Let me start by first and foremost pointing out that the consolidated draft National Register of Citizens (NRC) which is a database of Indian citizens in Assam and is being prepared under the Supreme Court’s watch, is a critical step in resolving one of Assam’s longstanding and most complicated problem of illegal immigrants from Bangladesh. No politics should be done over it. No credit should be taken by any political party for it and it must be kept completely out of the dirty theatric politics over it because if this is not done then it will become completely embroiled in it and nothing substantial will ever take place actually which will be our nation’s biggest misfortune!
To be sure, the list which was made public on July 30 has left out the names of over 4 million (40,07,707 to be precise) of the state’s 32.9 million residents. But those left out should not panic. Applicants left out of the NRC may be given a personal hearing under a fresh Standard Operating Procedure (SOP) being devised by the Home Ministry. The Registrar-General of India (RGI) and the Home Ministry are exploring several options to provide adequate opportunity to 40 lakh of the 3.9 crore applicants whose names were not included in the final NRC draft published on July 30.
Be it noted, RGI Sailesh told media that the SOP would ensure that filing claims and objections was a fair and credible process. He said that, “There may be many applicants who may not understand the process and the required documentation. So we have to see that every person has the right information and the assistance required.” An official said that the circle officers or block development officers would be asked to give personal hearings to applicants even after they had exhausted the option of filing “claims and objections”.
While craving for the exclusive indulgence of my esteemed readers, let me inform here that on July 31, a Supreme Court Bench had ordered the government to frame in consultation with State NRC Coordinator Prateek Hajela, a “fair” SOP to deal with the claims and objections of those who did not find their names in the draft NRC. RGI Sailesh revealed that, “The SOP will also go into the aspects of disposal of claims and objections so that reasonable time and adequate opportunity are given to applicants. The rules say that any person can make an objection against an inclusion and any person whose name is not there can file a claim.” Every precaution is being taken to ensure that no bona fide citizen is left out! Still one just fails to comprehend that why some leaders are trying to give it a political twist and are warning of nation getting immersed in “civil war” and “bloodbath” if any action is taken on illegal immigrants! This is what is most deplorable, degrading and dangerous which cannot be justiified under any circumstances!
For my esteemed readers exclusive indulgence, it must be also informed here that in a most matured and balanced stand the RGI Sailesh when asked by media if it would be appropriate to call the 40 lakh applicants “infiltrators”, as they were being referred to by some political leaders stated unambiguously that, “We don’t have any nomenclature for them. We have the list of eligible people for inclusion in NRC and the total [number of] applicants in NRC. For us they are applicants.” The Home Ministry too commendably had earlier told the Assam government that no action should be initiated by the administration or the police based on the draft NRC. The RGI has been asked to use all means of communication, including websites, toll-free numbers and SMS, to provide information to the public about the draft NRC.
Truth be told, while it is not yet clear who will decide the fate of the 4 million applicants who have been left out and have not made it to the final draft of the NRC, the issue of illegal immigrants in Assam has been historically determined by two tribunals. The first is the Foreigners Tribunal (FT) which was set up by the Assam government in 1964 to identify the legal status of suspected foreigners in Assam. There are 100 FTs in Assam as on date. The second is the Illegal Migrants Determination Tribunal, or IM (DT), established in 1985, with special provisions for Assam. It only considered the cases of those who had allegedly entered India after March 25, 1971 and crucially these placed the onus of proving citizenship on the accuser rather than the accused. The IM(DT) Act was subsequently struck down by the Supreme Court as being unconstitutional in 2005.
As it turned out, high pendency has severely plagued the working of the two tribunals, according to data from a 2012 white paper issued by the Assam government. Between 1985 and 2012, about 221,000 cases were referred to the two tribunals. During this period, they disposed of only about 97,000 cases. In these, they declared about 55,000 individuals as foreigners, leading to the deportation of 2,442 individuals. Between the two tribunals, the IM (DT) courts have been seen to be far less efficient and also less likely in declaring a person a foreigner. However, they were more likely to effect deportations. The high pendency in the two tribunals has been attributed to the lack of judicial supervision, long vacancies of members and inadequate staff. And now, in Assam, there are 4 million cases to be heard. What all has been disclosed here was effectively highlighted by Arjun Srinivas who is a recipient of the Mint-Hindustan Times-HowIndiaLives Data Fellowship 2018 in Hindustan Times newspaper dated August 9, 2018.
