑08‑2009 to M/s SHEL (D‑29, Page 176)., Prosecution is relying on the statement of PW 12 Azeez M. Khan, who was Principal Secretary (Industry) in the Industries, Energy and Labour Department, Government of Maharashtra, who has stated that neither Deputy General Philip nor the then Chairman of MSMCL, Shri Warjukar, nor the Financial Consultant nor any other representative of MSMCL ever disclosed to the High‑Power Committee at any point of time about the ineligibility of Sunil Hi‑Tech Engineers regarding technical qualifying requirements (PDF 180)., So far as the second allegation is concerned, the chargesheet concludes that A‑5 Deputy General Philip, the then Managing Director, despite knowing that M/s SHEL was not meeting the technical criteria and having noted his conclusion in the technical evaluation sheet, in criminal conspiracy with A‑6 Avinash Warjukar, the then Chairman of M/s MSMCL, A‑2 Sunil Ratnakar Gutte, Director, A‑1 M/s SHEL and A‑4 Shri R. Ramakrishnan, Financial Consultant, A‑3 M/s aXYKno Capital Services Private Limited, with a view to cause undue pecuniary advantage to SHEL, qualified it technically and also six other bidders who were earlier not found as technically eligible., The submissions of A‑6 Avinash Warjukar are that, as per CBI's case, A‑5 Deputy General Philip had noted that several bidders besides M/s SHEL were technically ineligible (apatra) (D‑36, PDF 4657) and without any justification on record, all of them were declared technically eligible (patra), paving the way for opening of their financial bids., He further submits that not only with regard to the Adkoli coal block but also for other coal blocks, bidders which, according to A‑5 Deputy General Philip, were technically ineligible were later declared technically eligible., For the Warora coal block, nine out of fourteen bidders were, according to A‑5 Deputy General Philip, ineligible (D‑33, PDF 4341). However, later on the commercial bids of all the ineligible bidders (except two) were opened (D‑36, PDF 4657)., He further submitted that for the evaluation of the bids for selection of Joint Venture Partners, the Government of Maharashtra had empowered the Managing Director of M/s MSMCL to scrutinise the bids received by M/s MSMCL from an administrative and financial viewpoint. The Managing Director was directed to prepare a comparative chart and submit it to the High‑Power Committee (D‑143, PDF 7041‑7015)., It is further submitted that although there is no Terms of Reference, Scope of Work, or Report/Findings of the Tender Committee, the records show that on 14‑03‑2008, during the meeting of the Tender Committee, thirty‑eight technical bids from twenty parties for three coal blocks namely Agarzari, Warora and Adkoli were opened in the presence of all the bidders (D‑33, PDF 4503). The Tender Committee checked only the names of parties, EMDs submitted, and dates of DDs in the presence of all the bidders (D‑33, PDF 4504). It was informed to the bidders that the technical bids would be analysed and examined properly at a later stage (D‑33, PDF 4504).
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Reliance is placed on statements of PW-29 and PW-32 (Members of the Tender Committee) and statements of PW-93 to PW-100 (Representatives of the bidders present during the opening of technical bids) to show that technical bids were not scrutinised on 14 March 2008., Further, reference is made to D-36, Page 195 PDF 4650 which are the minutes of the Management Committee dated 10 April 2008. At page 199, the minutes record that the Managing Director then openly announced the names of the parties who were technically qualified and disqualified and the reasons for their disqualifications., The case of A-6 Avinash Warjukar is that the High‑Power Committee had directed and empowered the Managing Director, Maharashtra State Mining Corporation Limited (MSMCL) to scrutinise bids from an administrative and financial viewpoint. The Tender Committee had only checked names of parties, Earnest Money Deposits submitted, and dates of Demand Drafts in the presence of the bidders. Final scrutiny was made by A-5 Deputy General Philip, which is clear from his handwritten note, and it is A-5 Deputy General Philip who declared the results of technical evaluation on 10 April 2008 in the meeting of the Management Committee., Submissions of A-5 Deputy General Philip: The time limit mentioned by the Ministry of Coal in the milestone chart had already crossed and it was therefore necessary to expedite and complete the process of coal mining activities to avoid cancellation of the coal blocks by the Ministry of Coal, Government of India, New Delhi. He stated that with regard to Agarzari and Warora coal blocks, there was an apprehension of forfeiture of bank guarantee of Rs 13 Crores in case the time limits were not honoured., Regarding the allegation that A-5 Deputy General Philip declared M/s SHEL as technically eligible whereas the company was technically ineligible, the submissions of the accused are as follows: The Managing Director while examining the technical bid document submitted by M/s Sunil Hitech observed that M/s Sunil Hitech had submitted the technical bid document in consortium with M/s SB Engineering Associates because it did not have the required mining experience of three years or more with its own self or standalone. On examination it was found that M/s Sunil Hitech had submitted the experience documents of M/s SB Engineering Associates pertaining to its mining operations with the technical bid documents, but did not submit any memorandum of understanding or agreement with M/s SB Engineering Associates to prove that a consortium existed between them. In absence of any MOU or agreement, it cannot be held that M/s SB Engineering Associates consented or permitted M/s Sunil Hitech to use its mining experience. Therefore, M/s Sunil Hitech is considered an independent competing bidder without the consortium experience of M/s SB Engineering Associates. The company was not eligible technically as it did not have mining experience for three years. These observations are noted by the Managing Director in his own handwriting in the file of Jamni Jhari Adkoli Coal Block as follows: Sunil High Tech + S.B. Engineering a) Does not have actual mining experience. b) Is only an engineer and subcontractor. c) Has only experience of civil construction and mines. d) Does not have lease or sub‑lease in its name. e) Does not have experience of survey and exploration., As per the Government of Maharashtra, Industry Department dated 30 April 1994, pertaining to the guidance procedures to be followed regarding the two‑envelope system, it is clear that in the technical bid envelope, if any shortcoming is found or supporting documents are not attached, permission to submit or furnish such documents can be given to the bidder up to the time of opening of their commercial bid offers, so that the best competitive offers are received. In accordance with the above resolution and the terms and conditions of the tender documents, M/s Sunil Hitech and other bidders who were found technically ineligible due to shortcomings in their technical bid documents were informed telephonically that to become technically eligible they should clear their shortcomings by submitting the required documents., After learning of its ineligibility, M/s Sunil Hitech submitted a Memorandum of Understanding with M/s SB Engineering Associates allowing it to use the latter’s mining experience for the purpose of winning the joint‑venture partnership. M/s Sunil Hitech also made its presentation on 10 April 2008 before the Management Committee of MSMCL, before opening of the commercial bids., The Management Committee, after verification of the consortium MOU/agreement with M/s SB Engineering Associates and the presentation made by M/s Sunil Hitech and other bidders on 10 April 2008, unanimously decided that M/s Sunil Hitech in consortium with partner SB Engineering Associates was technically eligible for opening of their commercial bids, as the shortcoming of non‑submission of consortium MOU/agreement was removed, resulting in the existence of a consortium. The Committee also decided that since MSMCL is a mining company with more than 30 years of mining experience, the compulsory minimum three‑year experience criterion for bidders could be relaxed for all bidders to ensure the success of coal block mining. MSMCL, being financially weak, needed to generate sufficient financial resources through a competitive tender bid procedure and obtain the highest offer of “sweat money” per metric ton of the geological reserves. With this concept and the decision of the Management Committee and the Board of Directors of MSMCL, including the Financial Consultant M/s aXYKno, the concept of sweat money was introduced in the competitive tender bids. Consequently, the minimum three‑year mining experience criterion was relaxed for bidders who were financially fit and eligible. Out of 13 competitive bidders, 12 bidders except one were found financially fit and eligible for opening of their commercial bids. Therefore, the Management Committee decided to qualify and open the commercial bids of all 12 bidders for Jamni Jhari Adkoli coal blocks after observing their presentation on 10 April 2008., The allegations in paragraph 16.4.29 of the charge sheet are that the last date for submission of bids was 14 March 2008. In the bid documents submitted by M/s SHEL, it is revealed that the bid was submitted through a forwarding letter dated 13 March 2008 in a spiral‑bound book. However, there is a Memorandum of Understanding dated 14 March 2008 between M/s SHEL and M/s SB Engineering Associates describing the role of both parties regarding development of the Adkoli coal block. The MOU was not part of the spiral‑bound book containing the bid but was attached to the book through a stapler pin. The bid was to be submitted by 1.00 pm on 14 March 2008, and the technical bids were to be opened at 4.00 pm on the same day. It is therefore difficult to assume that M/s SHEL entered into an MOU with M/s SB Engineering Associates, got it documented on stamp paper, duly notarised and then submitted it in the office of MSMCL before 1 pm., Submissions of the accused in this regard are: The allegation that the proposal dated 13 June 2008 was devoid of crucial details is replied as follows. The consortium MOU dated 14 March 2008 was not part of the spiral‑bound book submitted in the sealed technical envelope of the technical bid by M/s Sunil Hitech, which was opened on 14 April 2008 at 4 pm by MSMCL for scrutiny of technical bids. The bid was submitted by M/s Sunil Hitech through a forwarding letter dated 13 April 2008. The consortium MOU was attached to the spiral‑bound book through a pin. As the consortium MOU is dated 14 March 2008, it did not exist prior to its execution and therefore could not have been attached to a bid document forwarded on 13 April 2008. Consequently, the prosecution’s reasoning that it is difficult for M/s Sunil Hitech to have entered into an MOU with M/s SB Engineering Associates, documented on stamp paper, notarised and submitted before 1 pm on 14 March 2008 is unfounded., The prosecution has completely failed to consider that the mining experience of M/s SB Engineering Associates is not considered, which makes M/s Sunil Hitech eligible technically in consortium with its partner M/s SB Engineering Associates. Moreover, M/s SB Engineering Associates has mining experience having worked with various organisations for mining activities. The experience of the consortium partner is also considered the experience of M/s Sunil Hitech for the purpose of executing the exploitation and mining of the coal block jointly by both partners. [D‑28, P‑1, E‑2623]., To show that M/s SB Engineering Associates had mining experience, the accused have placed reliance on D‑28, Page 12, PDF 2623. Annexure 2 – Bidders Experience Information (Last 5 Years) details are as follows: 1. Sunflag Iron and Steel Co. Ltd. – Open excavation, construction of RCC box and drivage of a pair of inclined shaft, valued at Rs 35,127,325 for a mine at Belgaon, Chandrapur (Apr‑07 – expected completion Mar‑08). 2. Sunflag Iron and Steel Co. Ltd. – Construction of air shaft and fan house building, valued at Rs 45,726,75 for a mine at Belgaon, Chandrapur (May‑07). 3. Sons Belgaon Construction Pvt. Ltd. – Construction of two 1,200 m internal‑diameter shafts for tunnel work at Ghodazari Right Bank Canal project, valued at Rs 12,078,892 (Jun‑07 – Jan‑08). 4. Shaktikumar M. Sancheti Ltd. – Construction of air shaft and fan house building for Western Coal Fields Ltd., Ballapur Area, Sasti mine, valued at Rs 8,341,103 (Mar‑04 – Dec‑05). 5. Shaktikumar M. Sancheti Ltd. – Open excavation, construction of RCC box and drivage of a pair of inclined shaft for Momet Ispat Ltd., valued at Rs 35,127,325 (Apr‑03 – Jun‑04)., Therefore, the submission of A‑5 Deputy General Philip is that M/s Sunil Hitech was given a chance to file the required consortium MOU/Agreement before opening of commercial bids and after receiving its MOU with SB Engineering Associates, SHEL became technically eligible and its bid was opened. It is also his case that the criterion of minimum three years of mining experience was relaxed for all bidders who were financially fit and eligible., Submissions of A‑3 M/s aXYKno Capital Services Private Limited and A‑4 R. Ramakrishna: They have relied on Office Memorandum dated 25 November 2002 issued by the Central Vigilance Commission on the subject of appointment of consultants, wherein paragraph 4, page 10 provides that the role of the consultant should be advisory and recommendatory and that final authority and responsibility should rest with the departmental officers only., The Bombay High Court, in the case of CBI versus M/s LANCO Infratech Ltd and Others, Criminal Appeal No. CBI/34/2021, RC No. 220‑2015‑E0012, noted that this circular was relied on by the Central Bureau of Investigation in the charge sheet for giving relief to the accused M/s aXYKno Capital Services Private Limited. The circular is therefore of sterling quality and the accused can rely upon it at the stage of charge also., The accused have relied on a letter dated 25 January 2007 written by the Government of Maharashtra to the Managing Director of MSMCL (D‑144, Page 31, PDF 6987) as per which MSMCL was directed not to take any decision on the expression of interest invited by them and that those records be sent to the Industry Department., The accused have relied on a letter dated 1 September 2007 (D‑144, Page 61, PDF 7014) as per which the Government of Maharashtra issued a resolution and constituted a High‑Power Committee to scrutinise bids received under the expression of interest, to examine financial matters in the context of coal blocks allocated to MSMCL, and to make a Memorandum of Understanding and establish a joint venture for mineral development after the Managing Director of MSMCL had scrutinised the bids from an administrative and financial viewpoint and prepared a comparative chart. The Managing Director of MSMCL was Member Secretary of this committee., It is the submission of the accused that they were appointed as Financial Consultant (D‑311, Page 31, PDF 10648) to scrutinise the offer bids received by sharing the process fees in the ratio of one‑third to two‑thirds respectively by MSMCL, Nagpur and M/s aXYKno Capital Services Private Limited (CISIL) from each bidder for deciding the highest or lowest eligible bidder., It is further submitted by the accused that the proposal had to comprise two parts, viz. technical and commercial bids (Cover‑1 and Cover‑2 respectively) to be submitted in the office of M/s aXYKno Capital Services Private Limited (D‑44, PDF 5301)., It is further submitted that a corrigendum was issued by the Managing Director of MSMCL providing that the complete tenders be submitted at the registered office of MSMCL in the sealed tender box kept for the purpose (D‑33, PDF 4529)., The accused have relied on D‑33, Page 223, PDF 4506 which are the minutes of the meeting of the Tender Committee held on 14 March 2008. In this meeting, only the demand drafts for Earnest Money Deposits submitted by different parties with the name of the party, amount of demand draft and demand draft number were checked and it was decided that the technical bids would be analysed and examined at the level of the Tender Committee itself., The accused have relied on the statements of PW‑32 and PW‑27 to submit that the Tender Committee was constituted by verbal instructions and not by any written order. Further, they have stated that they did not conduct any technical evaluation of the bids. Technical evaluation appears to have been carried out by the Managing Director between 15 March 2008 and 7 April 2008., It is further submitted that the Patra/Apatra (Eligible/Ineligible) sheet is in the handwriting of A‑5 Deputy General Philip (D‑33, Page 5861, PDF 4340‑4343). They have further submitted that according to D‑310, PDF 10614, a photocopy of the Patra Sheet in the handwriting of A‑5 Deputy General Philip was found in the office of M/s aXYKno Capital Services Private Limited which is relied on by the Central Bureau of Investigation to show knowledge of A‑3 and A‑4 about the technical ineligibility of M/s SHEL. They have submitted that this document was seized only in 2015 (not in 2008). Mere recovery from the office of A‑3 does not prima facie indicate contemporaneous knowledge of technical ineligibility., Those bidders who were found technically qualified were informed to appear in the office of M/s aXYKno Capital Services Private Limited for presentation on 10 April 2008 (D‑369, Page 224, PDF 11833). The accused have further submitted that the Management Committee opened the commercial bids of all the technically qualified bidders on 10 April 2008 (D‑36, Pages 1‑9, PDF 4650). It is the submission of the accused that the record of proceedings dated 10 April 2008 makes it clear that the list of successful technical bidders was announced in the meeting by the Managing Director himself., There is no material to suggest that A‑3 and A‑4 were aware of the list of successful bidders prior to 10 April 2008. It is further submitted that evaluation of technical bids was beyond the scope of work contracted by A‑3 and A‑4., It is their submission that there is no material to show that technical bids were evaluated by the Management Committee. They have further submitted that there is no mention about M/s SHEL and other six bidders being technically disqualified. Reliance is placed on statements of PW‑27 and PW‑28 to submit that the Management Committee did not discuss ineligibility in the light of comment of A‑5. The accused have submitted that the 167th Board Meeting Item No. 3 discussed in detail and approved to send a proposal to the High‑Power Committee (D‑42, Page 87, PDF 5261). The accused have submitted that on 13 June 2008, D‑153, Page 106, PDF 7693, the proposal was sent by A‑5 Managing Director to the High‑Power Committee as per the procedure prescribed in the Government Resolution., On 22 July 2008, D‑145, Page 37, PDF 7079, the High‑Power Committee was reconstituted and procedure changed with respect to scrutiny of bids but the process of opening the technical bids and financial bids was already completed., The submission of the accused is that the Central Bureau of Investigation is alleging that A‑3 suppressed the effect of ineligibility of Sunil Hitech from the High‑Power Committee in its presentation made on 4 May 2009 (D‑137, Page 4, PDF 6825). The submissions of the accused in this regard are that there is nothing on record to suggest A‑3 and A‑4 were aware or had knowledge of ineligibility or eligibility of A‑1 during the time when the process was being carried out by MSMCL., A‑3 had no mandate to scrutinise or comment on technical ineligibility of A‑1 or any bidder. When the Board of MSMCL, i.e., the employer of A‑3, had finalised the selection of the joint‑venture partner, A‑3 had no reason to doubt it or highlight it at any time., The presentation before the High‑Power Committee was not about eligibility or ineligibility at all but regarding accounting and taxation impact on the joint‑venture company., The accused have relied on Pimpri Chinchwad New Township Development Authority versus Vishnudev Cooperative Housing Society & Others, Civil Appeal No. 7649 of 2018, decided by the Honorable Supreme Court on 3 August 2018, where it is held in paragraph 50 that: “So long as the decision based on internal deliberation is not approved and communicated by the competent authority as per the procedure prescribed, such noting does not create any right in favour of the person concerned nor does it partake the nature of any legal order… Such noting or deliberation are always capable of being changed, amended or withdrawn by the competent authority.”, The accused have also relied on Sethi Auto Service Station and Another versus Delhi Development Authority and Others, (2009) 1 SCC 180 where in paragraph 14 the Honorable Supreme Court held that: “It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of other officials of the Department and for the benefit of the final decision‑making authority… Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision‑making authority, gets his approval and the final order is communicated to the person concerned.”, Submissions on behalf of A‑2 Sunil Ratnakar Gutte: The accused has filed (i) an application under Section 218 of the Code of Criminal Procedure praying for separation of their trial from the trial of other accused persons, (ii) an application under Section 156(3) read with Section 173(8) of the Code of Criminal Procedure for directions of this court for conducting further investigation in the matter and (iii) an application under Section 227 read with Section 239 of the Code of Criminal Procedure seeking discharge., Regarding the declaration that the consortium of M/s SHEL and M/s SB Engineering Associates was technically eligible, it is submitted that the note written by Deputy General Philip which is relied on by the Central Bureau of Investigation to say that the consortium was not technically qualified was not an official note and was not reflective of the views of MSMCL on the technical expertise of the company in consortium with M/s SB Engineering Associates., It is submitted that the bid of the company was approved by the Government of Maharashtra after it was processed by a qualified and experienced person., The accused have relied on the reply given by MSMCL to the Government of Maharashtra, received under the Right to Information Act, to submit that according to MSMCL, the consortium of SHEL and SB Engineering Associates was technically qualified., Reliance is placed on the definition of “mine” as defined in the Mines Act, 1952 which is as follows: “Mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes: (i) all borings, boreholes, oil wells and accessory crude conditioning plants; (ii) all shafts, in or adjacent to and belonging to a mine; (iii) all levels and inclined planes in the course of being driven; (iv) all opencast workings; (v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine of minerals or other articles; (vi) all adits, levels, planes, machinery works, railways, tramways and sidings in or adjacent to and belonging to a mine; (vii) all protective works being carried out in or adjacent to a mine; (viii) all workshop and store situated within the precincts of a mine and used primarily for purposes connected with that mine; (ix) all power stations, transformer sub‑stations, converter stations, rectifier stations and accumulator storage stations for supplying electricity solely or mainly for the purpose of working the mine; (x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine; (xi) any premises in or adjacent to and belonging to a mine where any process ancillary to the getting, dressing or operation for sale of minerals or of coke is being carried on.”, They have further relied on the definition of “mining operations” as per Section 3(d) of the Mines and Minerals Development and Regulation Act, 1957, which is defined as: “any operation undertaken for the purpose of winning any mineral.”, The accused have relied on a Completion Certificate given to them by Monnet Ispat Limited dated 25 August 2004 and a Certificate given by M/s Anish Ahmad Khan dated 1 October 2000 (D‑28, PDF 2938 onwards)., The accused have also relied on D‑588, Page 1, PDF 8564 which is a letter dated 26 December 2017 written by Mahinder Singh Bhasin of S.B. Engineering Associates to the Investigating Officer stating that the firm has been carrying out actual mining activities since 1993, i.e., open‑cast and underground mining including survey and exploration, along with other projects. The letter refers to certificates given by M/s Anish Ahmad Khan for work of Western Coalfields Limited and certificates given by Shantikumar M. Sancheti for work of Western Coalfields Limited and South Eastern Coalfields Limited as well as for Mannat Ispat Limited. The letter states that the firm has experience of actual mining work and operation., It is further submitted by the accused that the Central Bureau of Investigation did not conduct any investigation of the organisations or persons who had issued these certificates and merely relied on government officers who had no knowledge of the precise nature of work carried out by M/s SHEL and thereby confirmed the Central Bureau of Investigation’s view of actual mining., It is submitted on behalf of the accused that eight of the eleven applicants for the Agarzari coal block were declared “Apatra” (ineligible) to form the joint‑venture company as per the unsigned sheet (D‑33, Page 54, PDF 4333). One of the ineligible companies was Indu Projects Ltd (Hyderabad) for which A‑5 Deputy General Philip made a hand note stating: (1) No experience of actual mining, (2) No lease of ore in the name of the consortium, (3) Only experience of removal of overburden by consortium partner who is a contractor, (4) Company is basically an infrastructure company with no experience of mining. Hence not eligible., The alleged ineligible bidders, as per the list, included M/s Adani Enterprises Ltd which was finally made the joint‑venture partner for the development of the Agarzari coal block. This company was declared ineligible as mining experience proof was not provided with its bid documents. However, there is no allegation that either M/s Adani Enterprises Ltd or the public servants or the consultant conspired or cheated to get M/s Adani Enterprises Ltd selected as the joint‑venture partner of MSMCL for the development of the Agarzari coal block., Similarly, it is submitted that with respect to the Warora coal block, ten out of the fifteen applicants were declared ineligible to form the joint‑venture company as per the unsigned sheet (D‑33, Page 62, PDF 4341). But bids of twelve bidders were opened., Concerning the Adkoli coal block, it is submitted that out of thirteen applicants eight were declared ineligible to form the joint‑venture company as per the unsigned sheet (D‑33, Page 58, PDF 4337). Yet bids of twelve bidders were opened., It is submitted that for these three coal blocks, in the details of bids sent by MSMCL to the Principal Secretary it was informed that out of thirty‑eight bids, thirty‑three were eligible/patra. This shows that the alleged unsigned note of A‑5 Deputy General Philip was never considered while forwarding the names of technically qualified companies to the Principal Secretary and it is not the case of the Central Bureau of Investigation that the companies which were technically unqualified and were considered technically qualified by A‑5 Deputy General Philip, including M/s Adani Enterprises Ltd, conspired with the financial consultant and government officials to get the coal block allocated. The Central Bureau of Investigation has only focused on the accused herein., It is also the submission of the accused that reliance on the aforesaid note creates a dire circumstance that all bidders who were declared ineligible as per the undated note of A‑5 Deputy General Philip were later qualified only in pursuance of a criminal conspiracy with A‑3, A‑4, A‑5 and A‑6. It is submitted that if it is the case of the Central Bureau of Investigation, then it ought to have named all the bidders who were ineligible as per the note but whose commercial bids were opened. Any conclusion reached on the basis of the alleged handwritten note of A‑5 Deputy General Philip is meaningless unless the circumstances surrounding the note are investigated in full., The accused have submitted that the note of A‑5 Deputy General Philip is not the only note on record regarding eligibility/ineligibility of the bidders. Another similar note is available at D‑36, Page 17, PDF 4666. This note is part of the file pertaining to minutes of the meeting of the Management Committee held on 10 April 2008 at the office of MSMCL. In that note, Accused No. 1 Company has been declared technically eligible and the non‑eligible parties are separately listed with reasons for their disqualification. The note includes entries such as: 1. Midest Integrated Ltd. – Technically qualified but not financially qualified because the company did not make profits in each of the immediately preceding three financial years. 2. Sunflag Iron & Steel – Technically and financially qualified. 3. Gupta Coal India Ltd. – Technically and financially qualified. 4. 21st Century Infrastructure – Technically and financially qualified. 5. BLA Industries Pvt Ltd – Technically qualified but not financially qualified as it lacked three years of mining experience and did not submit supporting documents. 6. Sainik Mining & Allied Services – Technically qualified except for non‑submission of manpower details. 7. Balasore Alloys Ltd – Technically and financially qualified. 8. Divya Dealer Ltd – Technically and financially qualified. 9. Jayaswal Neco Industries Ltd – Technically qualified but not financially qualified because the consortium partner Guru Meher Construction did not satisfy the profit criteria.