Going forward, Zia Haq in this same newspaper and same date further goes on to point out elaborately that, “The list made public on July 30 has left out the names of over 4 million (40,07,707 to be precise) of the state’s 32.9 million residents. Assam has witnessed large-scale migrations from Bangladesh, with which it shares a 267.5-km border. Natives want illegal migrants to be deported. The terms of citizenship in Assam were written into an agreement, the so-called Assam Accord which was signed on August 15, 1985 by the then Rajiv Gandhi-led Congress government with the All Assam Students Union (AASU). It was the culmination of a six-year agitation led by the student body against illegal settlers. According to the pact, anybody who can prove that they or their families were in Assam prior to the midnight of March 24, 1971 would be deemed a citizen. The NRC was not a part of the Assam Accord. It was suggested by the previous Congress government on May 2, 2005 during tripartite talks involving the state government and the AASU in which former PM Manmohan Singh was present. In June 2010, the Tarun Gogoi-led Congress government of Assam started a pilot project in two districts – Barpeta and Chaigaon – to vet citizenship and update the citizens’ registry, first compiled manually in 1951, the year of India’s first census. The names of many native Assamese like Dhrubojyoti Sharma of Rangia, a central committee member of the Asom Gana Parishad are missing. The aim of publishing the citizens register, a list of all Indian citizens in Assam, on the directions of the apex court is to identify genuine residents. A correct NRC will be a milestone. Residents need two sets of documentation to prove citizenship. The first is to furnish documents in “List A”. This refers to any government-certified document from before 1971, such as names in a similar 1951 citizens register, or a school certificate, birth certificate, land records etc. This is the so-called “legacy data”. Then, they are required to submit documents mentioned under “List B”. Purpose of documents under List B need to clearly link up with those in List A, proving ancestry.”
Having said this, let us now discuss some pertinent questions on this very vexed issue as also on citizenship in India which is grabbing the eyeballs of not just the people of India but extending all across the globe! This will certainly enable more clarity on this vexed issue which is being unnecessarily politicised by few politicians for serving their own vested political interests. Rahul Tripathi has brilliantly dwelt on the same in The Indian Express dated August 3, 2018. They are as follows: -
How is citizenship determined in India?
Indian citizenship can be acquired by birth, descent, registration and naturalisation. A person domiciled in India as on November 26, 1949 – the date when the Constituent Assembly adopted the Constitution – autmoatically became a citizen if he or either of his parents was born in India, or if he had been in India for at least five years until that date.
For those born in India after the Constitution came into effect, the Citizenship Act, 1955, grants citizenship by birth based on birth dates. Anyone born between January 26, 1950 and July 1, 1987 is a citizen by birth; a person between July 1, 1987 and December 3, 2004 is a citizen by birth if either of his parents is a citizen of India at the time; those born on or after December 3, 2004 is a citizen by birth if both parents are citizens of India at the time, or if one parent is a citizen and the other is not an illegal migrant – defined as a foreigner who entered India without valid documents, or stayed beyond the allowed period.
Citizenship by registration can be acquired by persons of Indian origin who have lived in India for 7 years before applying, persons of Indian origin who live in any country outside undivided India, persons marrried to a citizen of India and who have lived in India for 7 years before the application. Any minor child can be registered as a citizen if the government is satisfied that there are special circumstances.
Is it possible for a foreigner with no connection to India(marriage, descent etc) to become a citizen of India?
This is citizenship by naturalisation. Any foreigner, provided he is not an illegal immigrant, can acquire citizenship, provided he has stayed in India for 12 consecutive months preceding the date of application, and for 11 years out of the preceding 14 years.
Is citizenship permanent?
Under Section 9(1) of the 1955 Act, a person ceases to be a citizen if he or she voluntarily acquires the citizenship of another country or renounces Indian citizenship. India does not allow dual citizenship. Under Section 10, anyone who has become a citizen of India by naturalisation or by registration due to marriage to an Indian citizen can be deprived of the citizenship by the Home Ministry for certain reasons.
How is Assam different? Why a separate National Register of Citizens?
This is because of a history of migration. During British rule, Assam was merged with Bengal Presidency for administrative purpose. From 1826 to 1947, the British continuously brought migrant workers to Assam for cheap labor in tea plantations. Two major waves of migration came after British rule – first after Partition, from East Pakistan (now Bangladesh), and then in the aftermath of the liberation of Bangladesh in 1971. This eventually led to an agitation during 1979-85, led by the All Assam Students Union. It culminated in the 1985 Assam Accord signed with the Rajiv Gandhi government, under which illegal migrants were to be identified and deported. Clause 6A was inserted in the Citizenship Act with special provisions for Assam.
What are those provisions?
These take into account two cutoff dates – January 1, 1966 and March 25, 1971. Anyone who was a resident of Assam before the first date is a citizen. Migrants who entered on any day between these two dates, and remained there, would need to register with a Foreigners Tribunal. For 10 years, they would have all rights of a citizen except the right to vote which would be granted at the end of 10 years. Finally, migrants who entered Assam on or after March 25, 1971, are not eligible for citizenship.
Is this not the cutoff date for NRC too?
Yes. For inclusion, applicants need to prove that they – or their parents, grandparents etc – were citizens before March 25, 1971. Those who could not prove this, as well as their offspring, have been excluded. Assam already has an NRC, prepared in 1951 with 80 lakh citizens, on the basis of that year’s Census. In 2003, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules were amended for updating the NRC in order to identify genuine citizens.
What was the mechanism for identifying migrants earlier?
When Indira Gandhi was Prime Minister, the government introduced the Illegal Migrants (Determination by Tribunal) Act, applicable only to Assam. Against the Foreigners Act that was in force elsewhere, the IMDT Act was seen as ineffective as the burden of proof of someone being a foreigner was on the accuser and not on the state or the accused. In 2005, the Supreme Court struck down IMDT Act on a petition filed by Sarbananda Sonowal, then an AGP leader, now Assam Chief Minister and a BJP leader.
Before the NRC update, Assam was witnessing protests over the Citizenship Amendment Bill. What was this about?
In 2016, the Centre introduced amendments to the Citizenship Act to grant citizenship to religious minorities (mostly Hindus and including other non-Muslims) from Pakistan, Bangladesh and Afghanistan who took shelter in India. The Bill relaxes norms for granting them citizenship by decreasing the residency requirement from 11 years to six years. In Assam, where the agitation was against migrants irrespective of religion, this has led to protests. The Bill is currently pending with a Joint Parliamentary Committee.
Is there a similar situation for migrants in any other state?
In Arunachal Pradesh, a demand for citizenship to Chakmas has been pending for decades. While the Centre is keen to grant them citizenship, it is being opposed by the state government. In Kashmir, West Pakistan refugees are allowed to vote in national elections but not in Assembly elections.
It is heartening to note that amid an intensifying ugly political slugfest over Assam NRC, the Supreme Court on July 31 stated that the exercise for verifying the citizenship of residents of the state will be taken to its logical conclusion, even as it asked the Centre to frame a ‘fair and equitable’ standard operating procedure to adjudicate claims for Indian citizenship. A Bench of Supreme Court comprising Justices Ranjan Gogoi and RF Nariman made it plain that the exercise being conducted under the court’s aegis identifying alleged aliens residing in Assam will not stop, but nipped the fear of any immediate fallout for those who have not made it to the draft NRC by saying that no coercive steps will be taken against them. NRC coordinator Prateek Hajela told the Apex Court that, “Of the 40.07 lakh who don’t find their name in the list, applications of 37.59 lakh persons have been rejected and those of 2.48 lakh have been put on hold.”
Truly speaking, Attorney General KK Venugopal said the ministry concerned would prepare a detailed SOP to receive and adjudicate claims and objections of those excluded from the NRC. Venugopal said that, “Given the magnitude of the human dimension of the problem, it would be appropriate if the SC assured the public against any coercive step on the basis of draft NRC.” The Bench said it gives no assurances but passes orders. The Bench said: “In this regard, the court would like to observe that what has been published being a draft NRC, it cannot be the basis for any action by any authority” thus allaying fears among members of the minority community that they could face immediate deportation proceedings.
Needless to add, the Bench also said: “Whatever be the modalities in the SOP, it has to be a fair procedure. Those who have been excluded from the draft NRC must get a fair opportunity. Whatever SOP you (the Centre) want to frame to govern this (claims and objections) must be a fair procedure.” Asked about a possible timeline, the AG said that it will depend on the total number of claims and objections received. However, Justices Gogoi and Nariman were firm to take to logical conclusion the long drawn exercise of preparation of draft NRC, credit of which largely goes to the Bench for its untiring monitoring of the process undertaken by a team of thousands of state government officers, led by IIT Delhi electronics graduate-turned IAS officer Hajela since 2013. The first draft NRC was published on December 31, 2017 when 1.9 crore of the 3.29 crore population of Assam was included in it.