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According to the technical qualification criteria, a company must have at least three years of mining experience. Messrs Guru Meher Constructions stated that they possess the required experience, but no documents were submitted to substantiate the claim. Messrs Sunil Hi-Tech Engineering Limited, Messrs Bhatia International Limited, and Messrs Ricon Infrastructure Limited were noted as having met the criteria. Messrs Gopani Iron & Power Private Limited did not meet the technical qualification criteria because it lacked three years of mining experience, and Messrs Gehra Minerals did not submit documents to validate its mining experience., The accused submitted that the alleged first note in the handwriting of Assistant General 5, D. G. Philip does not appear to have been considered by the Management Committee, whereas the second note is found in the file of the Management Committee meeting. The accused contend that the Central Bureau of Investigation omitted this crucial piece of information while formulating the chargesheet. Referring to paragraphs 16.4.24 and 16.4.26 of the chargesheet, it is submitted that the only indication of a technical evaluation is an unsigned tabulation sheet that tabulates the offers of technical bids submitted by all thirteen bidders for the Adkoli coal block., The accused assert that the second note was not considered by the Central Bureau of Investigation at the time of forming its opinion, as evident from the chargesheet. They further submit that, although the chargesheet alleges a conspiracy to treat Accused Number One Company as technically qualified, the undated and unsigned note of Assistant General 5, D. G. Philip initially listed the company as ineligible (apatra) and later treated it as technically eligible., The accused point out that the Adkoli coal block was the smallest of the coal blocks offered, with very limited coal reserves compared to other blocks. They submit that Messrs Maharashtra State Mining Corporation Limited was the best judge of the contract terms, having floated the bid document, and that the Managing Director of Messrs Maharashtra State Mining Corporation Limited stated that Accused Number One Company was technically qualified and that there was nothing arbitrary in qualifying the company., The accused state that there is no allegation that they attended any meeting, wrote any letter, made any misrepresentation, forgery, or undertook any desperate measure after discovering that the company was technically unqualified. They refer to paragraph 16.4.33 of the chargesheet, which alleges that, to technically qualify Accused Number One Company, six other companies were also made technically eligible. The accused submit that merely being made technically eligible could not have made Accused Number One Company the joint‑venture partner, as only the highest technically qualified bidder could become the partner., The accused argue that the Central Bureau of Investigation’s case that the commercial bid of Accused Number One Company (which was the highest for the Adkoli coal block) was rigged is unfounded. They contend that if six other bidders were made qualified solely to accommodate Accused Number One Company, this would have increased competition at the time of opening the commercial bids. They also note that the same reasoning does not explain how bidders deemed ineligible in the unsigned note of Assistant General 5, D. G. Philip were made eligible for the Agarzari and Warora coal blocks, including the H‑1 bidder, Messrs Adani Enterprises Limited., The accused submit that the fact that twenty‑one of the alleged ineligible bidders were treated as technically qualified undermines the allegation of a conspiracy between Accused Number One Company and the co‑accused. They observe that, among the alleged ineligible companies whose bids were opened, the Central Bureau of Investigation chose to file a case only against Accused Number One Company for reasons not clear from its final report, and that the prima facie view is that the technical qualification of the bidders did not involve bias, arbitrariness, or favouritism., To counter the opinion of the Investigating Officer who filed the chargesheet, the accused rely on the statement of R. Parthasarthy, Deputy Superintendent of Police, Central Bureau of Investigation (Witness 1, serial number 130), who conducted the preliminary enquiry and recommended registration of a regular case against unknown officers of Messrs Maharashtra State Mining Corporation Limited, Messrs Sunil Hi‑Tech Engineers Limited and Messrs aXYKno Capital Services Private Limited. He noted that on the day Messrs Sunil Hi‑Tech Engineers Limited was treated as technically qualified despite not meeting an important bid condition, the price bids of none of the bidders were opened. In the absence of knowledge of the price bids, attributing a motive that the tender committee intended to favour a particular bidder would be difficult. He further observed that there was no corresponding wrongful loss caused to Messrs Maharashtra State Mining Corporation Limited, and that by rejecting the technical qualification of Messrs Sunil Hi‑Tech Engineers Limited, a substantial loss that could have been incurred by the corporation was averted. Messrs Sunil Hi‑Tech Engineers Limited had quoted the highest upfront sweat money of Rs 36.06 + Rs 1 = Rs 37.06 per tonne of geological reserve, compared with Rs 31 quoted by the H‑2 bidder., The accused refer to paragraphs 16.4.11 to 16.4.16 to show that the Central Bureau of Investigation was unable to locate various records, deliberations, notings and information from the files of Messrs Maharashtra State Mining Corporation Limited. They submit that letters were written by Nagpur Metro to Messrs Maharashtra State Mining Corporation Limited to lift its files left in the strong room of the old premises at Udyog Bhawan, but the fate of those files is nowhere revealed in the statements and documents relied upon by the Central Bureau of Investigation. They further contend that the Central Bureau of Investigation never conducted any searches at the old or new office premises of Messrs Maharashtra State Mining Corporation Limited, and that the files were acquired through production‑cum‑seizure memos and seized at the Central Bureau of Investigation office in New Delhi. The accused argue that the Central Bureau of Investigation did not even bother to look for the records before concluding that no records could be found, and that its incomplete investigation with respect to the documents of Messrs Maharashtra State Mining Corporation Limited cannot be held against the accused persons., Decision of the Supreme Court of India: The Government of Maharashtra, by a letter dated 01 September 2007, directed the Managing Director of Messrs Maharashtra State Mining Corporation Limited to scrutinise the bids received with reference to the Expression of Interest for the coal blocks from administrative and financial viewpoints and to prepare a comparative chart., The bids in this case, as per normal procedure, comprised technical bids and financial bids. The last date for submission of the bids was 14 March 2008. During the investigation, it has not come on record what the Terms of Reference, Scope of Work, or the report/findings of the Tender Committee were., However, at Document 33, PDF 4503, are the minutes of the meeting of the Tender Committee held on 14 March 2008, which show that the meeting was attended by Assistant General 6, Avinash Warjukar, Chairman, Messrs Maharashtra State Mining Corporation Limited, Nagpur; Assistant General 5, D. G. Philip, Indian Administrative Service, Managing Director, Messrs Maharashtra State Mining Corporation Limited, Nagpur; P. P. Soni, General Manager, Messrs Maharashtra State Mining Corporation Limited, Nagpur; P. B. Lalwani, Accounts Officer, Messrs Maharashtra State Mining Corporation Limited, Nagpur; and R. Ramkrishnan, representing Messrs aXYKno Services Private Limited (Financial Consultants)., The minutes record that for three coal blocks, thirty‑eight bids were received. The bid submitted by Messrs Indiabull was rejected because it was not received within the prescribed time‑limit for submission of the tender documents., The minutes record that the representatives of the bidders requested the Tender Committee that the technical scrutiny would take longer, and that only the Earnest Money Deposits submitted by different parties, with the name of the party, amount of deposit and deposit number, should be announced, while the other technical details be examined and compared at the level of the Tender Committee itself. This suggestion of the representatives was accepted, and the name of the party, the coal block for which the bid was received, the amount of Earnest Money Deposit, the deposit number and date were announced for the information of all present., The bidders were informed that the technical bids would be analysed and examined properly. They were also told that they would have to give presentations in hard and soft copies on any positive points, as decided by the party, and that commercial bids would be opened as soon as the time‑limit given for presentation was over., Witness P. B. Lalwani, who was the Assistant Manager (Audit) at Messrs Maharashtra State Mining Corporation Limited during 2008 and a member of the Technical Committee, stated that he had not seen the technical bids of the bidders, had not participated in the technical evaluation of the bids for the Adkoli coal block, and did not know who and how the technical bids were evaluated or which bidders were qualified or disqualified for that coal block., Witness P. Soni, General Manager of Messrs Maharashtra State Mining Corporation Limited and also a member of the Technical Committee, stated that the tender documents were kept by Assistant General 5, D. G. Philip, as he was looking after all such activity. He was not called for evaluation of the technical bids, did not participate in the evaluation, and does not know how or by whom the technical bids were examined or who prepared the analysis report. He has not seen any such analysis report and was not present at the time of opening of the price bids., The representatives of the bidders, Witnesses 93 and 100, also stated that the technical bids were not evaluated on 14 March 2008., Who declared technical eligibility or ineligibility of various bidders for the different coal blocks? This is made known from the minutes of the Management Committee meeting held on 10 April 2008, Document 36, Page 195, PDF 4650. At page 199, it records that the Managing Director openly announced the names of the parties who were technically qualified and disqualified and the reasons for their disqualifications. He also informed all present that the commercial bids of the parties who did not fulfil the technical criteria were rejected and their commercial bids would not be opened. Accordingly, a remark to the effect on the commercial envelope of disqualified parties was taken that, being technically disqualified, their envelopes were not opened., The minutes do not record that the technical evaluation of the bids was carried out by the Technical Committee., Therefore, according to the material available on record, it is clear that the Managing Director, who was given the responsibility by the Government of Maharashtra to scrutinise the bids received by Messrs Maharashtra State Mining Corporation Limited from administrative and financial viewpoints, was the one who announced the technical eligibility. The members of the Technical Committee, who are prosecution witnesses namely Witness 29 and Witness 32, have also stated that they had no role in the technical evaluation of the bids. The representatives of the bidders, Witnesses 93 and 100, have also stated that the bids were not technically evaluated on 14 March 2008 and that on that date only the names of parties, Earnest Money Deposits submitted, and dates of deposits were noted., In the comparative chart prepared after the technical evaluation of bids, the eligibility (patra) or ineligibility (apatra) is noted in the handwriting of Assistant General 5, D. G. Philip. Therefore, the technical evaluation of the bids was conducted by Assistant General 5, D. G. Philip, and the role of Assistant General 6, Avinash Warjukar, is ruled out in the technical evaluation of bids., As far as Assistant General 3, Messrs aXYKno Capital Services Private Limited, and Assistant General 4, R. Ramakrishnan, are concerned, they have relied on Office Memorandum dated 25 November 2002, issued by the Central Vigilance Commission on the subject of appointment of consultants, which provides that the role of the consultant should be advisory and recommendatory and that final authority and responsibility should rest with the departmental officers only., This Supreme Court, in the case of Central Bureau of Investigation versus Messrs LANCO Infratech Limited and others, noted that this circular was relied upon by the Central Bureau of Investigation in the charge sheet to give relief to the accused, Messrs aXYKno Capital Services Private Limited. The circular is therefore of sterling quality and the accused can rely upon it at the stage of charge., Internal notings are always capable of being changed, amended or withdrawn. This occurred in the present case, as the noting made by Assistant General 5, D. G. Philip declaring bidders technically eligible (patra) or ineligible (apatra) was modified with respect to Messrs Sunil Hi‑Tech Engineering Limited before the opening of financial bids, as reflected in note Document 36, Page 17, PDF 4666, where it is recorded that Messrs Sunil Hi‑Tech Engineering Limited had provided the Earnest Money Deposit and was technically and financially qualified, and the column for reasons for technical disqualification was left blank., Therefore, no culpability can be imputed upon Assistant General 3 and Assistant General 4 for declaring Messrs Sunil Hi‑Tech Engineering Limited technically qualified., The court will now examine the allegations against Assistant General 5, D. G. Philip, that he had found Messrs Sunil Hi‑Tech Engineering Limited technically ineligible (apatra) but still declared it technically eligible and opened its financial bid., In the bid submitted by Messrs Sunil Hi‑Tech Engineering Limited, reliance was placed on the experience of SB Engineering Associate for the last five years and on the manpower available with SB Engineering Associate (Document 28, Page 12, PDF 2623 and Page 36, PDF 2647). However, there was no Memorandum of Understanding filed with the bid document to enable Messrs Sunil Hi‑Tech Engineering Limited to take the benefit of the experience and manpower of SB Engineering Associate. In the absence of such a Memorandum of Understanding, Assistant General 5, D. G. Philip noted that Messrs Sunil Hi‑Tech Engineering Limited was technically ineligible., The accused have relied on directions issued by the Government of Maharashtra, Industry Department dated 30 April 1994, pertaining to the guideline procedures to be followed regarding the two‑envelope system, to submit that in the technical bid envelope, if any shortcoming is found or supporting documents are not attached, permission to submit or furnish such documents can be given to the bidder up to the time of opening of their commercial bid offers so that the best competitive offers are received., The accused submit that, in accordance with the above resolution and the terms and conditions of the tender document, Messrs Sunil Hi‑Tech Engineering Limited and other bidders who were found technically ineligible due to shortcomings in their technical bid documents were informed that they could become eligible by clearing their shortcomings through submission of positive documents., The accused state that Messrs Sunil Hi‑Tech Engineering Limited, after learning of its ineligibility, submitted a Memorandum of Understanding with Messrs SB Engineering Associates so that it could use its mining experience for the purpose of winning the joint‑venture partnership., Upon receiving the Memorandum of Understanding, Assistant General 5, D. G. Philip held that Messrs Sunil Hi‑Tech Engineering Limited could take the benefit of the mining experience of Messrs SB Engineering Associates and therefore became technically eligible. Before opening the financial bids, Messrs Sunil Hi‑Tech Engineering Limited was found to be technically eligible, as evident from Document 36, Page 17, PDF 4666, which is another note placed in the same file containing the minutes of the Management Committee meeting dated 10 April 2008., The chargesheet alleges that the last date for submission of bids was 14 March 2008. The bid of Messrs Sunil Hi‑Tech Engineering Limited was submitted with a forwarding letter dated 13 March 2008 in a spiral‑bound book. However, the Memorandum of Understanding dated 14 March 2008 was attached with the spiral‑bound book with a stapler pin. The allegations state that the bid was to be submitted by 1 pm on 14 March 2008, and that technical bids were to be opened at 4 pm on the same day. It is therefore difficult to assume that Messrs Sunil Hi‑Tech Engineering Limited entered into a Memorandum of Understanding after the deadline for submission of bids had passed., Assistant General 5 explains that the consortium Memorandum of Understanding dated 14 March 2008 was not part of the spiral‑bound book submitted in the sealed technical envelope by Messrs Sunil Hi‑Tech Engineering Limited, which was opened on 14 March 2008 at 4 pm by Messrs Maharashtra State Mining Corporation Limited for scrutiny of technical bids. He states that the bid was submitted with a forwarding letter dated 13 March 2008 and that the consortium Memorandum of Understanding, dated 14 March 2008, could not have been attached to the bid document., Assistant General 5 thus explains the circumstances under which Messrs Sunil Hi‑Tech Engineering Limited was earlier declared ineligible. He notes that the bid documents relied on the mining experience and workforce of Messrs SB Engineering Associates, but no Memorandum of Understanding was enclosed to allow Messrs Sunil Hi‑Tech Engineering Limited to take the benefit of that experience. The Memorandum of Understanding was later placed on record, and that is how the Memorandum dated 14 March 2008 became part of the tender documents of Messrs Sunil Hi‑Tech Engineering Limited. After taking into consideration the mining experience of Messrs SB Engineering Associates, Messrs Sunil Hi‑Tech Engineering Limited was declared technically eligible, as evident from the chart in the file containing the minutes of the Management Committee dated 10 April 2008., The question is whether Messrs Sunil Hi‑Tech Engineering Limited was technically eligible. According to Assistant General 5, he relied on Document 28, Page 12, PDF 2623, which is Annexure 2 – Bidders’ Experience Information (Last Five Years), to conclude that Messrs Sunil Hi‑Tech Engineering Limited was technically qualified for the bid., A perusal of this annexure shows that the first task undertaken is open excavation, construction of a reinforced cement concrete box and drivage of a pair of inclined shafts; the second task is construction of an air shaft and fan‑house building; the third task is construction of two 1 200 metre internal‑diameter shafts for tunnel work; the fourth task is construction of an air shaft and fan‑house building; and the fifth task is open excavation, construction of a reinforced cement concrete box and drivage of a pair of inclined shafts., The accused submit that the definition of mining in the Mines Act, 1952, is a detailed definition that takes into account the aforesaid tasks undertaken by the consortium partner of Messrs Sunil Hi‑Tech Engineering Limited. They further rely on the definition of mining operations as per Section 3(d) of the Mines and Minerals Development and Regulation Act, 1957, which defines mining operations as any operation undertaken for the purpose of winning any mineral., The expression used in the tender is “Actual Mining”. According to prosecution witness 18, “Actual Mining” means winning of minerals from below the ground, i.e., production of coal or minerals. However, this clarificatory definition is not provided in the tender documents, where the expression is used without any clarification. The accused therefore submit that the five tasks undertaken by Messrs SB Engineering Associates are covered by the experience of mining., The bid documents also require that the bidder should have experience in survey and exploration. From the five tasks undertaken by Messrs SB Engineering Associates, it appears that none of the tasks covers survey and exploration., Assistant General 5 further submits that Messrs Maharashtra State Mining Corporation Limited had more than thirty years of mining experience, having won minerals from various mines including underground mines. Therefore, the criterion of a compulsory minimum of three years of experience for bidders to become eligible for opening of the commercial bids was not of much importance and was relaxed for all bidders who were financially fit and eligible. Accordingly, out of thirteen competitive bidders, twelve were found to be technically fit and eligible for opening of their commercial bids. The accused submit that there is nothing illegal, wrong or invalid in modifying the original terms and conditions mentioned in the tender documents., The accused acknowledge that this argument is problematic and difficult for the court to accept., For the Adkoli coal block, there were thirteen bidders. According to the chart prepared by Assistant General 5, D. G. Philip, eight of them were ineligible and five were technically eligible. It was not that none of the bidders was technically eligible, and to make the bid successful all the ineligible bidders were declared eligible. This is without stating that in a bid where there is no technically successful bidder, the financial bids of all the bidders can be opened. There was no justification for Assistant General 5 to open the bids of technically ineligible bidders, including Messrs Sunil Hi‑Tech Engineering Limited., At the stage of charge, the action of Assistant General 5 raises serious suspicion that, as a public servant, he obtained for ineligible bidders, including Messrs Sunil Hi‑Tech Engineering Limited, a valuable pecuniary advantage without any public interest. The valuable thing in this case is that the ineligible bidders were cleared as technically eligible, enabling them to proceed to the second round of financial bids. For the Adkoli coal block there were five technically eligible bidders, and therefore there was no justification for declaring seven more bidders technically eligible, though they were technically ineligible., The accused point out that not only for the Adkoli coal block but also for the Agarzari coal block, ineligible bidders were declared eligible. One of the ineligible bidders, Messrs Adani Enterprises Limited, was awarded the contract as the H‑1 bidder after opening its financial bid. This court is of the view that opening bids of ineligible bidders for the Adkoli coal block is a separate offence, and opening bids of ineligible bidders for the Warora and Agarzari coal blocks are separate offences. The present chargesheet deals with the Adkoli coal block; therefore, the charge will be confined to declaring ineligible bidders for the Adkoli coal block as technically eligible. There is no investigation regarding the selection of the joint‑venture partner for the Warora or Agarzari coal blocks, which would be a separate offence., While framing the charge under Section 13(1)(d) of the Prevention of Corruption Act, 1988, against Assistant General 5, D. G. Philip, this court is conscious of the statement made by Shri R. Parthasarthy, Deputy Superintendent of Police, Central Bureau of Investigation (Witness 1, unrelied statement at serial number 130), who stated that there was no corresponding wrongful loss caused to Messrs Maharashtra State Mining Corporation Limited due to the act of omission and commission on the part of the members of the tender committee. On the contrary, by taking a call on Messrs Sunil Hi‑Tech Engineers Limited, a substantial amount of loss that could have been caused to the corporation was averted. Messrs Sunil Hi‑Tech Engineers Limited quoted the highest upper front sweat money of Rs 36.06 + Rs 1 = Rs 37.06 per tonne of the geological reserves, compared with Rs 31 quoted by the H‑2 bidder., Public functionaries, while dealing with monetary matters, cannot change the terms and conditions proposed in the bid. If it were made known to the public that the conditions for mining required in the bid would be relaxed, there is a possibility that some bidders may have offered even more than the offer of Messrs Sunil Hi‑Tech Engineers Limited., Therefore, with respect to the second allegation in the chargesheet, namely declaring technically ineligible bidders as eligible, the charge is to be framed against Assistant General 5, D. G. Philip under Section 13(1)(d) of the Prevention of Corruption Act, 1988.