Simply put, the Bench asked the Centre to place the draft SOP for receiving and adjudicating claims and objections before the court on August 16 for vetting. Making clear its intention to finalise the draft NRC in due course, the Bench said: “We permit the concerned ministry of the Union government to frame modalities and place it before the court for dealing with claims and objections so as to enable publication of final NRC.” On August 16, the court said it would draw up the time schedule for this. Hajela told the court that the draft NRC would be on display at local registrar office from August 7 to permit public to verify their names. He also said that, “Those who have objections or claims against draft NRC, can file it with supporting documents before local registrar in 30 days from August 30 till September 28.”
Interestingly enough, the Centre proposes to include Indian citizens who are not from Bangladesh and who moved to Assam from other parts of the country before or after March 24, 1971 in the National Register of Citizens (NRC) if their citizenship is proved beyond reasonable doubt. This is part of the SOP drawn up by the Centre to deal with claims and objections of those who have been left out of the draft NRC which is being prepared on the directions of the Apex Court. The government also suggested that the time for filing claims and objections regarding inclusion of names in the draft NRC be extended from the one month proposed initially to two months.
It must be added here that the document pointed out that the Supreme Court in its July 21, 2015 order had said “…Indian citizens including their children and descendants, who may have moved to the State of Assam subsequent to 24th March, 1971 would be eligible for inclusion in the NRC on adducing satisfactory proof of residence in any part of the country (outside Assam) as on 24th March 1971.” The government, however said that in some cases, people have not been able to provide documents to prove their residence in any part of the country. For such people, it proposed to make provisions similar to Rule 4 of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 and Clause 3(3) of the Schedule.”
Accordingly, government submitted that, “citizens of India who originate from other states in India and who do not have any origin in specified territory (Bangladesh) and have moved to State of Assam prior to 24th March 1971 or after will be included in the NRC if the citizenship of such persons is ascertained beyond reasonable doubt to the satisfaction of the authorities disposing of claims and objections. Cases of all such persons whether ordered for inclusion by the authority (disposing claims and objections), or for exclusion, will be examined first by the CRCR (Circle Registrar of Citizen Registration) and then by the DRCR (District Registrar of Citizen Registration). The final decision of inclusion or exclusion will be taken by the DRCR, who will issue a speaking order issued under his deal and signature” the SOP stated adding that “authorities examining the claim and the DRCR will exercise great caution to ensure that no illegal person’s name is included taking recourse to the above provisions.”
Of course, the government also submitted that claims involving children of 14 years who have been left out from the draft NRC and whose parents have included in it “will be segregated and pre-claim verification undertaken by CRCR to ascertain the shortcomings in linkage documents or any inconsistencies thereof.” It said the DRCR concerned will ensure specific hearings for the composite family in respect of these children and oral and written evidences from parents will be available. This “special consideration” was needed, the government said, because adequate documentary evidence may not be available for children below age 14. “Claims where only married women are involved and have no linkage document other than Gaon Panchayat Secretary Certificate issued prior to August 2015 will be examined separately in accordance with the guidelines issued in its compliance to Hon’ble Supreme Court orders on the verification of Gaon Panchayat Secretary Certificate for married women,” it said.
In essence, the Local Registrar of Citizen Registration (LRCR) will issue notices for hearing the objections raised to inclusion of any names including to the person against whom the objection raised. To “ensure fairness and objectivity”, the government said, “it is considered necessary that the officers who have decided the applications at the stage of draft NRC (LRCR) are not the decision-making authority at the stage of disposal of claims and objections”. Centre stated that the state had informed that it will be able to make available 1,500 to 2,500 Class I officers for this. The exact requirement will, however, depend on the number of claims and objections that are filed, the SOP said, adding that it was also proposed to appoint senior state government officers as observers to oversee the process of disposal of claims and objections.
As things stand, during the hearings, the state, in collaboration with UIDAI, will undertake biometric enrolment of applicants. Once the final NRC is published, those included in it will be given Aadhaar numbers. The SOP also provides a timeline for completing tasks. Accordingly, the period for receiving claims and objections will be from August 30 to October 28. The hearings will start from December 15 onward. It may be recalled here that on July 31, a Bench of Justices Ranjan Gogoi and RF Nariman while allowing the government to draw up the SOP had said it would approve the same if the procedure adopted was fair, else it would correct it.