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Although by relaxing the conditions for technical requirements, Messrs SHEL was awarded the tender being H-1, nothing can be read into this because the relaxation was for all the seven ineligible bidders and not peculiar to Messrs SHEL alone. To win the contract, the financial bid had to be the highest for which there was no certainty. In the absence of any allegation in the chargesheet, it is only in the domain of surmises and conjectures that after declaring eligible, the technically ineligible bid of Messrs SHEL, its financial bid was rigged to make it H-1. Therefore, for the second allegation made in the chargesheet, the charge as mentioned above can only be framed against Deputy General Philip., The third allegation against the accused is that in violation of conditions of the bid documents, the terms and conditions of the Joint Venture Agreement were modified allowing the Joint Venture Partner to transfer or pledge its shares, which was otherwise prohibited in the bid document., In the one hundred sixty‑fifth Board of Directors meeting held on 07 February 2008, at Point 8, the draft terms and conditions of the bids were discussed point‑wise by the Directors., Therefore, Avinash Warjukar and Deputy General Philip were aware of the terms and conditions of the bid documents., In the bid document under section 4 (Special Conditions of Joint Venture Agreement Special Purpose Vehicle) under clause XVI (1), it was clearly mentioned that the Joint Venture partner shall not sell its shareholding or create any third‑party rights in the Special Purpose Vehicle for the term of the Joint Venture agreement. In sub‑clause (2) of clause XVI, it was further mentioned that the Joint Venture partner shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Special Purpose Vehicle to any third party, lender or any entity whatsoever., By letter dated 07 January 2009, the General Manager of Maharashtra State Mining Corporation Limited called upon Messrs aXYKno to submit a draft Joint Venture Agreement., The first draft of the Joint Venture Agreement was provided by Messrs aXYKno by their letter dated 12 January 2009. Sub‑clause 12.2 of clause 12 of this proposed Joint Venture Agreement provided that Party No. 2, i.e., Messrs SHEL, shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever except as provided in the agreement., Sub‑clause 12.3.1 of clause 12 of the Joint Venture Agreement also provided that either party agrees not to sell any of its shares, any rights related to its shares or any of its pre‑emptive rights to new shares or other securities in the Joint Venture Company, and not to agree to do any of such things., However, clause 12.4 of the final Joint Venture Agreement executed on 21 November 2009 now provided for share transfers to third parties. It states that if at any time during the term of the agreement either party (provided the Joint Venture Company remains a government company) desires to assign or transfer its equity shares to a party other than its affiliate, certain mandatory conditions must be fulfilled, including a written offer to the other party, a minimum notice period of sixty days, price negotiation, reference to an independent advisor for fair value, and a right of first refusal for the other party before disposal to a third party., Sub‑clause 12.3.2 of clause 12 of the Joint Venture Agreement provided that each party may transfer all or any of its shares to any of its affiliates subject to such affiliate accepting all of the obligations of the transferring party under the agreement and the transferring party remaining jointly and severally liable with its transferee affiliate., The Central Bureau of Investigation alleges that, with a view to cause undue pecuniary advantage to Messrs SHEL, with whom Messrs aXYKno had substantial business and financial dealings even prior to the bidding stage of the Adkoli coal block, clauses were inserted in the Joint Venture Agreement to suit Messrs SHEL., The one hundred seventy‑second meeting of the Board of Directors of Maharashtra State Mining Corporation Limited held on 21 January 2009 was attended by Avinash Warjukar, the then Managing Director, and others before sending the draft Joint Venture Agreement to the Department of Industries, Government of Maharashtra for approval. Various clauses of the draft Joint Venture Agreement were discussed in the presence of the bidders or their representatives and based on that the draft Joint Venture Agreement was finalized and approved by the Board., Clause 12.3.3 of the Joint Venture Agreement executed on 21 November 2009 provided that Party No. 2 may transfer its shares to a Special Purpose Vehicle for the specific purpose of carrying on the business as per the agreement, subject to a deed of adherence and a mandatory maintenance of at least fifty‑one percent share in the Special Purpose Vehicle at all times during the period of the agreement., By letter dated 16 May 2008, Deputy General Philip requested the Principal Secretary (Industries), Industries, Energy and Labour Department, Government of Maharashtra, for moving the Chairman of the High‑Power Committee to convene a meeting for approval of the said Committee to competitive H‑1 bids received for mining of four coal blocks, enclosing the bid document for Joint Venture for carrying out survey, exploration and mining activities at the four coal blocks allocated to Maharashtra State Mining Corporation Limited., A proposal dated 13 June 2008 was sent by Deputy General Philip to the Principal Secretary, Department of Industry, Government of Maharashtra for obtaining approval of the H‑1 bidder in respect of coal blocks including the Adkoli Coal Block. The tender bid documents and terms and conditions were enclosed with the proposal as Annexure‑1., PW‑14 V. S. Kulkarni has stated that, as per records, along with the proposal dated 13 June 2008 signed by Deputy General Philip, Annexure‑1 enclosed were the bid documents in respect of the four coal blocks including the Adkoli Coal Block., By letter dated 24 August 2008, Deputy General Philip replied to the queries raised by Shri Vijay Kumar Aggarwal, Additional Chief Secretary (Finance) and Member of the High‑Power Committee, Government of Maharashtra. The response stated that clause XVI of section 4 (1) clarifies that the Joint Venture partner shall not sell the shareholding or create any third‑party rights in the Joint Venture company, and clause XVI of section 4 (2) clarifies that the Joint Venture partner shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture company to any third party, lender or any entity whatsoever., By letter dated 23 January 2009, Deputy General Philip sent the draft Joint Venture Agreement to the Principal Secretary (Industries), State of Maharashtra., On 26 February 2009, Deputy General Philip addressed a letter to the Principal Secretary (Industries) enclosing the say of Maharashtra State Mining Corporation Limited’s consultant Messrs aXYKno regarding the Joint Venture draft agreement submitted to the High‑Power Committee for formation of a Joint Venture Company with the H‑1 bidders of all four coal blocks including the Adkoli Coal Block. It is noted that Deputy General Philip’s role came to an end on 26 February 2009 as he retired from service on that date., The High‑Power Committee on 04 May 2009 recommended selection of the H‑1 bidder along with the draft Joint Venture Agreement and proposed that a proposal be submitted to the Infrastructural Committee of the Cabinet for approval., Subsequently, the matter was placed before the Infrastructural Committee of the Government of Maharashtra which approved the proposal relating to selection of H‑1 bidders and formation of a Joint Venture Company with respective Joint Venture partners. The committee also approved the proposed draft Joint Venture Agreement. The terms and conditions of the Joint Venture Agreement were thoroughly considered during the Ministers’ Infrastructure Committee at the Chamber of Honourable Chief Minister on 18 June 2009. While approving formation of the Joint Venture Company and its proposed draft Joint Venture for the development, use and sale of mineral (coal) from the coal blocks allocated to Messrs MCL, the Ministers’ Infrastructure Committee also made suggestions for incorporating several clauses in the Joint Venture Agreement, including a clause on the corporation’s first right of refusal on the sale of fifty‑one percent coal in the Joint Venture Company and the appointment of a senior government official as state representative director on the Board., The Department of Industry, Government of Maharashtra, by letter dated 01 August 2009, conveyed the decision taken by the Infrastructural Committee on 18 June 2009 to the Managing Director, Maharashtra State Mining Corporation Limited., After receiving approval of the Government of Maharashtra, Niranjan Kumar Sudhanshu, the then Managing Director, Maharashtra State Mining Corporation Limited, issued a letter of intent dated 03 August 2009 to Messrs SHEL., The Central Bureau of Investigation relies on the statement of PW‑26 P. Y. Tembhare, General Manager, Maharashtra State Mining Corporation Limited, who stated that after being shown all the relevant files handed over to the CBI, there is nothing to indicate how, when and under whose authority the clause relating to non‑sale of shares in the bid document got modified in the final Joint Venture Agreement signed on 21 November 2009 (as indicated in sub‑clauses 12.3.2 and 12.3.3). He noted that the bid document contained no condition about transferability of shares, only a condition about non‑sale and non‑pledge of the shareholding., Reliance is also placed on the statement of PW‑32 PP Soni, the then Assistant Manager of Maharashtra State Mining Corporation Limited, who similarly stated that there is nothing to indicate how, when and under whose authority these clauses were inserted in the Joint Venture Agreement, and that the bid document had no condition about transferability of shares, only a condition about non‑sale of the shareholding or pledge., Reliance is placed on the statement of PW‑61 Suresh Kewalramani, who stated that the first draft of the Joint Venture Agreement was prepared in accordance with the conditions mentioned in the bid documents. Later, certain clauses of the Joint Venture Agreement were changed after discussions with Maharashtra State Mining Corporation Limited and the bidders. He indicated that R. Ramakrishnan was mainly associated with the changes that took place subsequent to preparation of the first draft Joint Venture Agreement., Reliance is also placed on the statement of PW‑26 P. Y. Tembhare, who stated that Messrs SHEL or its affiliates do not appear to have complied with the conditions contained in paragraph 12.4 (12.4.1, 12.4.1.1 and 12.4.1.2) before the transfer or sale of its shares to Messrs Jaypee Development Corporation., This is the third count suggested by the Central Bureau of Investigation for framing a charge under section 13(1)(d) of the Prevention of Corruption Act, 1988 against both the public servants and under sections 120B and 120B read with section 13(1)(d) of the Prevention of Corruption Act, 1988 against all the accused., Submissions of Avinash Warjukar (A‑6): The accused referred to a letter dated 20 August 2006 from the Ministry of Coal to the Managing Director, Maharashtra State Mining Corporation Limited, conveying the in‑principle approval of the Central Government to the working of the Adkoli Coal Block by Maharashtra State Mining Corporation Limited subject to conditions mentioned therein. A milestone chart was enclosed with this letter. He also referred to a letter dated 25 January 2007 from the Government of Maharashtra addressed to the Managing Director, directing that the corporation should not take any decision on the expression of interest invited by the corporation and that all records about it be sent to the Industry Department. The accused also referred to an office memorandum dated 01 September 2007 of the Government of Maharashtra constituting a high‑level committee to scrutinize bids received under the expression of interest, examine financial matters, and prepare a comparative chart for drafting a memorandum of understanding and establishing a Joint Venture for mineral development. The memorandum directed the Managing Director, in consultation with the Chief Executive Officer, MIDC, Mumbai, to prepare a draft MOU/JV and submit it to the committee for further action. The accused referred to the minutes of the one hundred sixty‑fifth Board meeting held on 07 February 2008, which approved calling off the expression of interest for exploitation of all four coal blocks allotted to Maharashtra State Mining Corporation Limited and the terms and conditions of the tender documents for entering into an MOU for formation of a Joint Venture company through public‑private partnership. He also referred to the bid document for joint venture for carrying out survey, exploration and mining activities at the Marki‑Zari‑Jamni‑Adkoli area near Wani, Yavatmal District, Maharashtra State. He pointed out the bid documents submitted by Messrs SHEL. He further referred to the minutes of the one hundred sixty‑sixth Board meeting held on 12 March 2008, where it was recorded that the condition of coal washing should be amended and relaxed and a corrigendum be issued accordingly. The accused also referred to the minutes of the High‑Power Committee meeting held on 01 August 2008, where information was called by the High‑Power Committee on thirteen points. He also referred to the reply given by Deputy General Philip to the queries raised by Vijay Kumar Aggarwal, Additional Chief Secretary (Finance) and member of the High‑Power Committee, which explained that the bid document covered all major points and the terms and conditions for formation of a Joint Venture company for exploitation of the coal block, and that any additional issues would be discussed with the Joint Venture partner and incorporated in the Joint Venture Agreement, which would be approved by the Government of Maharashtra before execution., The accused referred to the minutes of the High‑Power Committee meeting held on 20 November 2008 in which Maharashtra State Mining Corporation Limited was directed to prepare a draft of the joint venture company, and after examination by each member of the committee, the draft would be discussed in the next meeting. He also referred to the minutes recording the status of tenders invited to form a Joint Venture partnership, noting that three private entrepreneurs had been selected to submit draft agreements, but drafts had not yet been received from some of them. The minutes indicated that the financial consultant, Messrs aXYKno Capitals, should obtain draft agreements from the entrepreneurs, hold meetings to hear their views, prepare a final draft, and submit it to the Managing Director, who would then convene a meeting of all partners, the financial consultant and the corporation’s representative to finalize the terms and conditions before placing the revised draft before the Board of Directors for consideration., The accused referred to a letter dated 31 January 2009 written by Deputy General Philip to the Principal Secretary (Industries), Industries, Energy and Labour Department, Mumbai, enclosing a detailed comparative note with the say of Maharashtra State Mining Corporation Limited pertaining to the draft Joint Venture Agreements. Regarding issue number ten raised by Messrs Adani Enterprises Ltd. in their letter dated 21 January 2009, Deputy General Philip commented that the Joint Venture Agreement being finalized by the Board should be in agreement with the corporation before submission to the High‑Power Committee. He explained that the Joint Venture partners were issued a copy of the draft prepared by the corporation, the consultant Messrs aXYKno discussed it with all partners and prepared a revised draft, which was then put before the Board of Directors for approval. The Board considered all aspects of the partners’ inputs that were in conformity with the tender terms and conditions; aspects not in conformity were not incorporated. The High‑Power Committee could consider the partners’ say and take a suitable decision., The accused drew the attention of the court to a letter dated 28 January 2009 written by Messrs Adani Enterprises Limited to the Chief Minister of the Government of Maharashtra, Mumbai. The letter mentioned that the draft Joint Venture Agreement (JV A) was prepared and submitted to the Board by its consultant Messrs aXYKno Capital Services Ltd., and that the Board had heard the partners on 21 January 2009. It pointed out that there were wide‑scale changes in the draft JV A submitted to the Chief Minister compared to the one discussed on 21 January 2009. One major difference highlighted was that clause 12.2, which in the corporation’s draft stated that Party No. 2 shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever, should be subject to clause 6.4.1(e)., The learned counsel also pointed out a letter dated 21 January 2009 written by Messrs Sunil HiTech Engineers Ltd. to the Managing Director, Maharashtra State Mining Corporation Limited, Nagpur, requesting to add more points to the draft Joint Venture Agreement. The letter did not request permission for mortgage, lien or pledge of shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever; such a request was made only by Messrs Adani Enterprises Ltd. Similarly, a letter dated 22 January 2009 written by Gupta Coal (India) Ltd. to the Chairman/Managing Director of Maharashtra State Mining Corporation Limited contained no request seeking permission for lien‑marking, pledge or mortgage of shareholding., Arguments of Deputy General Philip: The Government of Maharashtra, by its Government Resolution dated 22 July 2008, recognised the High‑Power Committee of the Government of Maharashtra besides the Minister of Industry and its other members. The Chairman of Maharashtra State Mining Corporation Limited was incorporated as a member of the High‑Power Committee and the Managing Director of the corporation was made Member Secretary of the High‑Power Committee with the direction that (a) after examination of the offers received under the expression of interest and approval by the Board of Directors, the corporation would send the entire details with justification to the High‑Power Committee; and (b) the High‑Power Committee, besides approving the corporation’s proposal, would also give direction for entering into a memorandum of understanding/agreement with the eligible bidders/industrialists. In its meeting dated 01 August 2008, the High‑Power Committee under the chairmanship of Shri Ashok Chauvan, Industry Minister, after detailed discussion decided to call for additional information and clarification from the corporation on thirteen points. The committee also called Shri Ramakrishnan Iyer of Messrs aXYKno Capital Services Pvt. Ltd. and discussed with him. The Additional Chief Secretary (Finance) suggested that the corporation should make a computer‑power‑point presentation before the High‑Power Committee on its proposal, which the Industry Minister agreed to and directed that the thirteen issues asked to be replied by the corporation should be given in writing to the corporation, clarified to the Principal Secretary (Industry), and after detailed scrutiny submitted to the High‑Power Committee., Therefore, it is clear that the Government, in the High‑Power Committee, approved the appointment of the financial consultant Messrs aXYKno and recognised its services, calling it to participate in the High‑Power Committee meetings. The next meeting of the High‑Power Committee was held on 20 November 2008, where it was decided tentatively that there was no objection to approving the proposal for the Jamni‑Jhari, Adkoli, Agarzari and Warora coal blocks, provided that the corporation’s draft terms and conditions, nature of capital investment, formation of Joint Venture partners agreement/MOU and raising of the joint venture company were ready. The corporation was directed to take action accordingly within ten days and prepare the draft of the Joint Venture partner agreement/MOU and the creation of the joint venture company, send it to each member of the High‑Power Committee, and the committee would take a decision after scrutiny within ten days in the next meeting., The Managing Director, Maharashtra State Mining Corporation Limited, by letter dated 13 June 2008, sent a proposal to the Government of Maharashtra in the Industry Department which was attached with the original tender bid document for formation of a joint venture. At page 29, paragraph XVI(1) it was clearly mentioned that at sub‑clause (2) the Joint Venture partner shall not sell its shareholdings or create any third‑party rights in the Special Purpose Vehicle for the terms of the Joint Venture agreement, nor shall it pledge, mortgage or lien‑mark the shareholding or any rights in the Special Purpose Vehicle to any third party, lender or any entity whatsoever. The Government, in the Industry Department, had seen and examined these terms and conditions and was fully aware of the conditions that prevented sale or pledge of shares in the Special Purpose Vehicle. The Government could have easily incorporated the above conditions of non‑transfer or non‑sale of shares by the Joint Venture partner to any third party but consciously did not agree or approve the non‑transfer of shares in the Special Purpose Vehicle by any of the Joint Venture partners. Instead, it directed the corporation to prepare fresh terms and conditions of the Joint Venture Agreement in consultation with the selected Joint Venture partner bidders. The Government considered that the selected bidders had made a representation to the Industry Minister, Shri Ashok Chauvan, requesting modification of the draft terms and conditions of the tender bid documents, and that the Joint Venture partners would need to raise substantial funds for mining activities, which could require loans, mortgage of assets in the Special Purpose Vehicle, sale of shares or equity, and raising of debentures. Consequently, the Government directed the corporation to incorporate provisions allowing such financing mechanisms., The Board of Directors, in its one hundred seventy‑second meeting dated 21 January 2009, at item number twelve, discussed various clauses of the Joint Venture Agreement published in the tender bid document of the expression of interest, in the presence of the selected bidders, heard their say regarding modifications suggested by them in the original tender bid document terms and conditions, and approved and finalised some suggestions made by the bidders pertaining to the transfer of their shares or shareholding to their affiliates or third parties, subject to the condition that the Special Purpose Vehicle company, i.e., M/s Adkoli Natural Resources Ltd., shall always remain a government company with Maharashtra State Mining Corporation Limited as one of its partners and a government undertaking shall always hold fifty‑one percent or more of the shares of the Special Purpose Vehicle company. The proceedings state that before sending the draft agreement to the Principal Secretary (Industry), various clauses of the draft Joint Venture Agreement were discussed in the presence of the bidders and their representatives, the draft was modified and finalised, and thereafter approved by the Board of Directors. The modified Joint Venture Agreement was submitted to the High‑Power Committee by letter dated 23 January 2008 for its final approval., The terms and conditions mentioned in the tender bid document published represent the corporation’s position to help the bidding firms understand what the corporation likely expects from the bidders while preparing and finalising the Joint Venture Agreement.
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But the terms and conditions mentioned in the original terms and conditions of the bid document are not final nor mandatory. Being one‑sided it is not an agreement at all; therefore there is no restriction in any law for changing the draft tender conditions of the tender bid, because it is only a suggestive draft, one‑sided and not mutually agreed to. There is no consent of the other party nor mutually agreed upon. There is no contract between the parties at all. Consequently it cannot be imposed or made mandatory and there is no restriction on the publishing authority of the tender, i.e., Maharashtra State Mining Corporation Limited (MSMCL), for changing the terms and conditions of the draft mentioned in the tender document., The company law does not prohibit a partner firm or company from selling its shareholding in the firm or company to any third party. For collecting capital or expanding the business, the partners have the right to sell their shareholdings to affiliates or third parties to enable the firm to raise funds necessary for running or expansion. No law takes away this right to sell a company's shares to affiliates or third parties or to raise debentures for the betterment and development of the company., The conditions of coal block allotment do not restrict the sale of shares to a third party. The allotment condition requires that the Special Purpose Vehicle (SPV) company shall always be a Government company holding a minimum of 51 % of shares in the SPV. This condition is not breached by the joint‑venture partners, namely M/s Sunil Hitech and MSMCL., Thus, there is nothing illegal, wrong or invalid in modifying the original terms and conditions mentioned in the tender bid documents. Allowing the SPV partner to sell its share is in order to achieve the result of entering into an agreement with the selected H1 bidder so that the selected H1 bidder enters into mutually agreed terms and conditions of the Joint Venture Agreement, which is necessary for the formation of the SPV of MSMCL. The H1 bidder, by fulfilling its duties and responsibilities, will contribute and incur all expenditures needed for development and exploitation of the Jamni Jhari Adkoli coal block. As MSMCL was not financially able to incur all the expenditure by itself, it was necessary to have a financially sound partner., If the selected H1 partner is not permitted to collect and secure funds for development of the mine by selling or pledging its shares in the SPV or securing debentures, then the SPV shall always remain a Government company with 51 % shareholding by MSMCL. Subject to this condition, the other partner can in turn sell 49 % of its share to its affiliates or a third party. Even after disposing of 49 % share of the joint‑venture partner Sunil Hitech, the SPV, Adkoli Natural Resources Limited, shall always remain a Government company. Therefore, the original terms and conditions of the bid document were modified and mutually agreed upon and thereafter, with the sanction of the Government of Maharashtra, were executed in the interest of both parties., Arguments on behalf of Accused A‑3, M/s aXYKno Capital Services Private Limited, and Accused A‑4, R. Ramakrishnan Iyer: The accused submitted that their role was limited to providing assistance to MSMCL in preparation of the draft Joint Venture Agreement. Reference is made to a letter dated 18 January 2008 from MSMCL to aXYKno Capital Services Private Limited appointing it as Financial Consultant to aid in preparation of the tender documents, expression of interest and Joint Venture agreements., The accused relied on the Central Vigilance Commission circular dated 25 November 2009 to submit that the role of a consultant is only advisory and recommendatory in nature. They also submitted that the Government of Maharashtra on 22 July 2008, after scrutiny and evaluation of the bids, reconstituted the high‑power committee vide a government resolution dated 22 July 2008 and laid down the procedure with respect to the Joint Venture Agreement, including the memorandum of understanding to be done with the eligible entrepreneur., The accused submitted that on 1 December 2008 MSMCL directed all three bidders to submit draft Joint Venture Agreement A, in response to which M/s Adani Enterprises Limited submitted a draft JV A. The minutes of the 171st Board Meeting held on 15 December 2008 recorded that only Adani Enterprises Limited had submitted a draft, while M/s Sunil Hitech Engineers Limited and Gupta Coal failed to give a draft. The minutes also record that MSMCL prepared a draft agreement., It is the submission of the accused that this draft was not prepared by them, as the minutes note that aXYKno Capital was called upon to prepare a separate Joint Venture agreement in consultation with successful bidders. To corroborate this, the accused referred to comments prepared and submitted by the Managing Director of MSMCL in response to queries of the High Power Committee, stating that the Joint Venture partners were issued a copy of the draft Joint Venture Agreement prepared by MSMCL and a copy was also issued to consultant aXYKno., The accused obtained the draft Joint Venture Agreement issued by MSMCL through the Right to Information Act to show that it does not restrict sale or transfer of shares in contravention to the terms and conditions of the bid document, as there is no clause restricting sale or transfer of shares. They submitted that this is not a draft prepared by them., According to the statement of PW61, Shri Suresh Kewalramni, the then Vice President of aXYKno Capital Services Private Limited, the first draft of the Joint Venture agreement was prepared by aXYKno strictly in accordance with conditions mentioned in the bid document and was submitted to MSMCL. Clause 12.2 of that draft read: ‘Notwithstanding anything contained herein, a Party shall not sell any Equity Shares held by it in the Joint Venture Company.’ Proposed Clause 12.3 read: ‘AEL shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever.’, The accused submitted that they gave the last and final draft Joint Venture agreement after discussions with selected Joint Venture partners as per the directions of the Board of MSMCL, together with their letter dated 19 January 2009. The letter contained remarks of the then Managing Director of MSMCL: ‘Please put up this draft agreement before the Board on 21 January 2009 for discussion and approval.’ Clause 12.2 of that draft again provided that a Party shall not sell any Equity Shares held by it in the Joint Venture Company, and Clause 12.3 provided that the SPV shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever., The accused submitted that after providing the draft venture agreement, their term came to an end as, according to a letter dated 14 December 2007, the engagement was for a period of one year., The accused referred to a letter dated 23 January 2009 written by Accused D.G. Philip to the Principal Secretary (Industries), Government of Maharashtra, attaching the draft Joint Venture Agreement A finalized by the Board. The letter mentioned that the draft was finalized after a deep discussion with the Joint Venture partners in the meeting of the Board of Directors of the Corporation., The draft Joint Venture agreement attached to the aforementioned letter contains a clause on sale, pledge or transfer of shares. Clause 6.4.1 (Reserved Matters) provided that pledge of shares by SHEL in the Joint Venture Company in favour of any third party, lender or any other entity whatsoever would be subject to the approval of one Director nominated by MSMCL and one Director nominated by SHEL. Clause 12.4 dealt with share transfers to a third party., The records show that the High‑Power Committee of the Government of Maharashtra held various meetings to discuss the clauses and terms of the Joint Venture Agreement. After detailed discussions, the Joint Venture Agreement was put up for approval on 4 May 2009, approved by the High‑Power Committee on that date, subsequently approved by the Cabinet Committee on 18 June 2009 and executed between MSMCL and SHEL on 21 November 2009. This Joint Venture Agreement allowed transfer of shares by the Joint Venture Company to an SPV, pledge of shares in the Joint Venture Company by either party and sale of shares by either party in the Joint Venture Company to a third party., The accused submitted that their services were not taken to execute the Joint Venture Agreement between the selected Joint Venture partners and that Accused A‑3 had already completed its one‑year tenure in January 2009, whereas the Joint Venture Agreement was executed ten months after the completion of service of A‑3, aXYKno Capital Services Private Limited., Arguments on behalf of Accused A‑2, Sunil Ratnakar Gutte: The accused argued that draft Joint Venture agreements were called from H1 bidders (M/s Adani Enterprises Limited, M/s Sunil Hitech and M/s Gupta Coal) for the three coal blocks allocated to MSMCL. However, out of the three, only Adani Enterprises Limited submitted a draft agreement, as noted in the minutes of the 172nd Board Meeting of MSMCL dated 15 December 2008., The accused relied on a letter dated 28 January 2009 from Adani Enterprises Limited to the Chief Minister of Maharashtra requesting that the pledge or transfer of shares be permitted. As per the MSMCL draft, clause 12.2 provided that Party No. 2 shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever. In response to Adani’s request, it was suggested that the clause be made subject to clause 6.4.1(e), which provides that pledge of shares by SHEL in the Joint Venture Company in favour of any third party, lender or any other entity whatsoever shall be subject to the approval of at least one Director nominated by MSMCL and at least one Director nominated by SHEL., The accused submitted that clause 12.2 of the Joint Venture Agreement finally executed by the parties now provides that Party No. 2 shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever except as provided in the agreement. They argued that this shows the request of Adani Enterprises Limited was accepted by MSMCL and that they allowed pledge, mortgage or lien on their shareholdings as per the provisions of the draft Joint Venture Agreement., The accused submitted that the Central Bureau of Investigation has not produced on record the final Joint Venture Agreements executed between MSMCL and the H1 bidders of the Agarzari and Warora coal blocks. In the absence of these agreements, it is not established whether the changes in the Joint Venture Agreement vis‑à‑vis the conditions in the bid document were made for Accused No. 1 only or for all three Joint Venture partners, and whether Accused No. 1 was merely a beneficiary of the actions of another party, namely Adani Enterprises Limited., Decision of the Court: Vide an office memorandum dated 1 September 2007, the Government of Maharashtra constituted a High‑Level Committee to scrutinize bids received under the expression of interest, examine financial matters and make a memorandum of understanding and establish a Joint Venture for mineral development. The procedure provided that the Managing Director of MSMCL should scrutinize the bids, prepare a comparative chart, and in consultation with the Chief Executive Officer of MIDC or any other officer directed by the Government, prepare a draft memorandum of understanding/Joint Venture. The draft would then be placed before the Committee for decision, after which the Managing Director of MSMCL would take further action., Later, the High‑Power Committee in its meeting held on 20 November 2008 directed MSMCL to prepare a draft of the Joint Venture Company in respect of the three coal blocks. After selecting the H1 bidder for the Adkoli coal block, the successful bidder M/s Sunil Hitech Engineering Limited was called upon by MSMCL vide its letter dated 1 December 2008 to submit the draft agreement and shareholders’ agreement for further action. Similar requests were made to Adani Enterprises Limited and Gupta Coal, Nagpur, the successful bidders for the Agarzari and Warora coal blocks respectively., Pursuant to this letter, only Adani Enterprises Limited gave a draft Joint Venture Agreement for MSMCL’s consideration. Clause 7.3(e) of that draft permitted pledge of shares of the joint venture company in contravention to the terms and conditions of the bid documents, clause XVI(2)., The 171st Board Meeting of MSMCL took place on 15 December 2008. It was attended by Sh. Avinash Warjukar, Sh. D.G. Philip, Sh. V.S. Savakhande and Sh. A.M. Pophare, the latter two being Directors of MSMCL. Except for Sh. V.S. Savakhande, the other three persons were also present during the 165th Board Meeting of MSMCL held on 7 February 2008 when the terms and conditions of the bid document were finalized. These three persons therefore knew the terms and conditions of the bid document and consequently knew that the Joint Venture Agreement could not vary from those terms. The minutes of the 171st Board Meeting recorded that MSMCL had prepared a draft agreement and that the three private entrepreneurs selected were asked to submit drafts. Only Adani Enterprises Limited had submitted a draft; Sunil Hitech and Gupta Coal had not. It was decided that all entrepreneurs should be given another chance to submit drafts, and that axyKno Capitals, appointed as Financial Consultant to MSMCL, should obtain draft agreements from the entrepreneurs, prepare a final draft and submit it to the Managing Director, after which the Managing Director would convene a meeting of all partners, the Financial Consultant and a representative of MSMCL to finalise terms and conditions before placing the revised draft before the Board of Directors for consideration., The draft Joint Venture Agreement mentioned in the minutes of the 171st Board Meeting was placed on record by counsel for Accused A‑3 and A‑4 after obtaining it from MSMCL under the Right to Information Act. A perusal of the draft shows that it provided for no restriction on sale or pledge of shares by the Joint Venture partner., Conversely, clause 7.3 of this draft Joint Venture Agreement permitted pledge of shares by AEL in the Joint Venture Company in favour of any third party, lender or any other entity whatsoever, subject to the approval of at least one Director nominated by MSMCL and at least one Director nominated by AEL., The bid documents, clause XVI, stipulated that (1) the Joint Venture partner shall not sell its shareholding or create any third‑party rights in the SPV for the term of the Joint Venture agreement, and (2) the Joint Venture partner shall not pledge, mortgage or lien‑mark the shareholding or any rights in the SPV to any third party, lender or any entity whatsoever., The omission of clauses restricting sale or pledge of shares by the Joint Venture partner in the draft Joint Venture Agreement is therefore an incriminating circumstance against Accused A‑5, Sh. D.G. Philip, and Accused A‑6, Sh. Avinash Warjukar. Inclusion of clause 7.3 (Reserved Matters) permitting pledge of shares by AEL in the Joint Venture Company subject to director approval is likewise incriminating against them. This draft Joint Venture Agreement was proposed by MSMCL before the drafts of the Financial Consultant and of Adani Enterprises Limited were submitted to MSMCL., Accused A‑5, D.G. Philip, was specifically aware that aspects not in conformity with the tender documents could not be incorporated in the Joint Venture Agreement. This is evident from his letter dated 31 January 2009 addressed to the Principal Secretary (Industries), Energy and Labor Department, Mumbai, in which he stated that aspects not in conformity with the tender documents were not incorporated in the Joint Venture Agreement., In response to the minutes of the 171st Board meeting, the Financial Consultant gave its first draft of the Joint Venture Agreement by email dated 19 December 2008. According to this draft, pledge of shares in the Joint Venture Company was not permitted, as it did not contain any clause like clause 7.3 proposed by MSMCL and Adani Enterprises Limited permitting pledge of shares by the Joint Venture partner., Clause 6.4.1, which was proposed in the draft Joint Venture Agreement submitted by D.G. Philip with his letter dated 23 January 2009 to the Principal Secretary (Industries), Government of Maharashtra, is also available in the Joint Venture Agreement finally executed on 21 November 2009., The Financial Consultant did not recommend any clause allowing pledge of shares. Rather, it proposed clause 12.3 stating that AEL shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever, and added a non‑obstante clause 12.2 stating that, notwithstanding anything contained herein, a party shall not sell any Equity Shares held by it in the Joint Venture Company. Thus the consultant prohibited sale of shares in the Joint Venture Company., The Financial Consultant gave its second draft of the Joint Venture Agreement with its letter dated 12 January 2009. The draft clearly contained clause 12.2: ‘Notwithstanding anything contained herein, a Party shall not sell any Equity Shares held by it in the Joint Venture Company,’ and clause 12.3: ‘AEL shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever.’, The third draft, dated 19 January 2009, also contained clause 12.2 prohibiting sale of equity shares and clause 12.3 prohibiting pledge, mortgage or lien‑mark of the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever. The consultant’s tenure was for one year and ended on 19 January 2009 upon submission of the final draft., On 21 January 2009, Adani Enterprises Limited addressed a letter to Accused Avinash Warjukar in which one of the points raised for consideration was that the Joint Venture Agreement being finalized by the Board should be in agreement with Adani before submitting it to the High‑Power Committee., On the same date, SHEL also wrote a letter to the Managing Director of MSMCL for adding certain points in the draft Joint Venture Agreement, but it did not request any provision for sale or pledge of shares by the Joint Venture partner., The draft given by the Financial Consultant was discussed with the Joint Venture partners in the 172nd Board Meeting held on 21 January 2009. Accused Avinash Warjukar, Accused D.G. Philip and Sh. Anil Pophare, who were also members of the Board during the 165th Board Meeting when bid conditions were decided, were present. The minutes recorded that the Board decided to finalize the draft agreement after discussion with the partners and to place it before the Board for consideration., The minutes of the 173rd Board Meeting recorded that the draft agreement finalized by the Board for the development of the Agarzari, Warora and Marki‑Zari‑Jamni‑Adkoli coal blocks had been submitted to the High‑Level Committee for scrutiny. Some issues were raised by Gupta Coal, Adani Enterprises and Sunil Hitech for amendment. The High‑Level Committee directed the Managing Director to obtain comments of the Financial Adviser, which were then placed before the Board for approval after detailed discussion., On 23 January 2009, Accused D.G. Philip addressed a letter to the Principal Secretary (Industries) enclosing a draft Joint Venture Agreement after deep discussions with the three H1 bidders. The draft now permitted sale and transfer of shares. Clause 12.4 provided for share transfers to a third party, and Clause 12.5 dealt with the consequences of sale of shares in contravention of the agreement.