It must be brought out here that the Registrar General of India (RGI) will not make public the reasons for excluding the names of 40 lakh people from the NRC, the final draft of which was just released. This will certainly give an opportunity to some to raise serious question marks over such secrecy especially those who are not at all happy with this historic move! The only exceptions to this are those who have been marked ‘doubtful’ voters by the Election Commission (voting rights of such people and their descendants already stand suspended) and those who have, at any point of time, been referred to Foreigners Tribunals and their descendants. These two categories of people, numbering 2.48 lakh already know that their names would not be included in the draft NRC until their names are cleared by the tribunals.
It must also be brought out here that another 1.5 lakh people whose names were part of the draft published in December but have been excluded from the final draft, will be informed about the reason for their exclusion by a letter of information (LOI). These applicants were excluded for one of three reasons – either their names had been erroneously included, they were found to have submitted false claims or panchayat certificates submitted by them were found invalid. NRC State Coordinator Prateek Hajela submitted before the Supreme Court while seeking its permission which was subsequently granted that, “The LOI will have to be served to the rejected applicants within seven days from the date of publication of the complete draft. The LOI will explicitly state that the applicant has an opportunity to file a claim for inclusion in the NRC. The LOI will also inform the time schedule and place of submission for the claim.” The rest of the excluded persons will have to file a fresh application in a prescribed form with the local registrar of citizen’s registration between August 7 and September 28 to know the reason for exclusion. RGI Sailesh said that, “Each of the individuals will be given a letter citing the reason for exclusion.”
All said and done, it is a herculean task to ensure that innocents are not harassed and illegal immigrants are not spared from being deported to their respective countries from where they entered illegally to India. Similarly all those who burn Indian flags and chant anti-Indian slogans must be deported from all across India! All political parties must refrain from indulging in petty politics as it concerns our national security and there can be no compromise on it! Rajnath Singh who is Union Home Minister very rightly cautioned parties against politicizing it. He said: “Whatever work is going on in the NRC, is happening under the supervision of the Supreme Court. To say that the government has done it, and it is inhuman and brutal…such allegations are baseless. It is not the right thing to say. Some people are unnecessarily trying to create an atmosphere of fear. I want to assure all that there is no need for any apprehension or fear. Some misinformation is also being spread.” Appealing to the House, Rajnath Singh again very rightly said that, “This is a very sensitive issue. Everyone should lend their support. I want to make it clear…you can express your anger…but let me tell you that the government is not doing anything…everything is being done under the supervision of Supreme Court.” Absolutely right! Rajnath also very rightly said that there is no question of any coercive action against anyone while stressing that NRC process is “being carried out with complete fairness and transparency”. He also made it clear that if anyone was not satisfied with the final draft of the NRC, that person would get an opportunity to file claims and objections as per provisions in the law and also approach the Foreigners Tribunal. He also clarified that, “Only after the disposal of claims and objections, will the final NRC be published.”
On a concluding note, what is being done in Assam is truly laudable and should be emulated in all parts of India to ensure that illegal immigrants are first identified and then deported back to their native country! If this is not done, it is bound to have disastrous consequences on the unity and integrity of India. Also, all those who stay in India and repeatedly swear by Pakistan or any other foreign country must be first identified and then deported to the country of their choice without wasting anymore time because it goes without saying that, “You cannot be a Pakistani and an Indian at the same time because India and Pakistan are separate countries since 1947. You cannot claim fundamental rights under the Indian Constitution while believing in Pakistan and burning our flags and Constitution”. Same holds true for other countries as well. Those who burn Indian flags, Indian Constitution, insult national anthem and sing Pakistani anthem or anthem of any other country must migrate to their country of choice and if they don’t they must be deported at all cost and under all circumstances. Similarly those who stay in India and still attack army vehicles and slap our brave soldiers and throw their helmets in gutter must be deported without showing any leniency of any kind towards them irrespective of their religion, caste, creed or sex! Similarly if a person has no proof of citizenship but swears by India and demonstrates total loyalty for nation by doing exemplary acts of courage and promotes harmony must be rehabilitated in India at all cost and under all circumstances no matter what his/her religion, caste, creed, community or sex is!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh
“Though it is the responsibility of the state to bring the accused to law but in such process the actual sufferer of crime cannot be permitted to stay outside the law and to watch the proceedings from hindsight. It will be travesty of justice if the victims of such heinous crime are denied right to address their grievances before the courts of law.”