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Clause 12.2 provides that Party No. 2 shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever. Simultaneously, Clause 6.4.1 (Reserved Matters) permits pledge of shares by SHEL in the Joint Venture Company in favour of any third party, lender or any other entity whatsoever with the approval of one director nominated by Maharashtra State Mining Corporation Limited (MSMCL) and one director nominated by SHEL., On 28 January 2009, Messrs Adani Enterprises addressed a letter to the Chief Minister of the State of Maharashtra (reference D‑153, PDF 7968@7975). In paragraph five of the letter the company stated that there had been widescale changes in the Draft Joint Venture Agreement (JV A) submitted to the Chief Minister with respect to the matters discussed on 21 January 2009, and that the changes were detailed in Annexure B., One of the major differences pointed out by Adani Enterprises Limited was as follows: In the MSMC draft of JV A, Clause 12.2 states that Party No. 2 shall not pledge, mortgage or lien‑mark the shareholding or any rights in the Joint Venture Company to any third party, lender or any entity whatsoever. The Adani draft suggested that this provision should be subject to Clause 6.4.1(e)., At the meeting of the High Power Committee held on 30 January 2009, the Chief Minister directed that the proposal regarding the draft Joint Venture Agreement be resubmitted for consideration to the High Power Committee to resolve the views of different departments. The minutes of the meeting held on 9 April 2009 under the chairmanship of the Chief Secretary (reference D‑155, page 58, PDF 8224) record this direction., In a letter dated 31 January 2009, Assistant Director General D. G. Philip wrote to the Principal Secretary (Industries), Industries, Energy and Labour Department, Mumbai, referring to the High Power Committee meeting of 30 January 2009 (PDF 3652). The letter commented that the Joint Venture Agreement being finalised by the Board should be agreed with the Department before submission to the High Power Committee. The Joint Venture Partners were issued a copy of the draft prepared by MSMC, and a copy was also issued to the consultant Messrs Axykno, who prepared a revised draft after discussions with all partners. The revised draft was placed before the Board of Directors for approval. The Board considered all aspects of the partners’ inputs and incorporated those that were in conformity with the tender terms and conditions; aspects not in conformity were omitted. The High Power Committee may consider the partners’ views and take a suitable decision (emphasis supplied)., It should be noted that the tenure of Assistant Director General D. G. Philip in MSMCL ended on 26 February 2009., Thereafter, a meeting was held on 9 April 2009 under the chairmanship of the Chief Secretary regarding the formation of Joint Ventures with Maharashtra State Mining Corporation, Nagpur for the development of coal blocks (reference D‑155, page 58, PDF 8224)., Subsequently, at the High Power Committee meeting of 4 May 2009 the draft Joint Venture Agreement was approved (reference D‑137, page 4, PDF 6825) and directed to be placed before the Infrastructure Committee. The Infrastructure Committee approved it in its meeting of 18 June 2009 (reference D‑165, PDF 6808). The agreement was executed between MSMCL and Messrs Sunil Hi‑Tech on 21 November 2009 (reference D‑61, PDF 5847). Clause 6.4.1(e) now permits pledge of shares by SHEL in the Joint Venture Company in favour of any third party, lender or any other entity whatsoever subject to the approval of at least one director nominated by MSMCL and one director nominated by SHEL, while Clause 12.2 permits pledging of shares subject to the provisions of the agreement., Considering the manner in which the Joint Venture Agreement was finalised, permitting sale as well as pledge of shares, it is evident that Assistant Director General D. G. Philip and Assistant Director General Avinash Warjurkar were fully aware of the terms and conditions of the bid documents prohibiting sale or pledge of shares. Despite this knowledge, the very first draft proposed by MSMCL in the 171st Board Meeting held on 15 December 2008 (Clause 7.3) permitted pledge of shares of the Joint Venture Company subject to the approval of one director nominated by MSMCL and one director nominated by the Joint Venture Partner, in contravention of the bid documents and without any restriction on sale or transfer of shares. Once they themselves had proposed a draft omitting the prohibition on sale or pledge of shares and providing for conditional pledge, it was obvious that they would not have highlighted the bid‑document restrictions before the High Power Committee or the Infrastructure Committee. The draft JV Agreement submitted by Assistant Director General D. G. Philip with his letter dated 23 January 2009 also provided for pledging of shares in Clause 6.4.1 and transfer of shares in Clause 12.4., The Financial Advisor, in three of his draft Joint Venture Agreements, sought to propose a prohibition on sale or pledge of shares in the Joint Venture Company, but this proposal was not accepted by the Board of Directors of MSMCL., Even before Messrs Adani Enterprises Limited sent its letter dated 28 January 2009 to the Chief Minister seeking pledge of shares subject to Clause 6.4.1(e), the Board of Directors of MSMCL, in its 172nd Board Meeting held on 21 January 2009, discussed the draft paragraph‑wise with all concerned partners (i.e., successful bidders), made amendments and obtained unanimous approval. This draft permitted both pledge and sale of shares of the Joint Venture Company, whereas the bid documents prohibited both actions., If any other director of MSMCL had knowledge of the bid documents but approved a Joint Venture Agreement permitting sale and pledge of shares, that director may also be summoned to face trial once evidence to that effect is recorded. Similarly, if any other officer of the State of Maharashtra, including members of the High Power Committee or the Infrastructure Committee, had knowledge of the bid‑document restrictions and still approved JV A permitting sale or pledge of shares, they may also be summoned during trial once such evidence comes on record., The Joint Venture Agreement was executed when Shri N. K. Sudhanshu was the Managing Director of MSMCL. Certain changes were made to the agreement after its approval by the High Power Committee and the Infrastructure Committee. One change introduced Clause 12.3.3, which provides that Party No. 2 must maintain at least 51 % in the Special Purpose Vehicle (SPV) at all times; in the case of a consortium, the consortium partner should have a minimum of 5 % holding in the SPV., This addition is not incriminating against Shri N. K. Sudhanshu as it merely protects the interests of MSMCL., Another change introduced Clause 12.2 by adding the words “except as otherwise provided in this agreement” at the end. This addition is clarificatory because pledging of shares was already provided for in Clause 6.4.1(e) of the proposed Joint Venture Agreement submitted by Assistant Director General D. G. Philip to the State of Maharashtra and approved by the High Power Committee and the Cabinet Committee., A further amendment to Clause 12.3.2 introduced the provision that “the methodology undertaken by the party for transfer of shares shall be vetted by the Joint Venture Company”. Earlier, such transfers had to be vetted by the Joint Venture Partner. This amendment therefore favoured MSMCL, and no criminality can be imputed to Shri N. K. Sudhanshu on this basis., These changes were approved by the Government of Maharashtra, as evidenced by a letter dated 23 October 2009 from Shri V. S. Kulkarni, Secretary, Government of Maharashtra (reference D‑369, page 125)., The conclusion of this discussion is that the Financial Advisor was not in conspiracy with either Assistant Director General D. G. Philip, Assistant Director General Avinash Warjurkar, Messrs SHEL or Messrs Sunil Ratnakar Gutte, because in all three drafts submitted by him he clearly proposed provisions prohibiting sale or pledge of shares in the Joint Venture Company, which would not be the conduct of a co‑conspirator., Whether Messrs SHEL was in conspiracy with Assistant Director General D. G. Philip and Assistant Director General Avinash Warjurkar for proposing the draft Joint Venture Agreement without restricting sale and pledge of shares is a question of fact. The records show that Messrs SHEL did not submit any draft Joint Venture Agreement containing provisions for sale or pledge of shares in the Joint Venture Company despite a request from MSMCL for its draft. Messrs SHEL wrote a letter dated 21 January 2009 to MSMCL but did not request permission to sell or pledge shares in the Joint Venture Company., These aspects initially suggest that Messrs SHEL had no interest in securing the right to sell or pledge shares in the Joint Venture Company. However, considering the entirety of the facts and circumstances, it is noted that Messrs SHEL had no need to submit any draft enabling sale or pledge because the very first draft proposed by MSMCL, independent of the opinion of its Financial Consultant, already permitted conditional pledge of shares (Clause 7.3) and was silent on any restriction on sale. Consequently, there was no occasion for SHEL to provide its own draft, as it would have benefited from the MSMCL draft., Where a public servant commits criminal misconduct punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988, the private person who benefits from such misconduct is liable to be charged for the offence of criminal conspiracy with the public servants for securing a valuable thing or pecuniary advantage (see Surender Mohan Kotwal v. State of Himachal Pradesh, (2018) 15 SCC 349; Surender Mohan Kotwal v. State of Himachal Pradesh, (2020) 19 SCC 784; State of Madhya Pradesh v. Yogendra Singh Jadon, 2020 (12) SCC 588)., The submission of Assistant Director General D. G. Philip that the terms and conditions mentioned in the bid documents are not final or mandatory is rejected. His claim that there was no restriction on MSMCL for changing the terms and conditions of the tender document while proposing JV A lacks any legal backing, as there can be no justification for disregarding the tender conditions when formulating JV A with the successful bidders. Assistant Director General D. G. Philip and Assistant Director General Avinash Warjurkar had full knowledge of the bid conditions, having vetted the tender document during the 165th Board Meeting of MSMCL. They first proposed JV A permitting conditional pledge of shares and remaining silent on sale of shares, and later submitted a draft to the Government of Maharashtra that conditionally permitted the Joint Venture Partner to pledge shares and also permitted sale of shares to a third party. Consequently, they are liable to be charged under Section 13(1)(d) of the Prevention of Corruption Act, 1988, and the beneficiary Messrs SHEL, together with both public servants, are liable under Section 120B read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Whether Messrs SHEL should be charged, given its liquidation status, will be discussed later in the order., Fourth Allegation: Messrs SB Engineering Associates, which was the consortium partner of Messrs SHEL at the time of bidding and whose mining experience credentials qualified SHEL technically, withdrew from the consortium after paying its share of equity capital as consortium partner., According to PW‑80 Shri M. S. Bhasin, Partner of Messrs S. B. Engineering Associates, Nagpur, and Sunil Gutte, Director of Messrs Sunil Hi‑Tech Engineers Ltd., a letter dated 21 December 2009 stated that a Joint Venture Agreement had been executed between MSMC and Sunil Hi‑Tech Engineers Ltd., under which Sunil Hi‑Tech Engineers Ltd. was to hold 49 % equity in the SPV. Clause 12.3.3 of the Joint Venture Agreement required the consortium member to hold 5 % equity of the Joint Venture Partner. Sunil Gutte informed that they had already paid Rs 18.65 crore to MSMC and requested PW‑80 to contribute 5 % of Rs 18.65 crore (Rs 93 lakh) as the initial subscription amount., However, PW‑80, in a letter dated 26 February 2010, refused to contribute the 5 % equity, stating that this condition was not part of the Memorandum of Understanding dated 14 March 2008 executed between Sunil Hi‑Tech Engineers Ltd. and S. B. Engineering Associates. PW‑80 expressed a wish to continue as a consortium member without making any investment., In a letter dated 2 July 2010, PW‑80 informed Sunil Hi‑Tech Engineers Ltd. that MSMC had imposed a post‑tender condition to hold 5 % equity by the consortium member, a condition not mentioned in the MSMC tender or the Memorandum of Understanding dated 14 March 2008. Being unable to invest the required equity, PW‑80 decided to withdraw from the consortium and requested Sunil Hi‑Tech Engineers Ltd. to relieve him from the role and responsibilities of the consortium membership under the Memorandum of Understanding dated 14 March 2008., Messrs MSMC Adkoli Natural Resources Ltd (a Joint Venture company between MSMCL and Messrs SHEL, as per Clause 1 of the Joint Venture Agreement) was incorporated on 18 February 2010 with the Registrar of Companies, Maharashtra, at Mumbai. In this Joint Venture company, MSMCL held 51 % and Sunil Hi‑Tech Engineers Ltd. held 49 % shareholding., Messrs Sunil Hi‑Tech Energy Pvt. Ltd (the SPV as per Clause 12.3.3 of the Joint Venture Agreement) was incorporated on 7 February 2008 with the Registrar of Companies, Maharashtra, at Mumbai. The 49 % shareholding of Sunil Hi‑Tech Engineers Ltd. in the Joint Venture company MSMCL Adkoli Natural Resources Ltd. was transferred into the SPV named Sunil Hi‑Tech Energy Pvt. Ltd., The bifurcation of the 49 % shareholding of Sunil Hi‑Tech Engineers Ltd. was as follows: 37.95 % of the shares in the SPV were held by Messrs SHEL Investment Consultancy Pvt. Ltd. (an affiliate of SHEL) and 62.05 % of the shares in the SPV were held by Sunil Hi‑Tech Engineers Ltd., Messrs SHEL Investment Consultancy Private Ltd, an affiliate of Messrs SHEL (as per Clause 12.3.2 of the Joint Venture Agreement), was incorporated on 20 August 2009 with the Registrar of Companies, Maharashtra, at Mumbai., Messrs Gangakhed Sugar and Energy Private Ltd was incorporated on 28 September 2007 with the Registrar of Companies, Maharashtra, at Mumbai., Messrs Jaypee Development Corporation Ltd (a division of Jaypee Infra‑Ventures, formerly Jayprakash Power Ventures Ltd) was incorporated on 5 December 2007 with the Registrar of Companies, Delhi. Jaypee Development Corporation Ltd is a wholly‑owned subsidiary of Jaypee Infra‑Ventures., A Share Purchase Agreement dated 21 April 2011 was executed between Messrs SHEL, Messrs Sunil Hi‑Tech Energy Private Ltd and Messrs Jaypee Development Corporation Ltd, under which Messrs SHEL sold 91,72,800 shares held by it in Sunil Hi‑Tech Energy Private Ltd (constituting 49 % of the total equity) for a consideration of Rs 15 crore to Messrs JDCL (reference D‑373, pages 65‑88, PDF 12066‑12091). Rs 5 crore was paid on 5 November 2009 prior to execution of the Joint Venture agreement (reference D‑172, page 1, PDF 12069‑12093) and the remaining Rs 10 crore was paid on 21 April 2011 (reference D‑173, page 3)., A Debenture Subscription Agreement dated 31 March 2010 was executed between Messrs SHEL Investments Consultancy Private Ltd and Messrs Jaypee Development Corporation Ltd. Under this agreement, Messrs SHEL Investments Consultancy Private Ltd issued 1,200 convertible debentures having a face value of Rs 1 lakh each to raise funds for its business requirements. Messrs JDCL agreed to subscribe to these debentures for a consideration of Rs 12 crore, which was paid on 21 April 2011 (reference D‑373, page 48, PDF 12050)., A Share Pledge Agreement dated 21 April 2011 was executed between Messrs SHEL Investments Consultancy Private Ltd and Messrs JDCL. Under this agreement, Messrs SHEL Investments Consultancy Private Ltd, which held 71,04,240 shares of the SPV Sunil Hi‑Tech Energy Private Ltd (equal to 37.95 % of the total equity), pledged those shares to Messrs JDCL together with all rights, including voting rights, as security for the subscription of the 1,200 optionally convertible debentures of Rs 1 lakh each for a total consideration of Rs 12 lakh (reference D‑373, pages 1‑13, PDF 119974). According to the chargesheet, this share pledge agreement was contrary to the provisions of the Joint Venture Agreement., With the execution of the Share Purchase Agreement and the Share Pledge Agreement dated 21 April 2011, Messrs Sunil Hi‑Tech Engineers Ltd. was left with only 13.05 % shareholding, which violates Sub‑clause 12.3.3 of Clause 12 of the Joint Venture Agreement (i.e., Party No. 2 must maintain at least 51 % of shares in the SPV at all times)., As noted earlier, the bid documents (Section 4, Special Conditions of Joint Venture Agreement SPV, under Clause XVI(1)) prohibited the Joint Venture Partner from selling its shareholding or creating any third‑party rights in the SPV. Sub‑clause (2) of Clause XVI further provided that the Joint Venture Partner shall not pledge, mortgage or lien‑mark the shareholding or any rights in the SPV to any third party, lender or any entity whatsoever., By entering into the Share Purchase Agreement dated 21 April 2011, Messrs Sunil Hi‑Tech Engineers Ltd. violated the bid conditions., Sub‑Clause 12.3.3 of Clause 12 of the Joint Venture Agreement dated 21 November 2009 provided that Party No. 2 could transfer its shares to an SPV for the specific purpose of carrying on the business as per the agreement, but it was mandatory for Party No. 2 to maintain at least 51 % share in the SPV at all times during the period of the agreement. In this case, Party No. 2 was maintaining only 13.05 % shares in the SPV, contrary to the required 51 %., In the case of a consortium, the consortium partner should have a minimum cash equity holding of 5 % in the SPV. However, as evident from the statement of PW‑80, the consortium partner Messrs S. B. Engineering Associates had withdrawn from the consortium and was holding no equity in the SPV., Clause 12.4.1.1 of the Joint Venture Agreement provides that a party intending to transfer all or part of its share shall first offer the shares to the other party. Clause 12.5 states that in the event of acquisition of shares in a manner not specifically permitted by the agreement, the remaining party has the right to purchase all such shares at the lower of (i) the fair value minus 10 % thereof or (ii) the apparent consideration paid. Failure of the remaining party to purchase the default shares does not validate the transfer, and such transfer shall be null and void (reference D‑60, page 31)., In terms of Clause 3.8A of the Joint Venture Agreement, the following amounts were received by MSMCL from SHEL: (1) 28 April 2008 – Rs 11,25,00,000 (15 % of sweat money); (2) 18 August 2009 – Rs 7,40,00,000 (10 % of sweat money); (3) 15 March 2010 to 27 April 2011 – Rs 42,72,085 (amount spent by MSMCL and later reimbursed by SHEL); (4) 29 July 2010 to 31 March 2014 – Rs 9,62,14,574 (interest on deferred sweat money). Total received: Rs 28,69,86,659., The following amounts were received by SHEL and its subsidiaries/associates from Messrs JDCL: (1) 5 November 2009 to 21 April 2011 – Rs 15,00,00,000 for the sale of 91,72,000 shares of the SPV; (2) 21 April 2011 – Rs 12,00,00,000 for the issue of 1,200 debentures by SHEL Investments Consultancy (P) Ltd; (3) 23 May 2011 to 26 May 2015 – Rs 12,99,58,000 as an unsecured loan for payment of interest on deferred sweat money to MSMCL. Total received: Rs 39,99,58,000., According to the chargesheet, Messrs JDCL also purchased 35 lakh shares of Messrs Gangakhed Sugar and Energy Private Ltd (a subsidiary of SHEL) at a face value of Rs 10 per share with a premium of Rs 90 per share (total value Rs 100 per share) for Rs 35 crore., Therefore, in total Rs 74,99,58,000 was received by SHEL from JDCL on account of purchase of shares, issuance of debentures and unsecured loans., Submissions of Shri Sunil Ratnakar Gutte (A‑2): The learned counsel for the accused filed a chronology, representation and note on changes in shareholdings of the Joint Venture company MSMCL Adkoli Natural Resources and the SPV Sunil Hi‑Tech Energy Private Limited., The accused submit that on 18 February 2010, the Joint Venture company MSMCL Adkoli Natural Resources Limited was formed with a 51:49 shareholding between the two Joint Venture partners (reference D‑61, page E, 5847). MSMCL owned 51 % and Sunil Hi‑Tech Engineers Ltd. owned 49 %., On 25 February 2010, the 49 % shareholding of SHEL in the Joint Venture company was transferred to the SPV Sunil Hi‑Tech Energy Private Limited in compliance with Clause 12.3.3 of the Joint Venture Agreement (reference D‑67, page E, 5876). The accused maintain that the shareholding of both Joint Venture partners remained constant at 51:49, with no change in shareholding or pledge/mortgage/lien of the shares of the Joint Venture company., The accused state that 37.5 % of the shares of the SPV Sunil Hi‑Tech Energy Limited were owned by SHEL Investment Consultancy Private Limited and 62.5 % were held by Sunil Hi‑Tech Engineers Limited., Sunil Hi‑Tech Engineers Limited sold 49 % of its shares to JDCL, leaving it with 13.5 % shares., All 37.5 % of the shares owned by SHEL Investment Consultancy Private Limited were pledged., The accused submit that the shareholding of Party No. 2 (Sunil Hi‑Tech Engineers Limited) in the SPV after sale and pledge (including pledged shares) remained 51 % (37.5 % + 13.5 % = 51 %)., It is the accused’s submission that the shareholding in the SPV Sunil Hi‑Tech Energy Private Limited was divided in the ratio of 51:49 between Party No. 2 (SHEL with its affiliate) and JDCL, as permitted by the Joint Venture Company. The flow of shares is shown in the following tabulated manner: 37.5 % shares owned by SHEL Investment Consultancy Pvt. Ltd in the SPV were pledged to JDCL; after sale and pledge, Party No. 2 held 37.5 % + 13.5 % = 51 % in the SPV; JDCL held 49 %., The accused assert that pledging of shares in the Joint Venture Company was allowed under the Joint Venture Agreement and that no shares were actually pledged. The Joint Venture Agreement did not restrict pledging of shares by SHEL Investment Consultancy., The accused rely on Clause 12.5 of the Joint Venture Agreement, which deals with the consequences of sale of shares in contravention of the agreement. Clause 12.5 provides that if any person acquires shares in a manner not specifically permitted by the agreement (the “Default Shares”), the remaining party or any person nominated by the remaining party shall have the right, but not the obligation, to purchase such shares at the lower of (i) the fair value minus 10 % thereof, or (ii) the apparent consideration paid. Failure of the remaining party to purchase the default shares does not validate the transfer, and such transfer shall be null and void. “Fair Value” shall be determined by an independent advisor selected by the Board and shall be final, conclusive and binding on the Joint Venture Company, the parties and any persons purporting to have acquired the default shares., The accused submit that even the sale in the present case was not in contravention of the Joint Venture Agreement and was done with prior intimation and approval of MSMCL. They rely on the minutes of the 181st Board of Directors meeting of MSMCL held on 23 December 2010 (reference D‑78, PDF 6056), where resolution No. 9 approved the transfer of 49 % (including 5 % of the technical partner) equity shares in the SPV Sunil Hi‑Tech Energy Private Limited by Sunil Hi‑Tech Engineers Limited to the Jaypee Group, subject to the condition that the transferor and transferee execute necessary undertakings, deed of adherence and verification of the technical competency of the transferee by the Managing Director. The resolution also authorized the Managing Director to take all necessary acts, deeds and things to give effect to the resolution., Regarding the pledge of shares, the accused submit that the pledge was done in accordance with the Joint Venture Agreement., The Central Bureau of Investigation (CBI) alleges irregularities in the sale and pledge of shares by the accused No. 1 company and its affiliates. The CBI alleges that Messrs SHEL, prior to execution of the Joint Venture Agreement, was in contact with the Jaypee group to off‑load its 49 % equity (for Rs 15 crore) in the SPV, had executed a term sheet and taken an advance of Rs 5 crore. The pledge of 71,04,240 shares (for Rs 12 crore) of SHEL in favour of JDCL with all rights, including voting rights, is contrary to the terms and conditions of the bid document (Clause XVI, sub‑clause 2) as well as the Joint Venture Agreement (Clause 12.2). This resulted in majority control of the SPV Sunil Hi‑Tech Energy Private Limited being transferred to JDCL/Jaypee group by SHEL or its associates through sale and pledging of shares., Clause 12.2 of the Joint Venture Agreement states that Party No. 2 shall not pledge, mortgage or lien‑mark its shareholding or any rights in the Joint Venture Company to any third party, lender or entity whatsoever except as provided in the agreement.