Yes, this is exactly what the Division Bench of Madhya Pradesh High Court has held right at the very outset while delivering its landmark judgment on July 18, 2018 in the landmark case of Mahesh Pahade vs State of MP in Criminal Appeal No. 933/2014 (Order on 1A No. 6367/2017) and very rightly so! While holding this in no uncertain terms it relied upon Declaration of “Basic Principles of Justice of Victim for Crime and Abuse of Power” which was adopted in the 96th plenary meeting of the General Assembly on 29th November 1985. This is truly laudable!
Needless to say, a Bench of Madhya Pradesh High Court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla held thus while considering the maintainability of an application seeking cancellation of an order of suspension of sentence filed by the victim in the criminal appeal preferred by the convict. The accused, who was convicted by the trial court for sexually exploiting his niece, had preferred appeal before the high court. The application filed by the accused seeking suspension of sentence was allowed by the high court.
Going forward, the victim, then approached the high court contending that he was granted bail on the basis of additional document, which could not have been taken into consideration at the stage of consideration of the application for suspension of sentence and that too without giving any opportunity to the victim to controvert the allegation, which was pertaining to the age of the prosecutrix. The counsel for the accused-appellant questioned the very maintainability of such an application by the prosecutrix contending that even if a victim has been given right to file an appeal against an order of acquittal in terms of proviso to Section 372 of the Code, she does not become entitled to seek cancellation of bail. To buttress its stand, a recent judgment by the Apex Court in The High Court of Judicature of Hyderabad For The State of Telangana And the State of Andhra Pradesh vs Mahabunisa Begum & Others was also cited in support of its arguments. It was also contended that only the public prosecutor can file an application for cancellation of bail.
To be sure, Chief Justice Hemant Gupta notes at the outset that, “The application (I.A. No. 6367/2017) is for cancellation of bail granted to the appellant on 09.12.2016 under Section 389 of the Code of Criminal Procedure, 1973 (for short “the Code”) on behalf of the prosecutrix. Further, in para 2, it is observed that, “The present appeal arises out of a judgment passed by the learned Sessions Judge, Mandla on 10.02.2014 convicting the appellant for an offence punishable under Section 376(2)(n) of the Indian Penal Code, 1860 (for short “the IPC”) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him to suffer imprisonment for life for an offence under Section 376(2)(n) of the IPC and fine of Rs 20,000/- in default of payment of fine, to further undergo rigorous imprisonment for two years.”
Moving ahead, in para 3 it is pointed out that, “The allegation against the appellant is that he exploited the prosecutrix of 14 ½ years of age from October, 2010 to 10th February, 2013. The appellant is related to the prosecutrix being his uncle. The accused was a visitor to the father of the prosecutrix at their house and used fiduciary relationship to sexually exploit her. The learned Trial Court convicted the appellant for the offences charged and sentenced the appellant in the manner indicated hereinabove.” Also, it is brought out in para 4 that, “While considering the third application for suspension of sentence, this Court passed an order on 09.12.2016 admitting the appellant to bail. The appellant had relied upon additional document obtained under the Right to Information Act, 2005 that the date of birth as mentioned in Ex P-10 as 24.10.1998 does not belong to the prosecutrix and in fact, belongs to another person Dharamraj. In reply on behalf of the respondent, the stand of the appellant was denied, but, the Court found that certificate issued by the Authorities makes the document of age submitted by the prosecution as doubtful. It was observed that the prosecutrix being less than 18 years of age may not be correct if the benefit of three years on either side is considered. Thus the age arrived at by the learned trial Court on the basis of an ossification test conducted on 01.03.2013 in which she was found to be 13 ½ to 14 ½ years of age may not be justified.”
Simply put, para 5 brings out that, “In an application for cancellation of bail, it is pointed out that the registration number has been wrongly mentioned in the certificate (Ex P-10). The correct Serial No. is 1757 and actually she was born in village Ikalbihari and contents of Ex P-10 are correct. It is pointed out that the certificate cannot be said to be a forged document only on the basis of wrong registration number. It is also pointed out that even if the benefit of three years of age is given to the prosecutrix, still she does not attain the age of 18 years as the maximum age would be 17 ½ years. Thus, it is pointed out that the appellant has been granted bail on the basis of additional document, which could not have been taken into consideration at the stage of consideration of the application for suspension of sentence and that too without giving any opportunity to the victim to controvert the allegation, which was pertaining to the age of the prosecutrix.”