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The aforesaid clause was never breached and the shareholding of the Joint Venture Company M/s MSMCL Adkoli Natural Resources Ltd. remained 51:49 between M/s MSMCL and M/s SHEL, as stipulated in the Joint Venture Agreement, and the same is evidenced from the records of the Registrar of Companies which form part of the prosecution's own relied upon documents (Reference D-21, E-Page 2234, annual return of JVC MSMCL Adkoli Natural Resources). Clearly, the Central Bureau of Investigation's reliance on the aforesaid clause of the Joint Venture Agreement is misplaced and has no relevance to the case presented by the Central Bureau of Investigation., The accused has submitted that pledging of shares will not be an offence under section 420 of the Indian Penal Code because, even if it is presumed that Accused No. 1 company made a misrepresentation of sale or pledge of shares, the same was post facto to the allocation and does not induce the delivery of any property. It is also submitted that Accused No. 3, Accused No. 4, Accused No. 5 and Accused No. 6 had already left M/s MSMCL when the sale or pledge of shares was made. The accused have given the details of events in their submissions as follows: 17 January 2009 – M/s aXYKno ceased to be Financial Consultant to M/s; 26 February 2009 – Sh. D.G. Philip ceased to be Managing Director, M/s MSMCL; 21 November 2009 – a Joint Venture Agreement was executed between M/s SHEL and M/s MSMCL permitting the joint venture partner to transfer its shares to its affiliates; on behalf of M/s MSMCL, PW-36 Sh. N.K. Sudhanshu signed the Joint Venture Agreement; 28 June 2010 – Sh. Avinash Warjukar ceased to be Chairman; 23 December 2010 – Sh. Sanjay Mukherjee, Managing Director, M/s MSMCL chaired the 181st meeting of the Board of M/s MSMCL wherein the Board members approved the sale of 49% shares in the special purpose vehicle M/s SHEPL after taking legal opinion from advocates of M/s MSMCL; 21 April 2011 – Share Purchase Agreement executed between Accused No. 1 Company Sunil Hi-Tech Energy Private Ltd and M/s Jaypee Development Corporation Ltd; 21 April 2011 – Share Pledge Agreement executed between SHEL Investment Consultancy Private Ltd and the Accused No. 1 Company and M/s Jaypee Development Corporation Ltd; 21 April 2011 – Two Special Powers of Attorney also executed in terms of the Share Pledge Agreement., The accused has submitted that the accused persons had no common purpose or intent in the sale or pledge of shares, both of which were subsequent to the disassociation of Accused No. 3 Financial Consultant, its Director, Managing Director and Chairman. Decision of the Supreme Court of India: the bid on behalf of M/s Sunil Hi-Tech Engineers Ltd was submitted by Satish Kulkarni, General Manager (Geology). Sh. Sunil Ratnakar Gutte had written a letter dated 21 January 2009 to the Managing Director, MSMCL but did not request permission to sell or pledge the shares of the joint venture partner in the joint venture company., Joint Venture Agreement was executed on 21 November 2009 and is signed by Vijay R. Gutte, Director (Finance), M/s Sunil Hi-Tech Engineers Limited. Sale of shares by the joint venture partner in the joint venture company was permitted by the Joint Venture Agreement. The ratio of shares of MSMCL and M/s Sunil Hi-Tech Engineers Ltd in the joint venture company was 51:49. However, on 31 October 2009, i.e., even before the execution of the Joint Venture Agreement, a Term Sheet was signed between M/s Sunil Hi-Tech Engineers Ltd (signed by Ratnakar Gutte) and Jaiprakash Associates Ltd. This Term Sheet provided the indicative terms and conditions for the proposed acquisition of shares of Sunil Hi-Tech Energy Private Ltd by Jaiprakash Associates Ltd or its associates, affiliates or nominees. The Term Sheet noted that Sunil Hi-Tech Energy Private Ltd would be a special purpose vehicle formed as a holding/investment company to hold a 49% stake of the joint venture company to be incorporated with MSMCL. It further noted that the acquirer intended to acquire equity shares of face value Rs. 10 each representing 49% of the equity share capital for a purchase consideration of Rs. 15 crores. On 5 November 2009, a sum of Rs. 5 crores was credited by Jaiprakash Industries Ltd into the account of M/s Sunil Hi-Tech Engineers Ltd., As noted above, the Joint Venture Agreement permitted formation of a Special Purpose Vehicle (SPV) by the joint venture partner, subject to M/s Sunil Hi-Tech Engineers Ltd maintaining a 51% shareholding in the SPV. On 18 February 2010, a deed of adherence was executed between M/s MSMCL, M/s Sunil Hi-Tech Engineers Ltd and M/s Sunil Hi-Tech Energy Private Ltd whereby 49% shareholding of M/s Sunil Hi-Tech Engineers Ltd in the joint venture company was transferred in favour of M/s Sunil Hi-Tech Energy Private Ltd, the SPV. This deed of adherence is signed by Sunil Ratnakar Gutte on behalf of M/s Sunil Hi-Tech Engineers Ltd. 37.5% of the shares of the SPV M/s Sunil Hi-Tech Energy Private Ltd were owned by M/s SHEL Investment Consultancy Private Ltd and 62.5% of the shares were held by M/s Sunil Hi-Tech Engineers Ltd., On 23 March 2010, another deed of adherence was executed between Sunil Hi-Tech Engineers Limited (as existing shareholder), SHEL Investment Consultancy Services Limited (as new shareholder), Sunil Hi-Tech Energy Private Ltd, MSMCL and MSMC Adkoli Natural Resources Limited (as Joint Venture Company). This deed recorded that the existing shareholder entered into a Joint Venture Agreement with MSMC relating to development and operation of the Adkoli Coal Block through the Joint Venture Company. It also recorded that the existing shareholder and the company entered into a Deed of Adherence with MSMC on 25 February 2010 wherein all rights and obligations of the existing shareholder as the joint venture partner of MSMC were transferred to the company (being a SPV of the existing shareholder) as permitted under Clause 12.3.3 and Clause 14.4 of the Agreement. The deed further recorded that the new shareholder proposed to purchase 71,04,240 shares of the company from the existing shareholder Sunil Hi-Tech Engineers Limited for a value of Rs. 17 each aggregating to Rs. 12,07,72,080 (Rupees Twelve Crores Seven Lakhs Seventy‑Two Thousand and Eighty Only). The new shareholder (SHEL Investments Consultancy Pvt. Ltd.) undertook to be bound by the Joint Venture Agreement and Deed of Adherence in all respects as if it were a party to the deed., In the 181st meeting of the Board of Directors of MSMCL held on 23 December 2010, it was resolved that the transfer of 49% (including 5% shares of Technical Partner) equity shares in the SPV Sunil Hi-Tech Energy Private Ltd by Sunil Hi-Tech Engineers Ltd to the Jaypee group be approved, subject to the condition that the transferee company execute a necessary undertaking, deed of adherence and that the technical competency of the transferee be verified by the Managing Director. On 21 April 2011, 49% shares of M/s Sunil Hi-Tech Engineers Ltd were sold to M/s JDCL. The share purchase agreement was signed by Ratnakar Gutte on behalf of Sunil Hi-Tech Engineers Ltd. On the same day, a Share Pledge Agreement was executed between M/s SHEL Investment Consultancy Private Ltd (SHEL Affiliate) and M/s Jaypee Development Corporation Ltd. Under this agreement, M/s SHEL Investment Consultancy Private Ltd, which held 71,04,240 shares of the SPV (equal to 37.95% of the total equity), pledged those shares to M/s JDCL along with all rights, including voting rights, as security towards the subscription of 1,200 optionally convertible debentures of Rs. 1 lakh each for a total consideration of Rs. 12 crores. This agreement is signed by Ratnakar Gutte on behalf of Sunil Hi-Tech Engineers Ltd., From the terms and conditions of the Joint Venture Agreement and the minutes of the 181st meeting of the Board of Directors of MSMCL, it is evident that the joint venture partner was permitted to sell 49% of its shareholding in the SPV, which was sold by M/s Sunil Hi-Tech Engineers Ltd in M/s Sunil Hi-Tech Energy Private Ltd. To that extent, there was no illegality as the sale was permitted by the Joint Venture Agreement. However, a charge has been ordered to be framed against Sh. D.G. Philip and Sh. Avinash Warjukar for criminal misconduct for proposing sale of shares in the draft Joint Venture Agreement submitted to the State of Maharashtra, and a charge is also ordered to be framed against M/s Sunil Hi-Tech Engineers Ltd, Sh. D.G. Philip and Sh. Avinash Warjukar under section 120‑B read with section 13(1)(d) of the Prevention of Corruption Act, 1988., So far as the pledge of shares is concerned, the pledge was not made in terms of Clause 6.4.1(e) of the Joint Venture Agreement because it was not approved by one director of MSMCL and one director of M/s Sunil Hi-Tech Engineers Ltd. The submission of the accused that there was no violation of the Joint Venture Agreement is incorrect. The deed of adherence dated 25 February 2010 confirmed that Sunil Hi-Tech Energy Private Ltd had been supplied with a copy of the Joint Venture Agreement and had undertaken to abide by the agreement in all respects as if it were a party to the agreement. Therefore, the SPV, being bound by the Joint Venture Agreement, could not have sold its shares resulting in a reduction of Sunil Hi-Tech Engineers Ltd's shareholding below 51% in the SPV. Moreover, any pledging could have been permissible only by following Clause 6.4.1(e), i.e., with the approval of one director of MSMCL and one director of Sunil Hi-Tech Engineers Ltd., Similarly, the affiliate company SHEL Investments Consultancy Pvt. Ltd. had also undertaken in the Deed of Adherence dated 30 March 2010 to be bound by the Joint Venture Agreement and Deed of Adherence dated 25 February 2010 in all respects as if it were a party to the deed. The pledging of shares by the affiliate SHEL Investments Consultancy Pvt. Ltd. in the SPV Sunil Hi-Tech Energy Private Ltd without following Clause 6.4.1(e) will come under section 420 of the Indian Penal Code because Sunil Hi-Tech Engineers Ltd had entered into the Joint Venture Agreement with MSMCL promising not to pledge its shares except by following the procedure provided for in Clause 6.4.1(e). This promise was binding on the SPV by virtue of the deed of adherence dated 25 February 2010 and was also binding on the affiliate by virtue of the deed of adherence dated 30 March 2010. The pledging resulted in wrongful gain to Sunil Hi-Tech Engineers Ltd, and under the definition of \dishonestly\ in section 24 of the Indian Penal Code, a charge under section 420 of the Indian Penal Code is to be framed against M/s Sunil Hi-Tech Engineers Ltd. The intention to cheat is evident as SHEL had signed a term sheet agreeing to sell 49% of its shares in the SPV in favour of the Jaypee corporation even before entering into the Joint Venture Agreement with MSMCL, received Rs. 5 crores before the signing of the Joint Venture Agreement, and pledged its shares with voting rights to Jaypee Associates without the required approvals, contravening the terms of the Joint Venture Agreement., The next question is whether a charge under section 420 of the Indian Penal Code can also be framed against Sunil Ratnakar Gutte. The learned counsel for the accused has submitted that a director cannot be prosecuted unless the director has committed or omitted any specific act or the statute provides for vicarious liability for the offence committed by the company. It is submitted that the offence under section 420 of the Indian Penal Code does not attract vicarious liability of the directors, relying on the judgment in Sunil Bharti Mittal v., There are three documents which need to be discussed. First, a letter sent on 21 January 2009 to MSMCL signed by Sunil Ratnakar Gutte requesting certain changes in the Joint Venture Agreement. Second, the Deed of Adherence dated 23 March 2010 signed by him, which shows that he knew that the SPV Sunil Hi-Tech Engineers Ltd and SHEL Investment Consultancy Services Limited were bound by all the obligations in the Joint Venture Agreement. Third, the minutes of the meeting of the Board of Directors of Sunil Hi-Tech Engineers Limited held on 30 January 2010 authorising Sunil R. Gutte and other directors to sign and execute Share Purchase Agreements, Shareholders Agreements and Share Pledge Agreements as may be required. However, there is no specific omission or commission on his part vis‑à‑vis the pledge of shares by SHEL Investment Consultancy Pvt. Ltd. The Share Pledge Agreement on behalf of SHEL Investment Consultancy Pvt. Ltd. is signed by Ratnakar Gutte. The minutes of the Board meeting approving the pledge of shares showing the presence of Sunil Ratnakar Gutte are not on record. Therefore, in the absence of vicarious liability of the directors and any specific role attributed to Sunil Ratnakar Gutte in the pledging of shares, he cannot be charged merely for being a director of Sunil Hi-Tech Energy Ltd, Sunil Hi-Tech Engineers Ltd or SHEL Investment Consultancy Pvt. Ltd., However, it is made clear that during trial, if evidence shows culpability of any director of SHEL in the pledge of shares, he may be summoned at that stage., The Official Liquidator has mentioned in the application that M/s Sunil Hi-Tech Engineers Ltd (Corporate Debtor) is undergoing liquidation under the provisions of the Insolvency and Bankruptcy Code, 2016 pursuant to the orders of the National Company Law Tribunal, Mumbai dated 25 June 2019. Under Section 34 of the Code, the liquidator is exercising all the powers of the Board of Directors, key managerial personnel and the partners of the corporate debtor and is representing the corporate debtor before this Court under section 35(k) of the Code. The liquidator has relied on Section 32A, inserted by the Insolvency and Bankruptcy Code (Amendment) Act, 2020, which provides that the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan is approved, provided the plan results in a change in management or control to a person who was not a promoter, manager, controller or related party of the corporate debtor, or a person against whom the investigating authority has reason to believe had abetted the offence. The provision also states that persons who were designated partners, officers in default, or otherwise in charge of the corporate debtor and directly or indirectly involved in the commission of the offence shall continue to be liable to prosecution notwithstanding the cessation of liability of the corporate debtor., The learned counsel for the Official Liquidator has referred to the judgment of the Supreme Court of India in Manish Kumar v. Union of India (2021) upholding the constitutionality of Section 32A of the Code, as well as to Tata Steel BSL Limited v. Union of India (2020), Nitin Jain Liquidator PSL Limited v. Enforcement Directorate, Dewan Housing Finance Corporation Limited v. Union of India (2021), and Rajiv Chakraborty, Resolution Professional of EIEL v. Directorate of Enforcement (2022). These authorities support the submission that, since the assets of the company are under liquidation under Chapter III of Part II of the Insolvency and Bankruptcy Code, no action can be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process., On the query of the Court, a note is filed on the update of the liquidation process of M/s Sunil Hi-Tech Engineers Ltd. As of 11 May 2023, claims worth Rs. 2,284.67 crores have been admitted and a sum of Rs. 80,13,64,353 has been received through 30 e‑auctions in accordance with the provisions of the Insolvency and Bankruptcy Code and its regulations. Bank guarantees amounting to INR 94,43,60,003 issued by financial creditors on behalf of SHEL were returned during the liquidation process, representing recovery to the financial creditors against the claims filed by them. Outstanding bank guarantees amounting to INR 117,67,97,629 remain as of the date of the note., With regard to the unsold assets of SHEL, the note mentions that SHEL has certain immovable and movable assets, contract receivables, GST input credit, fixed deposits marked as lien against outstanding bank guarantees, arbitration and litigation claims, etc. The last e‑auction scheduled on 6 March 2023 for the sale of SHEL as a going concern at a reserve price of INR 24,60,00,000 failed as no bids were received. The Asset Sale Committee of SHEL, comprising the top six secured creditors, met on 8 May 2023 and discussed reducing the reserve price to INR 23,00,00,000 for the sale of SHEL as a going concern, subject to confirmation in the next Asset Sale Committee meeting. The Committee also decided to assign arbitration matters and ongoing litigations on a recovery‑sharing ratio between the secured creditors and successful bidders (net of costs) upon receipt of proceeds. In the previous e‑auction on 6 March 2023, over and above the reserve price, a recovery‑sharing ratio of 60:40 was offered for arbitration matters, 50:50 for litigation involving preferential and fraudulent transactions, and 70:30 for other litigations. The recovery ratio for the forthcoming e‑auction shall be discussed and finalized in the next Asset Sale Committee meeting., Therefore, it is the submission of the Official Liquidator that the corporate debtor be discharged as no action can be taken against its property in relation to an offence committed prior to the commencement of the corporate insolvency resolution process, where such property is covered by the sale of liquidation assets under Chapter III of Part II of the Code to a person. The explanation to Section 32A clarifies that action against the property of the corporate debtor includes attachment, seizure, retention or confiscation of such property under any applicable law., On the other hand, Sh. Sanjay Kumar, learned DLA for the Central Bureau of Investigation, has relied upon the Supreme Court judgment in Ajay Kumar Radhey Shyam Goenka v. Tourism Finance Corporation of India Limited (2023), where it was held that the nature of proceedings which have to be kept in abeyance under section 14 of the Insolvency and Bankruptcy Code does not include criminal proceedings. Referring to Section 178, priority of payment of debts, he submitted that in the event of conviction of M/s Sunil Hi-Tech Engineers Ltd, the fine imposed upon it will be a government due and hence recoverable from the assets of the said company., In the opinion of this Court, Section 32A was introduced by the Legislature with the clear intention to make the corporate insolvency resolution process favourable to creditors and to ensure optimum recovery once the resolution plan results in a change in management or control to a person who was not a promoter, manager, controller or related party of the corporate debtor. The amendment makes it clear that no action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process, where such property is covered under a resolution plan approved by the adjudicating authority under section 31, resulting in a change in control of the corporate debtor or sale of liquidation assets under Chapter III of Part II of the Code. An action against the property of the corporate debtor includes attachment, seizure, retention or confiscation under any applicable law, but does not bar action against the property of any other person. It is not in dispute that the National Company Law Tribunal, Mumbai, on 25 June 2019 ordered the liquidation of the corporate debtor and appointed a liquidator. Framing of a charge will serve no purpose as action against the property of the corporate debtor, such as attachment, seizure, retention or confiscation, cannot be taken even if it is convicted. Moreover, keeping the proceedings pending by framing a charge against the corporate debtor may adversely affect the value of its assets under liquidation.
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Therefore, considering the letter and spirit behind introduction of Section 32-A in the Code and considering that the liquidator is liquidating the assets of A-1 M/s Sunil Hi-Tech Engineers Limited, it is directed that no charge is to be framed against the said company. At this stage, the Hon'ble Special Judge (Prevention of Corruption Act), Central Bureau of Investigation, Coal Block Cases-01, RADC, Delhi is adding the caution that in case incriminating evidence surfaces against any person other than this company, who being director or principal officer of the company by his specific omission or commission has committed any offence, the Hon'ble Special Judge may summon him for trial as per the provision of Section 319 of the Criminal Procedure Code. Therefore, while on merit it is held that M/s Sunil Hi-Tech Engineers Ltd. is liable to be charged for the offence of cheating under Section 420 of the Indian Penal Code as well as for criminal conspiracy with the two public servants but considering that its management is now under control of the official liquidator and its assets are being liquidated for the benefit of the creditors, the said company is discharged in the case., According to the charge sheet, M/s SHEL even prior to execution of the Joint Venture Agreement was not only in contact with M/s Jaypee group to offload its 49% equity (for Rs. 15 crores) in the SPV but also executed a Term Sheet and taken advance of Rs. 5 crores, D-275, Page 1-5. Further, pledge of 71,04,240 shares (for Rs. 12 crores) of M/s SHEL Investment Consultancy Private Limited in favour of M/s JDCL with all rights including voting rights is contrary to the terms and conditions of the bid document (clause XVI, sub‑clause 2) as well as the Joint Venture Agreement (clause 12.2). Therefore, majority control of the SPV company i.e., M/s Sunil Hi-Tech Energy Private Ltd was transferred to M/s JDCL/Jaypee group by M/s SHEL or its associates with all rights including voting rights by virtue of sale and pledging of shares., Since 2005 M/s SHEL and its subsidiary/associates (i.e., prior to the start of the tender process by M/s MSMCL in respect of the Adkoli coal block) till 2011‑12 had engaged M/s aXYKno for debt and equity syndication, auditing, project advisory and due diligence for acquisition of projects in the sugar, engineering and energy sectors. During the period 2005‑2012, M/s SHEL paid a substantial amount to M/s aXYKno on account of services provided. Thus, it is evident that M/s SHEL had substantial business dealings with M/s aXYKno even prior to and also after the start of the tender process for the Adkoli Coal Block., M/s aXYKno also had business dealings with Jaiprakash Associates and M/s JDCL during the period 2008‑2014 and provided services relating to strategic advisory for scaling up in the natural resource and energy sector and received substantial payments from them., The charge sheet further mentions that Martin Philip, son of D.G. Philip, the then Managing Director of M/s MSMCL on recommendation of R. Ramakrishnan was in M/s aXYKno as Analyst with effect from 01.01.09 to 31.07.10. It is alleged that during the period he was on leave for about nine months. During that period amount was paid towards monthly salary to Shri Martin Philip by M/s aXYKno., M/s SHEL and its subsidiary during the period 2009‑2015 executed several contract works relating to fabrication and supply of boilers, columns etc. in various power and cement plants of Jaypee and received substantial payments from the Jaypee group., It is also alleged that travel expenses of Avinash Warjukar, the then Chairman of M/s MSMCL during the period were paid by M/s SHEL. The charge sheet mentions that M/s SHEL did not offer any work to SBEA for developing the coal block, despite the fact that they qualified in the bidding process only on the basis of the experience of SBEA. This contention was further corroborated as, according to officials of M/s MSMCL, M/s SHEL and M/s SBEA did not have any expertise in survey, exploration and other development activities., The accused no. 3 and 4 submitted that they had booked a ticket for A-6 Avinash Warjukar for convenience only and not as a kick back to the Chairman. They stated that they raised debit note D-346 on M/s MSMCL and got the expenses incurred for booking of the ticket reimbursed from M/s MSMCL on 19 June 2008. The debit note clearly mentions that it is for travelling expenses in reference to official work., Regarding the appointment of Martin Philip, son of D.G. Philip by M/s aXYKno, it is submitted that during 2008‑2013 M/s aXYKno was growing and continuously recruiting professionals based on experience, CVs and interviews. During that time the company engaged more than 30 professionals and one of them was Mr. Martin. He was given no special treatment; during probation he received no incentives, Diwali bonus, commitment bonus, leave encashment and any leave taken was treated as unpaid leave. As per the CV, Mr. Martin was expecting a salary of Rs.12,000‑Rs.15,000 per month but was engaged for a salary of Rs.10,000 per month. During the leave period he was given no salary as per company policy. Mr. Martin Philip tendered his resignation in July 2010 as he got a better job with higher salary. The accused submit that no special favour was shown to Mr. Martin Philip, who was treated like an ordinary employee., The accused have submitted that their business dealings with Jay Prakash Associates and M/s JDCL during 2008‑2014 have no bearing on the case as M/s Jaypee has not been arrayed as an accused by the Central Bureau of Investigation in this case. Moreover, M/s Jaypee was not a participant or bidder in the bidding process adopted by M/s MSMCL. Neither A-3 nor A-4 were signatories to the term sheet dated 31.10.2009 executed between SHEL and the Jaypee group. They have submitted that their assignment had come to an end in JPCL in January 2009 and there was no extension or defect liability period mentioned in their appointment letter dated 18.01.2008; therefore, there is no question of any impropriety., These accused have submitted that the allegation against them is that they attended High Powered Committee meetings but concealed from the HPC that M/s SHEL was ineligible and therefore conspired in cheating and dishonestly inducing the Government of Maharashtra to give its approval for selection of SHEL as Joint Venture Partner., The accused have referred to the circular dated 25.11.2002 issued by the Government of India, Central Vigilance Commission where paragraph 4 provides: The role of the consultants should be advisory and recommendatory and final authority and responsibility should be with the departmental officers only., They have submitted that not even a single agenda of the High Powered Committee is on record. There is nothing on record to show that the agenda of the HPC was circulated or known to A-3 and A-4. It is their submission that A-3 was neither appointed by the Government of Maharashtra nor by the High Powered Committee for advising them for coal blocks. Their role before the HPC can be best understood from the minutes of the HPC dated 01.08.2008, D-127, Page 14, PDF 6707‑6709 (Marathi) whose English translation is: During the detailed discussions on the terms and conditions, R. Ramakrishnan was called before the Committee., It is their submission that only when certain clarifications were to be sought, the members of the HPC used to call A-3 consultant inside the meeting room/chamber of the HPC., They have referred to the presentations made before the HPC by MSMCL, D-153, Page 41, PDF 8200 to show that the question of ineligibility/eligibility of M/s SHEL was never under consideration of the HPC. They have submitted that they had no knowledge about ineligibility/eligibility of M/s SHEL or any other bidder and they were not capable of or having authority or power to comment upon ineligibility or eligibility of M/s SHEL or any other bidder., These accused have specifically referred to allegations made against them in paragraph 16.4.35 and 16.4.56 of the charge‑sheet which are as follows: That R. Ramakrishnan, Financial Consultant, M/s aXYKno who prepared the bid documents as well as the Joint Venture Agreement in consultation with M/s MSMCL officials during the period when Shri D.G. Philip and Shri Avinash Warjukar were MD & Chairman of M/s SHEL, with whom M/s aXYKno had substantial business and financial dealings even prior to the bidding stage of the Adkoli coal block, had inserted clauses in the JV Agreement to suit M/s SHEL of which Shri Sunil Ratnakar Gutte was Director. In the process, the JV Agreement was prepared in such a way that it caused undue pecuniary advantage to M/s SHEL. That since 2005 M/s SHEL and its subsidiary/associates (i.e., prior to the start of the tender process by M/s MSMCL in respect of the Adkoli Coal Block) till 2011‑12 had engaged M/s aXYKno for debt & equity syndication, auditing, project advisory and due diligence for acquisition of projects in sugar, engineering and energy sectors. During the period 2005‑2012, M/s SHEL paid a substantial amount to M/s aXYKno on account of services provided. Thus, it is evident that M/s SHEL had substantial business dealings with M/s aXYKno even prior to and also after the start of the tender process for the Adkoli Coal Block., The accused have submitted that as many as 164 bidders had purchased bid documents, D-155, Page 46, PDF 8210. According to them, the charge‑sheet alleges that M/s Sunil Hi-Tech Limited was not fulfilling the technical evaluation criteria as per bid documents insofar as it did not have actual mining experience in open cast or underground mining operations either on a standalone basis (Paragraph 16.3.5, Page 10 of the charge‑sheet). It is their submission that the scope of work of A-3 was to aid in preparation of the bid document and according to the charge‑sheet M/s SHEL does not qualify on a standalone basis as per the bid conditions. This shows that A-3 has not favoured or given any undue advantage to A-1 in qualifying as a Joint Venture Partner and hence no mens rea or actus reus is attributable to A-3/A-4. They have referred to PDF 5482 @ 5312, bid document dated 14.02.2008, Clause XVI, dealing with Responsibility of the JV partner which are as follows: (1) JV Partner shall not sell his shareholding or create any third‑party rights in the SPV for the term of the JV agreement. (2) JV Partner shall not pledge, mortgage or lien mark the shareholding or any rights in the SPV to any third party, lender or any entity whatsoever., It is the submission of A-3 and A-4 that these clauses show their bonafide conduct and intent as they did not allow any bidder, including M/s SHEL, to transfer, sell or pledge the shares to third parties., They have submitted that they prepared the draft bid document as well as the draft Joint Venture Agreement which prohibited sale/transfer/pledge of shares to a third party, showing bonafide intent of A-3 and A-4. They have submitted that there is no allegation against them that they received financial consideration for advising A-1 in the tender of MSMCL for the Adkoli Coal Block. They have referred to the statements of PW‑64 Sh. Yash Verma, CA and PW‑72 Sh. Abhay Upadhaye, CA to show that no witness has indicated that A-3 and A-4 received any consideration from A-1 with regard to the Adkoli Coal Block. They have relied on the observations of the Hon'ble Supreme Court in the case of Parveen Sonu vs. State of Haryana, judgment dated 07.12.2021, in Criminal Appeal No. 1571/2021. A few bits here and a few bits there on which prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy., Decision of the Hon'ble Special Judge (Prevention of Corruption Act), Central Bureau of Investigation, Coal Block Cases‑01, RADC, Delhi : The most favourable aspect for ruling out any possibility of framing a charge for criminal conspiracy against A-3 and A-4 is that they have not helped A-1 M/s SHEL either by any omission or commission. They aided MSMCL in framing the bid documents as per which A-1 M/s SHEL was ineligible to bid. They did not try to frame terms and conditions of the bid document which would have made M/s SHEL technically eligible. The bid documents strictly prohibited sale/transfer/pledge of shares in favour of a third party by the JV Partner. They never deviated from their stand in the proposed JV Agreements prohibiting sale/transfer/pledge of shares in favour of a third party by the JV Partner. These were the two spheres where M/s SHEL needed their help the most but, rather than proposing favourable clauses, the terms and conditions proposed in the bid document were detrimental to the interest of M/s SHEL. In the three draft JV Agreements proposed by the Financial Consultant, they never budged from forcefully prohibiting sale or pledge of shares by the JV Partner., So far as giving employment to the son of D.G. Philip is concerned, the language of the charge‑sheet tends to give an impression that Mr. Martin Philip was on leave for nine months but he was given salary during that time. Paragraph 16.4.58 of the charge‑sheet states that: That Shri Martin Philip, son of Shri D.G. Philip, the then MD, M/s MSMCL on recommendation of Shri R. Ramakrishnan worked in M/s aXYKno as Analyst with effect from 01.01.09 to 31.07.10. During the period he was on leave for about nine months. During that period amount was paid towards monthly salary to Shri Martin Philip by M/s aXYKno., However, the statement of account of Mr. Martin Philip, D-237, PDF 8851‑8864 with Bank of India, Nagpur Branch shows that A-3 M/s aXYKno had not paid the salary to Mr. Martin Philip during his leave of nine months. Moreover, the employment was given in January 2009 when the tenure of M/s aXYKno with MSMCL had come to an end and in February 2009, D.G. Philip had also demitted his office in MSMCL., Some quid pro quo is sought to be shown by purchase of air tickets for A-6 Avinash Warjukar by the Financial Consultant A‑3 M/s aXYKno. However, a debit note was raised with regard to the ticket, D-346, Page 10, PDF 11502 and the said amount was received by M/s aXYKno which is evident from the bank statement, PDF 11495, which rules out any conspiracy., Conclusion: (i) A-1 SHEL – There is sufficient material to frame a charge against A-1 SHEL under Section 120‑B of the Indian Penal Code read with Section 420 of the Indian Penal Code read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 for entering into criminal conspiracy with the public servants A-5 D.G. Philip and A-6 Avinash Warjukar for proposing the JV Agreement in such a manner which enabled A-1 SHEL to sell its shares in SPV M/s Sunil Hi-Tech Energy Pvt. Limited and pledge shares of its affiliate M/s SHEL Investment Consultancy Pvt. Ltd. in M/s Sunil Hi-Tech Energy Pvt. Limited. There is sufficient material to frame a charge against A-1 SHEL under Section 420 of the Indian Penal Code for cheating MSMCL by pledging its shares without following the procedure provided in paragraph 6.4.1(e) of the JV Agreement. However, as A-1 SHEL is under liquidation, the said company is discharged under Section 32‑A of the Insolvency and Bankruptcy Code, 2016. (ii) A-2 Sunil Ratnakar Gutte – Admittedly, he is one of the directors of M/s Sunil Hi-Tech Engineers Ltd., M/s Sunil Hi-Tech Energy Pvt. Ltd. and M/s SHEL Investment Consultancy Pvt. Ltd. but no specific commission or omission is attributable to him in the pledging of shares of M/s SHEL Investment Consultancy Pvt. Ltd. in favour of M/s JDCL and, in the absence of vicarious liability, this accused is also discharged. However, during trial when evidence comes on record against other director(s) inculpating them for the pledging of shares of M/s SHEL Investment Consultancy Pvt. Ltd. in favour of M/s JDCL, he/they may be summoned under Section 319 of the Criminal Procedure Code to face trial for criminal conspiracy as well as cheating. (iii & iv) A-3 M/s aXYKno and A-4 R. Ramakrishnan – Both are discharged. (v) A-5 D.G. Philip – A-5 D.G. Philip shall be charged under Section 13(1)(d) of the Prevention of Corruption Act on two counts, first, declaring technically ineligible bidders including M/s SHEL as eligible, second, for proposing clauses in the JV Agreement permitting sale/transfer/pledge of shares by the JV Partner contrary to the terms and conditions of the bid documents. However, during trial if incriminatory evidence comes on record inculpating other directors of MSMCL/Members of the HPC/infrastructure committee or any other officer of the Government of Maharashtra for incorporating clauses in the JV Agreement permitting sale/transfer/pledge of shares by the JV Partner knowing the terms and conditions of the bid documents, he/they may also be summoned under Section 319 of the Criminal Procedure Code. A charge is also directed to be framed against A-5 D.G. Philip for the offence of criminal conspiracy along with A-6 Avinash Warjukar for incorporating clauses in the JV Agreement permitting sale/transfer/pledge of shares by the JV Partner contrary to the bid documents. (vi) A-6 Avinash Warjukar – A charge under Section 13(1)(d) of the Prevention of Corruption Act shall be framed against A-6 Avinash Warjukar for proposing clauses in the JV Agreement permitting sale/transfer/pledge of shares by the JV Partner and for the offence of criminal conspiracy along with A-5 D.G. Philip for proposing such clauses., Observations qua H‑1 bidder for Agarzari Coal Block and H‑1 bidder Warora Coal Block : So far as deviation from the terms and conditions of the bid documents restraining sale/transfer/pledge of shares in the JV Agreements are concerned, the actions of A-5 D.G. Philip and A-6 Avinash Warjukar helped H‑1 bidders of Agarzari and Warora Coal Blocks as much as they helped the H‑1 bidder of Adkoli. Rather, the benefit to H‑1 bidders of Agarzari and Warora Coal Blocks would have been greater as the estimated reserves of Agarzari Coal Block were 137 million metric tonnes, Warora Coal Block 73 million metric tonnes and Adkoli Coal Block just 20 million metric tonnes. It is not known whether these two companies had also sold, transferred or pledged their shares contrary to the bid documents. Investigation would be required to find out whether they also benefited by dilution of the terms and conditions of the bid documents by providing sale/transfer/pledge of shares by the JV Partner in their JV Agreements. The accused in this case have pressed hard for orders of the Hon'ble Special Judge (Prevention of Corruption Act), Central Bureau of Investigation, Coal Block Cases‑01, RADC, Delhi for further investigation in that regard. However, this Hon'ble Special Judge is of the view that giving benefit, if any, to H‑1 bidders of Agarzari Coal Block and Warora Coal Block, contrary to the terms and conditions of the bid documents would be a separate and independent offence for which further investigation cannot be directed in this case which is restricted to offences pertaining to the Adkoli Coal Block only. It is for the Investigating Agency to decide regarding investigations into JV Agreements of H‑1 bidders of Agarzari and Warora Coal Blocks., List on 07.07.2023 for framing the formal charges against D.G. Philip (now A-1) and Avinash Warjukar (now A-2). Announced in open court today by Arun Bhardwaj, Special Judge (Prevention of Corruption Act), Central Bureau of Investigation, Coal Block Cases‑01, RADC, Delhi on 25.05.2023.
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Reserved on: 02.11.2023 Pronounced on: 08.11.2023 CRAA No.09/20 18 Through: Mr. Sajad Ashraf, Government Advocate. Through: Mr. Abu Owais Pandit, Advocate. The appellant State has challenged the judgment of acquittal dated 28.01.2017 passed by learned 2nd Additional Sessions Judge, Srinagar, whereby the respondents have been acquitted of the charges for offences under Sections 363, 376, 343, 506 and 109 of the Ranbir Penal Code arising out of FIR No.2 of 2006 registered with Police Station, Rainawari, Srinagar., Briefly stated, the case of the prosecution is that on 23.12.2005, PW1 Mukhtar Ahmad Hagroo, who happens to be the father of the prosecutrix, lodged a missing report with Police Station, Rainawari, alleging therein that his daughter, the prosecutrix, had gone to her school on 06.12.2005 but she did not return. In the report, the age of the prosecutrix was mentioned as 14 years. The police launched a search of the prosecutrix and ultimately succeeded in finding her in Central Jail, Jammu, from where she was recovered after getting her released on bail., Upon recovery of the prosecutrix, her statement was recorded by the police. In her statement, the prosecutrix narrated that the respondents along with one girl, namely Shazia, enticed her to go with them and she was taken in a white coloured Maruti car outside the State to Jaipur. On the basis of the statement of the prosecutrix, FIR No.2/2006 for offences under Sections 363, 376, 343, 506 and 109 of the Ranbir Penal Code was registered and investigation was set into motion., During the course of investigation, statements of the witnesses under Section 161 of the Criminal Procedure Code were recorded and the prosecutrix was subjected to medical examination. The certificate relating to date of birth of the prosecutrix was obtained and she was found to be 17 years of age. The respondents/accused were arrested and, in respect of girl Shazia, an identification parade was conducted by the Executive Magistrate, Srinagar, but no clue about the said girl could be obtained. Accordingly, after finding that the offences under Sections 363, 343 and 506 Ranbir Penal Code are made out against respondent No.1 and offences under Sections 363, 376, 343, 506 and 109 Ranbir Penal Code are established against respondent No.2, the challan was lodged before the trial court., The learned Sessions Court vide its order dated 20.07.2007 framed charges for offences under Sections 363, 376, 343, 506 and 109 Ranbir Penal Code against both the respondents and their plea was recorded. The respondents denied the charges and claimed to be tried. Accordingly, the prosecution was directed to lead evidence in support of its case., Out of 15 witnesses cited in the challan, the prosecution examined 12 witnesses which include PW Mukhtar Ahmad Hagroo, Mst. Saleema, Gowhat Ahmad Bhat, the prosecutrix, Abdul Ahad Head Constable, Dr. Shagufta Parveen, Dr. Narinder Singh, Dr. Latif Ahmad, Smt. Mubeena Jan, Mohammad Amin Bhat, Ghulam Mohi‑ud‑din Bhat and Ali Mohammad Dar. After completion of prosecution evidence, the statements of respondents/accused under Section 342 of the Jammu and Kashmir Criminal Procedure Code were recorded. The respondents/accused claimed that the father of the prosecutrix had purchased a scooter from them but he had not paid the whole of the sale consideration despite repeated demands. They further stated that when they went to the house of the father of the prosecutrix to demand money, they learned that the prosecutrix was having an affair with a Sikh CRPF personnel with whom she had eloped. The accused further stated that when they demanded money from the father, he raised a hue and cry and the accused threatened him that in case he did not pay their money, they would defame him. Because of this, the father implicated them in a false case. The respondents/accused, however, did not lead any evidence in defence., The learned Sessions Court after hearing the parties and after appreciating the evidence on record, concluded that the statement of the prosecutrix is not trustworthy nor is her conduct unblemished. The court also observed that the version of the occurrence given by the prosecutrix during trial is entirely different from the version given in the challan; therefore, the prosecution case cannot be believed. On this ground the learned Sessions Court acquitted the respondents by passing the impugned judgment., The appellant State has challenged the impugned judgment on the ground that the learned Sessions Court has not appreciated the evidence in its right perspective. It has been contended that the allegations made in the charge sheet against the respondents/accused were clearly established from the statement of the prosecutrix and other prosecution witnesses and, as such, the acquittal of the respondents/accused has resulted in miscarriage of justice. According to the appellant, conviction can be recorded on the basis of a solitary statement of a victim of rape without any corroboration but in the instant case, in spite of there being a credible statement of the prosecutrix, the learned Sessions Court has discarded her statement on flimsy grounds., I have heard learned counsel for the parties, perused the grounds of appeal, the impugned judgment of acquittal and the record of the trial court., Before coming to the merits of the appeal, it would be appropriate to consider the scope of interference in an appeal against acquittal. The law on this aspect is no longer res integra. The Supreme Court and this High Court in a series of judgments have settled that the scope of interference in an appeal against acquittal is limited and unless the High Court finds that the appreciation of the evidence made by the trial court is perverse, it cannot interfere with the finding of acquittal recorded by the trial court. In Nikhil Chandra Mondal v. State of West Bengal (Criminal Appeal No.2269 of 2010 decided on 3rd March 2023), the Supreme Court held that unless findings of the trial court are perverse or illegal, it is not permissible for the appellate court to interfere with the same., In Rajesh Prasad v. State of Bihar and another (2022) 3 SCC 471, the Supreme Court, after considering its earlier judgments on the scope of interference in a case of acquittal, held that there is a double presumption in favour of the accused. Firstly, the presumption of innocence that is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the court. It has been further held that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial court., With the aforesaid legal position in mind, let us now turn to the facts of the instant case. The prosecutrix, as per the evidence on record, was 17 years old at the time of the alleged occurrence. The occurrence is stated to have taken place in the year 2005. At the relevant time, the age of consent, as per the provisions contained in Section 375 of the Indian Penal Code as it existed then, was 16 years and not 18 years. This is an important aspect of the matter which is to be borne in mind while appreciating the evidence on record in the instant case., If we look at the version of occurrence given by the prosecutrix in her statement recorded under Section 161 of the Criminal Procedure Code, she has stated that on 06.12.2005, when she had gone to her school along with her mother to get admission, the respondents along with Shazia came in a vehicle, stopped the vehicle near her and asked her to accompany them. She was assured that she would be left back at her home. According to the prosecutrix, she was influenced by the assurance of the inmates of the vehicle and she boarded the said vehicle but she was taken towards Jammu and on the way she remained busy talking to the accused who assured her that she would be brought back from Jammu. On the next day after taking meals, she was taken to Jaipur where the accused hired two rooms on rent. In the evening, the prosecutrix slept in a room with Shazia whereas the accused slept in another room. According to the prosecutrix, during the night she was raped by accused Aijaz. After six days, she was brought back to Jammu by the accused where she was threatened by them. On 04.12.2005, she reached Jammu Railway Station and when police came over the rear, she started running away but was caught by the police. The prosecutrix has gone on to state that she gave a wrong identity to the police concealing her real name, as a result of which she was taken into custody and sent to Central Jail, Jammu, from where on 02.01.2006 she was released on bail by her father., In her statement recorded during trial of the case, the prosecutrix gave an entirely different version of the occurrence. According to her, she boarded the vehicle of the accused from her school who assured her that she would be taken to her home but she was taken to Jammu and was kept for three days in Hotel Jewel at Jammu where accused Aijaz committed rape upon her on two to three occasions in the presence of accused Feroz Ahmad Najar. She went on to state that after three days, she was sold to a Sikh person by the accused for an amount of Rs.10,000. She further stated that the Sikh person tried to keep her in a hotel but she escaped from his clutches and went to the railway station at Jammu where she started crying. An Army Jawan met her and she narrated the whole story to him. According to the prosecutrix, she was handed over to police by the said Army Jawan. She was taken to the police station where the accused came a number of times to take her but the police did not hand over her custody to them. In the meantime, the police came from Srinagar and she was brought to Srinagar by them where she was handed over to her parents. In her cross‑examination, she stated that the girl who was travelling with them in the vehicle on the way to Jammu administered injections to her which made her unconscious. She further stated that besides her, there were three boys and one girl in the vehicle. When her attention was brought to the contrary version given by her in her statement under Section 161 of the Criminal Procedure Code, she stated that the statement is incorrect. She specifically stated that she did not go to Jaipur and that she resided at Jammu for three days in Jewel hotel., The Investigating Officer, Ali Mohammad Dar, has stated that the prosecutrix did not narrate to him that she met any Army personnel at Jammu. He has also stated that the prosecutrix did not narrate to him that the girl had administered injections to her and made her unconscious and there is no such mention in the statement of the prosecutrix recorded by him under Section 161 of the Criminal Procedure Code. The Investigating Officer also stated that the prosecutrix never told him that she was sold by the accused to a Sikh person and that she escaped from the clutches of the said Sikh person., From the analysis of the statement of the prosecutrix recorded during trial of the case and the statement of the Investigating Officer recorded during trial of the case, it is clear that there are major contradictions in her statements on the essential aspects of the case. These contradictions between the version of occurrence given in the statement of the prosecutrix under Section 161 of the Criminal Procedure Code and her statement recorded during trial have been proved during trial. It is true that even if defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness, but when the contradiction relates to vital aspects of the case and the version of occurrence given in the previous statement by a witness is entirely different from the version given by such witness during the trial, it definitely makes the statement of such witness unreliable and untrustworthy., The prosecutrix has invented the story of getting injected by the girl who was accompanying her in the vehicle on the way to Jammu. While making her statement before the trial court, she also invented a new story that she stayed in Jewel hotel at Jammu for three days and that she was sold to a Sikh person by the accused for Rs.10,000. Again, she states that she met an Army personnel at Jammu Railway Station to whom she narrated the story. All these facts were never narrated by the prosecutrix while making her statement under Section 161 of the Criminal Procedure Code, which has been clearly stated by the Investigating Officer who recorded her statement under that section. Therefore, the statement of the prosecutrix is absolutely unworthy of credit., It is true that on the solitary statement of a victim of rape, conviction of an accused can be based but it is equally true that such statement should be unblemished and of sterling quality. In the instant case, as already discussed, the statement of the prosecutrix is unworthy of credit. Therefore, the accused cannot be held guilty on the basis of the said statement. There is no corroboration to her statement. The medical evidence is negative, obviously because the prosecutrix was subjected to medical examination after a fairly long time of the alleged incident. The missing report relating to the prosecutrix was lodged by her father after a lapse of about twenty days and there is no explanation as to why he did not lodge the missing report immediately. There is also evidence on record to show that there was a dispute between the father of the prosecutrix and the accused relating to some monetary transaction. This circumstance makes the delay in lodging the report a factor adverse to the case of prosecution and, therefore, the false implication of the respondent/accused cannot be ruled out., For the foregoing reasons, the view taken by the learned Sessions Court in acquitting the respondents/accused and in holding that the statement of the prosecutrix is unworthy of credit does not deserve to be interfered with by this High Court while exercising appellate jurisdiction. Therefore, the impugned judgment of acquittal passed by the learned Sessions Court warrants no interference from this High Court. The appeal is, accordingly, dismissed. The bail and surety bonds of the respondents/accused are discharged., Record of the trial court along with a copy of this judgment be sent down.
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Applicant: Atul Kumar Singh alias Atul Rai, son of Shri Bharat Singh. Opposite Party: State of Uttar Pradesh through Principal Secretary, Home. Counsel for Applicant: Kaustubh Singh. Counsel for Opposite Party: G. A. Honourable Dinesh Kumar Singh, J., The present application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the accused-applicant seeking bail in FIR No. 0309 of 2021 registered against the accused-applicant and another co-accused under Sections 120B, 167, 195A, 218, 306, 504 and 506 of the Indian Penal Code, Police Station Hazratganj, District Lucknow., The accused-applicant is a Member of Parliament, elected on the symbol of the Bahujan Samajwadi Party from Ghosi Lok Sabha Constituency of Uttar Pradesh in the 2019 General Elections to the Lok Sabha., The accused-applicant has twenty-three criminal cases, including kidnapping, murder, rape and other heinous offences. The cases are: Case Crime No. Nil under the Uttar Pradesh Gangsters Act, Police Station Lanka, District Varanasi; Case Crime No. Nil under Sections 66E of the Information Technology Act and Section 120B of the Indian Penal Code; Case Crime No. 209 of 2011 under Sections 307, 333 and 120 of the Indian Penal Code; Case Crime No. 396 of 2011 under Sections 364, 302 and 120B of the Indian Penal Code, Police Station Cantt, Varanasi; Case Crime No. 211 of 2011 under Sections 386 and 504 of the Indian Penal Code; Case Crime No. 397 of 2011 under Sections 307, 353, 333, 338, 224, 225, 419, 120B of the Indian Penal Code and the Criminal Law Act, Police Station Cantt, Varanasi; Case Crime No. 401 of 2011 under Sections 147, 148, 149, 307 and 120B of the Indian Penal Code, Police Station Cantt, Varanasi; Case Crime No. 356 of 2011 under Section 3(1) of the Uttar Pradesh Gangsters Act, Police Station Cantt, Varanasi; Case Crime No. 511 of 2011 under Section 3(1) of the Uttar Pradesh Gangsters Act, Police Station Cantt, Varanasi; FIR No. 185 of 2018 under Sections 364, 504 and 506 of the Indian Penal Code, Police Station Cantt, Varanasi; Case Crime No. 881 of 2006 under Sections 376, 420, 504 and 506 of the Indian Penal Code, Police Station Phulpur, Varanasi; FIR No. 548 of 2019 under Sections 376, 540, 506 and 504 of the Indian Penal Code, Police Station Lanka, Varanasi; Case Crime No. 834 of 2017 under Sections 147, 148 and 307; Case Crime No. 09 of 2009 under Sections 342, 386, 504, 506 and 427 of the Indian Penal Code, Police Station Manduadeeh, Varanasi; Case Crime No. 11 of 2009 under Section 3/25 of the Arms Act, Police Station Manduadeeh, Varanasi; Case Crime No. 76 of 2009 under Section 3(1) of the Uttar Pradesh Gangsters Act, Police Station Manduadeeh, Varanasi; Case Crime No. 261 of 2010 under Section 110G of the Act, Police Station Manduadeeh, Varanasi; Case Crime No. 211 of 2011 under Sections 3/25 of the Arms Act, Police Station Rohaniya, Varanasi; Case Crime No. 17 of 2011 under Sections 147, 148, 149, 302 and 120B of the Indian Penal Code, Police Station Rohaniya, Varanasi; Case Crime No. 545 of 2009 under Section 3(1) of the Uttar Pradesh Gangsters Act, Police Station Rohaniya, Varanasi; Case Crime No. 485 of 2009 under Sections 147, 148, 323, 504, 427 and 452 of the Indian Penal Code, Police Station Rohaniya, District Varanasi; Case Crime No. 203 of 2009 under Sections 504 and 506 of the Indian Penal Code, Police Station Rohaniya, Varanasi; and Case Crime No. 225A of 2003 under Sections 147, 323, 504 and 506 of the Indian Penal Code, Police Station Rohaniya, Varanasi., It is stated in paragraph 38 of the affidavit that out of the twenty-three cases, only twelve are still pending against the accused-applicant. Although the accused-applicant has secured acquittal in some cases, several heinous cases including murder and rape remain pending before the courts., The background of the present case is that FIR No. 548 of 2019 was registered against the accused-applicant under Sections 376, 420, 406 and 506 of the Indian Penal Code at Police Station Lanka, District Varanasi, on a complaint by the victim. The victim later attempted suicide along with her friend within the precincts of the Supreme Court of India on 16 August 2021. They were admitted in serious and critical condition to Ram Manohar Lohia Hospital, New Delhi, and later died on 21 August 2021 and 24 August 2021 respectively., The present accused-applicant is a Bahubali, a criminal-turned-politician, as evident from his long criminal history of heinous offences. After investigating the offence, the police filed a charge-sheet against the accused-applicant in FIR No. 548 of 2019. To terrorize and put undue pressure on the victim/prosecutrix, the accused-applicant had several cases registered against her and her friend/witness so that they would not support the prosecution., On 10 November 2020, the victim submitted an application to the Senior Superintendent of Police, Varanasi, alleging that co-accused Amitabh Thakur, an ex-Indian Police Service officer, was manufacturing false documents and evidence against the victim and her friend in favour of the present accused-applicant for monetary consideration. The victim claimed that her dignity, honour and image were being besmirched, that she was being continuously harassed physically and mentally, and that the accused-applicant and his henchmen were employing undue pressure to make her turn hostile before the Supreme Court of India., The victim and her friend Satyam Prakash Rai, on 16 August 2021, attempted suicide outside Gate No. 6 of the Supreme Court of India and went live on Facebook making serious allegations against the accused-applicant and co-accused Amitabh Thakur. The statements made by the two victims on Facebook have been treated as dying declarations., The Director General of Police constituted a two-member committee consisting of the Director General, Uttar Pradesh Police Recruitment and Promotional Board, and the Additional Director General, Women and Child Security Organization, Lucknow. The committee submitted its report on 27 August 2021. On the basis of that report, Sub-Inspector Daya Shankar Dwivedi at Police Station Hazratganj lodged the FIR in question against the accused-applicant and co-accused., The two-member team’s report indicates that Bharat Singh, the father of the accused-applicant, submitted an application on 3 March 2020 to the Senior Superintendent of Police, Varanasi, requesting further investigation under Section 173(8) of the Criminal Procedure Code in FIR No. 548 of 2019., The Senior Superintendent of Police, Varanasi, forwarded the application to the then Circle Officer, Bhelupur, Mr. Amresh Kumar Singh. Mr. Amresh Kumar Singh prepared a report in which he stated that FIR No. 548 of 2019 was falsely lodged in conspiracy of the prosecutrix, her friend Satyam Prakash Rai, Angad Rai and Vijay Shankar Tiwari, and recommended fresh investigation under Section 173(8) of the Criminal Procedure Code. Although the case was pending in the Supreme Court of India, the Circle Officer made the report available to co-accused Amitabh Thakur and other persons under the Right to Information Act, thereby attempting to defame the victim and weaken the case against the accused-applicant., It is alleged that when the accused-applicant and his goons were not successful in breaking the victim and the witness, they subjected them to physical and mental torture. The Circle Officer, Bhelupur, also assisted the accused-applicant. The victim and her friend were harassed and tortured to the point of desperation, fearing for their lives and seeing their dignity and character tarnished. Under these circumstances they went to the Supreme Court of India, attempted suicide outside its gate, and later died during treatment., Co-accused Amitabh Thakur, ex-IPS officer, has been granted bail by this Honorable Supreme Court of India by order dated 14 March 2022, but the case of the accused-applicant is different from that of the co-accused., It is noteworthy that as many as forty-three percent of the Members of Lok Sabha elected in the 2019 general elections have criminal cases, including heinous offences, pending against them., A Constitution Bench of the Supreme Court, in Public Interest Foundation & Ors. vs Union of India & Anr. (2019) 3 SCC 224, noted the 244th Law Commission report stating that thirty percent or 152 sitting Members of Parliament have criminal cases pending, of which about half (seventy-six) involve serious criminal cases. The proportion has risen from twenty-four percent in 2004, to thirty percent in 2009, to thirty-four percent in 2014, and to forty-three percent in 2019. The Supreme Court has taken judicial notice of the criminalisation of politics and the imperative need for electoral reforms., The Supreme Court has observed that this creates an undesirable and embarrassing situation where law-breakers become lawmakers and enjoy police protection. The Court directed the Election Commission of India to take appropriate measures to curb criminalisation in politics, but collective parliamentary will has not moved in that direction, endangering Indian democracy., The present political scenario is characterised by the nexus of crime, identity, patronage, muscle and money. Criminal politicians are often wealthier; for example, in the 2014 Lok Sabha election, sixteen of twenty-three winners with criminal charges related to murder were multimillionaires. Among the 165 Members of Parliament re-elected in 2014, the average wealth increase was Rs 7.5 crore over five years., Earlier, criminals provided support to candidates on considerations such as caste, religion and political shelter, but now criminals themselves are entering politics and receiving tickets from parties without inhibition, even when they face serious criminal charges. Confirmed criminal sheeters and even those incarcerated are given tickets by various political parties, and some are elected., It is the responsibility of Parliament to collectively restrain criminals from entering politics, and of civil society to rise above parochial considerations of caste, community, etc., to ensure that candidates with criminal backgrounds are not elected. Criminalisation of politics and corruption in public life threaten the democratic polity of India, the world’s largest democracy., The unholy nexus among organised crime, politicians and bureaucrats has eroded the credibility, effectiveness and impartiality of law-enforcement agencies and administration, leading to loss of public trust. The present accused-applicant has used money, muscle and political power to influence investigations, tamper with evidence and win over witnesses., Given the heinous nature of the offence, the evidence on record, the impact on society, and the possibility of the accused tampering with evidence and influencing witnesses, this Honorable Supreme Court of India finds no ground to grant bail to the accused-applicant at this stage. The bail application is therefore rejected.
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Reserved on 21st September, 2022. Pronounced on 7th October, 2022. Represented by: Mr. Santosh Paul, Senior Advocate with Mr. M. Shetty and Mr. Chaitanya Sharma, Advocates, versus Represented by: Mr. S. V. Raju, Additional Solicitor General, Mr. Kirtiman Singh, Chief Government Solicitor with Mr. Madhav Bajan and Mr. Yash Upadhyay, Advocates for R1 and R2 – Union of India, Mr. Akshai Malik, Special Public Prosecutor and Mr. Sandeep K. Sadawarte, Special Public Prosecutor with Mr. Shrikant and Mr. Khawar Saleem, Advocates., The petitioner has filed this writ petition praying for striking down Section 15(1) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) as being ultra vires Articles 14 and 21 of the Constitution of India, or reading it down to save it from being rendered unconstitutional, and to quash and set aside the impugned order dated 2nd September 2021 passed by Respondent No.1 (Union of India through Under Secretary, CTCR Division, Ministry of Home Affairs) and grant consequential reliefs., A preliminary objection was raised that the Bombay High Court would not have territorial jurisdiction over the subject matter of the present petition in light of the relief prayed for. Accordingly, the Bombay High Court on 3rd March 2022 directed the parties to first address the following issue: whether an order rendered by the Central Government granting sanction under Section 45 of the Unlawful Activities (Prevention) Act, 1967 can be assailed standalone per se and, if so, where would the jurisdiction or proceedings lie., Mr. Santosh Paul, Senior Advocate, addressing arguments on behalf of the petitioner, canvassed that the impugned order dated 2nd September 2021 granting sanction for prosecution under Section 45(1) UAPA for prosecuting the accused persons (including the petitioner, charge‑sheeted under Sections 16, 18 and 20 of UAPA) was passed on the basis of recommendations received by Respondent No.1 from the Authority constituted under Ministry order No. 11034/1/2009/IS‑IV dated 3rd July 2015, consisting of a retired judge and a retired Law Secretary for making an independent review of the evidence gathered in the course of investigation. The Authority gave its report to Respondent No.1 on 28th August 2021, within a day of receiving the investigation report from the National Investigation Agency (NIA) together with a list of documents collected and witnesses examined during the investigation. Addressing specifically the issue of territorial jurisdiction, the senior counsel asserted that since the decision sought to be quashed was taken by Respondent No.1 in New Delhi based upon the report of the Authority also based in New Delhi, the Bombay High Court would have jurisdiction to hear the matter., The senior counsel relied upon the judgment of this Honorable Court in Malini Mukesh Vora v. Union of India & Ors., 2009 SCC Online Delhi 1776, where the Court held that Article 226(1) empowers a High Court to issue a writ to any person, authority or government located within its territorial limits irrespective of where the cause of action arose, while Article 226(2) permits a High Court to issue writs to persons, authorities or governments located beyond the territories with respect to which it exercises jurisdiction, provided a cause of action in whole or in part arose within those territories. The Court further held that Article 226(2) supplements and does not supplant Article 226(1). The senior counsel highlighted the view expressed in paragraphs 19 and 20 of Malini Mukesh Vora, where the Court stated that a distinction has to be drawn between a challenge to legislation and a challenge to an executive action. While in Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, the challenge was to an exercise of legislative power, the challenge in the present case is to an executive action and therefore it must be assessed differently for the purposes of territorial jurisdiction., The senior counsel further relied upon the decision of this Court in Sonu Sardar v. Union of India, 2016 SCC Online Delhi 6206, where, in a challenge to orders of the President of India and the Governor of Chhattisgarh rejecting a mercy petition on account of delay and non‑application of mind, the Court held that since the material to be examined was the advice of the Cabinet and all documents pertaining to the same were in Delhi, the petitioner was free to invoke the jurisdiction of the Court and the Court was vested with jurisdiction to entertain the petition., The senior counsel also relied upon a judgment of a special bench of five judges of this Court in Sterling Agro Industries Ltd. v. Union of India & Ors., 2011 SCC Online Delhi 3162, where the Court held that even if a minuscule part of the cause of action arises within the jurisdiction of the Court, a writ petition would be maintainable before that Court. However, the Court noted at paragraph 33(a) of the reported judgment that a cause of action cannot be totally based on the situs of the tribunal, appellate authority or revisional authority while completely ignoring the concept of forum conveniens. The Court stated in paragraph 32 that the principle of forum conveniens encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious to the concept of forum conveniens. Accordingly, the senior counsel argued that, based upon the principles cited, simply because the impugned decision of 2nd September 2021 by Respondent No.1 was passed in Delhi (based on the Authority’s report which was also in Delhi), the Bombay High Court would be obligated to accept jurisdiction and ignore the principle of forum conveniens. Prima facie, application of the principle of forum conveniens would render the High Court of Bombay the appropriate forum, considering that the substantive offence, the incident and the ongoing investigation and trial were all in Mumbai. Therefore, except for the sanction order under Section 45(1) UAPA being passed by Respondent No.1 and the recommending Authority being in Delhi by virtue of the statutory mandate, all other aspects of the alleged offence and the investigation were outside the jurisdiction of the Bombay High Court., The learned Additional Solicitor General, Mr. S. V. Raju, countered the petitioner’s submissions, stating that three incidents form the basis of the investigation: (i) recovery of the vehicle on 25th February 2021; (ii) the threat letter dated 7th February 2021; and (iii) the murder of the co‑accused on 4th March 2021. The ASG submitted that the NIA has been investigating each of these aspects since 8th March 2021 in Mumbai, the charge‑sheet was filed in Mumbai, cognizance after the sanction order was taken in Mumbai and the trial is also being conducted in Mumbai., In response to the respondent’s submission that the sanction order was made in Delhi and therefore the Bombay High Court would have territorial jurisdiction, the ASG placed reliance on Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, wherein the Supreme Court held that an issue alleging non‑application of mind in sanctioning prosecution is a matter to be adjudicated by the trial court. Reliance was also placed on Central Bureau of Investigation & Ors. v. Pramila Virendra Kumar Agarwal & Anr., (2020) 17 SCC 664, paragraph 11, and Central Bureau of Investigation v. Ashok Kumar Aggarwal, (2014) 14 SCC 295, paragraph 58, both decisions relying upon Dinesh Kumar v. Chairman, Airport Authority of India & Anr., (2012) 1 SCC 53. The ASG submitted that any error committed by the trial court can be challenged before the High Court of Bombay. He further submitted that the issue of sanction by Respondent No.1 was not significant any more since the trial court in Mumbai had already taken cognizance. Hence, if this Court were to consider quashing the sanction, the issue of cognizance would also be within its ambit. He further submitted that the petitioner’s challenge was effectively on non‑application of mind while issuing sanction for prosecution under Section 45(1) UAPA based upon the recommendations of the constituted Authority and not due to an inherent jurisdictional issue in the sanctioning order. Regarding the petitioner’s reliance on Kusum Ingots v. Union of India, the ASG drew the Court’s attention to paragraphs 26 and 27, where the Supreme Court categorically decided that, as regards a legislative act, the place where such an action is taken does not necessarily robe the Court with territorial jurisdiction. The ASG further submitted that applying the principle of forum conveniens, Mumbai was the natural forum since the petitioner was a resident of Maharashtra and there was no reason for him to find it convenient to challenge the sanction order before the Bombay High Court., The senior counsel for the petitioner rebutted the ASG’s contention, reiterating the contentions advanced in the opening arguments. He highlighted paragraph 27 of the decision in Kusum Ingots, where the Supreme Court held that a challenge to a decision by a court, tribunal or executive authority under a statute would give jurisdiction to that place since it would constitute a part of the cause of action. The senior counsel contended that, since the sanction order was an executive order made in Delhi in accordance with the provisions of UAPA, a part of the cause of action arose in the territorial jurisdiction of the Bombay High Court and therefore the writ petition would be maintainable. He further relied on the decisions in Sterling Agro Industries and Sonu Sardar to state that the issue of forum conveniens had been considered in those decisions. Specifically, relying upon Sonu Sardar, the senior counsel canvassed that since all the material was located in Delhi when the sanction for prosecution was granted, it was natural for the writ petitioner to invoke the territorial jurisdiction of the Bombay High Court., Pursuant to an assessment of the documents on record, the submissions advanced by the parties through their senior counsels and the learned ASG, the Bombay High Court is of the considered opinion that it would not have territorial jurisdiction over the subject matter of the present petition for the following reasons: (i) The relief sought relates firstly to the unconstitutionality of Section 15(1) of UAPA and secondly to quash and set aside the impugned order dated 2nd September 2021 passed by Respondent No.1 granting sanction for prosecution under Section 45(1) UAPA for the accused in crime No. RC‑01/2021/NIA/ME‑I and taking cognizance of the offence by the competent court. However, this determination is restricted to the threshold issue of territorial jurisdiction as encapsulated in the order of 3rd March 2020. (ii) A perusal of FIR No.35/2021 dated 25th February 2021 registered at PS Gam Devi for offences punishable under Sections 286, 465, 473, 506(2) and 120B IPC and Section 4(A)(B)(i) of the Indian Explosives Substance Act, 1908 indicates that all events forming the basis of the FIR occurred in Mumbai, including the seizure of the Mahindra Scorpio bearing registration No. MH‑01‑DK‑9945, discovery of explosives, and the registration of the number plate in the name of an employee of Reliance Company. The NIA, vide RC‑01/2021/NIA/Mumbai, registered the case in Mumbai for further investigation. A further FIR No.12/2021 was registered on 7th March 2021 for offences punishable under Sections 302, 201, 34 and 120B IPC for the murder of Mr. Mansukh Hiren in Mumbai. Accordingly, vide order dated 20th March 2021, the Ministry of Home Affairs directed the NIA to investigate under Section 6(5) read with Section 8 of the NIA Act. All subsequent documents, including police custody, remand applications, bail applications, the charge‑sheet dated 3rd September 2021, and proceedings before the Special Judge, NIA at Mumbai, are all in Mumbai. Thus, the alleged offence, complaint, investigation, FIRs, charge‑sheet and all related proceedings have taken place in Mumbai. (iii) The only point on which the petitioner relies is the sanction order issued by the Authority constituted under Home Ministry order No. 11034/1/2009/IS‑IV dated 3rd July 2015. Even assuming that the authority granting sanction is located in Delhi, the mere fact that the authority is in Delhi does not confer jurisdiction on the Bombay High Court to quash that order when all other ingredients, events and proceedings are in Mumbai. (iv) The ASG’s contention that cognizance of the charge‑sheet has now been taken by the Special Court in Mumbai and that the trial will commence there, and that the trial court would be competent to adjudicate any challenge to the sanctioning order, also finds favor with this Court., On a broad holistic assessment of the decisions cited by the petitioner, there are two elements that any court must consider while accepting jurisdiction to decide a writ petition under Article 226 of the Constitution of India: firstly, whether any part of the cause of action arises within its territorial jurisdiction; and secondly, whether the court is the forum conveniens. A mere shred or iota of a cause of action should not encourage a court to accept jurisdiction divorced from an assessment of forum conveniens. This principle has been categorically articulated in decisions of this Court. A Special Bench comprising Chief Justice Dipak Misra, Justice Vikramajit Sen, Justice A. K. Sikri, Justice Sanjiv Khanna and Justice Manmohan, in Sterling Agro Industries (supra), after traversing the law relating to territorial jurisdiction under Article 226, emphasized that the High Court must not only advert to the existence of a cause of action but also remind itself of the doctrine of forum conveniens., The Court reproduced the following paragraphs for reference: 30. From the aforesaid pronouncements, the concept of forum conveniens gains significance. In Black’s Law Dictionary, forum conveniens is defined as “the court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses.” 31. The concept fundamentally means that the court must consider the convenience of all parties, including the existence of a more appropriate forum, expenses, the law relating to the suit, verification of certain facts necessary for just adjudication, and other ancillary aspects. The balance of convenience must also be taken into account. It has been stated by the Apex Court in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) that the applicability of the doctrine of forum conveniens does not preclude a High Court from entertaining a writ petition when a part of the cause of action arises within its jurisdiction. 32. The principle of forum conveniens encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227, the Court cannot be totally oblivious to the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra) ignored the concept of forum conveniens and held that if the appellate authority is situated in Delhi, the Delhi High Court should be treated as the forum conveniens. This Court is unable to subscribe to that view. Accordingly, in paragraph 33 of the reported judgment in Sterling Agro Industries (supra), this Court concluded that a cause of action cannot be totally based on the situs of the tribunal, appellate authority or revisional authority while completely ignoring the concept of forum conveniens, and that the High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens., The Division Bench of this Court in Sonu Sardar v. Union of India (2016) SCC Online Delhi 6206, while noting the decision in Sterling Agro (supra), examined the issue of jurisdiction where the petitioner had impugned orders of the President of India and the Governor of Chhattisgarh rejecting a mercy petition. The Court distinguished between a situation where criminal investigation was pending and where criminal proceedings had attained finality, stating that the concept of cause of action in respect of criminal proceedings does not apply sensu stricto to executive actions such as mercy petitions., The counsel for the petitioner relied upon the reasoning in paragraph 30 of Sonu Sardar, observing that since the material to be examined was the advice tendered by the Cabinet and all documents and records were in Delhi, the decision was taken in Delhi and therefore the Bombay High Court has jurisdiction to entertain the writ petition. However, this Court notes that the reasoning was premised upon the observation in paragraph 29 of that decision, where the Court limited the scope of judicial review in rejection of mercy petitions to the material upon which the decision was based, i.e., whether all relevant material was considered before arriving at a conclusion., The concept of forum conveniens is well articulated in the cited decisions, and this Court finds no basis to diverge from the view of the Special Bench comprising five judges. Considering the facts and circumstances, the obvious forum conveniens for the petitioner, who is a resident of Mumbai and seeks relief relating to proceedings underway in Mumbai, is the High Court of Bombay. Accordingly, the Bombay High Court finds no reason to clothe itself with territorial jurisdiction to adjudicate the relief sought in this petition., Since prayer (b) of the writ petition—quashing the impugned order of Respondent No.1—is the dominant relief, prayer (a) regarding the unconstitutionality of the provisions of UAPA is considered concomitant and conjunctive to prayer (b). Therefore, there is no reason to sever prayer (a) and consider it in isolation., For the aforesaid reasons, the Bombay High Court is of the considered view that the order passed by Respondent No.1 granting sanction for prosecution under Section 45(1) of the Unlawful Activities (Prevention) Act, 1967 must be considered along with the investigations and proceedings to which it relates, and the courts at Mumbai would have the natural and logical jurisdiction to decide the issues challenged in this writ petition. The issue framed by the Court on 3rd March 2022 is answered accordingly., In light of the foregoing, the writ petition is dismissed for lack of territorial jurisdiction to adjudicate the relief sought. Consequently, the aforementioned applications are disposed of as infructuous.
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Supreme Court of India (Public Relations Office) No. PR/SCI/2022/12/01 Date: 04/12/2022 With an aim of ensuring accessibility in the justice system and understanding the hardships faced by the specially abled persons in their interface with the Supreme Court of India, Honorable the Chief Justice of India has called for a comprehensive accessibility audit of the Supreme Court premises. On the International Day of Persons with Disabilities observed on December 3 every year, Justice Dr Dhananjaya Y Chandrachud has constituted a Supreme Court Committee on Accessibility chaired by a sitting judge of the Supreme Court of India., The Committee headed by Justice S Ravindra Bhat has been asked to conduct an accessibility audit extending to both physical as well as technology accessibility. The Committee has also been tasked to prepare and release a questionnaire for persons with disabilities who visit the Supreme Court premises to assess the nature and extent of the problems they face. Inputs will also be sought by the Committee from Supreme Court advocates, litigants, interns etc. The Committee also, including a professor from National Law University Bengaluru, shall prepare a report which contains the results of the audit and survey and shall recommend proposals geared towards removing barriers to access. A differently abled person employed at the Supreme Court, a differently abled advocate nominated by the Supreme Court Bar Association and a person nominated by the Centre for Disability Studies at NALSAR University of Law are other members of the Committee. An Officer of the Supreme Court Registry will be the Member Secretary of the Committee. The above initiative of Honorable the Chief Justice of India is in line with the World Health Organization's this year theme Transformative solutions for inclusive development: the role of innovation in fuelling an accessible and equitable world.
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