As it turned out, in para 6, it was observed that, “Learned counsel for the appellant vehemently resisted the application for cancellation of bail and argued that such application is not maintainable, as in terms of Section 389 of the Code, it is only the Public Prosecutor who can file an application for cancellation of bail. Even if a victim has been given right to file an appeal against an order of acquittal in terms of proviso to Section 372 of the Code, she does not become entitled to seek cancellation of bail. Learned counsel for the appellant relies upon a judgment of the Supreme Court reported as (2015) 15 SCC 613 (Satya Pal Singh vs State of Madhya Pradesh and others) wherein it has been held that right to prefer an appeal to the High Court in terms of proviso to Section 372 of the Code can be exercised only after obtaining leave of Court as required under Sub-section (3) of Section 378 of the Code. It is, therefore, contended that the rights of the prosecutrix are not larger than that of a Public Prosecutor. The Public Prosecutor alone has been conferred right to seek cancellation of bail, therefore, the application for cancellation of bail at the instance of prosecutrix is not maintainable.”
Not stopping here, para 7 goes on to say that, “Learned counsel for the appellant also refers to a judgment of the Supreme Court reported as (2016) 10 SCC 378 (Dhariwal Industries Limited vs Kishore Wadhwani and others) to argue that the prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by such person is required to act under the directions of the Public Prosecutor.”
Now coming to para 8, it says that, “Learned counsel for the appellant also relies upon an order passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 2240/2018 (The High Court of Judicature of Hyderabad for the State of Telanagana and the State of Andhra Pradesh vs Mahabunisa Begum & others) on 14.05.2018, wherein, an order of High Court for the State of Telangana and Andhra Pradesh rendered in Criminal Petition No. 7108/2017 (Smt Mahabunnisa Begum vs State of Telanagana and 2 others) was set aside in the light of the decisions reported as (1999) 7 SCC 467 (Shiv Kumar vs Hukam Chand & Anr.) and Dhariwal Industries Ltd. (supra). It may be stated that before the High Court in Criminal Petition No. 7108/2017 (supra), the complainant sought permission to prosecute a criminal case registered on her complaint through a private Advocate. The petition was allowed and the complainant/victim was permitted to engage a private advocate and conduct prosecution by further examination of any witness in addition to the public prosecutor.”
Having said this, it would be apposite to now have a glimpse at what para 10 of this landmark judgment says. It points out that, “On the other hand, learned counsel for the prosecutrix invited our attention to the decisions of the Supreme Court reported as (1979) 4 SCC 719 (Rattan Singh vs State of Punjab); a Constitutional Bench decision reported as (1980) 3 SCC 141 (P.S.R. Sadhanantham vs Arunachalam and another); and (2000) 2 SCC 391 (R. Rathinam vs State by DSP). Learned counsel has placed a heavy reliance upon a decision reported as (2001) 6 SCC 338 (Puran etc. vs Rambilas and another etc.) and a recent decision of the Supreme Court reported as (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others). Learned counsel also relies upon the Declaration of “Basic Principles of Justice of Victim for Crime and Abuse of Power” adopted in 96th plenary meeting of the General Assembly on 29th November 1985. The declaration laid down the following for access to justice and fair treatment to the victims: -
“4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the deposition of their cases especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.”
Truth be told, para 12 states explicitly that, “The judgment referred to by the learned counsel for the appellant deals with the right of a victim to assist the public prosecutor during trial or the right of appeal under Section 372 of the Code but present is a situation where the prosecutrix is not seeking her right to engage an Advocate for prosecution of the accused or for filing an appeal. The accused stands convicted and is in appeal. The grievance of the prosecutrix is that the appellant has sought suspension of sentence on the facts, which were not on record and also by misrepresenting the factual situation. However, as mentioned above, we are not examining the merits of the prayer for cancellation of bail but only for the purposes of locus standi, this fact is mentioned.”
Be it noted, para 13 further while pointing out deficiencies in our criminal law states that, “In Rattan Singh (supra), the Supreme Court held that it is a weakness of our jurisprudence that the victims of the crime and the distress of the dependents of the prisoner do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law and this is a deficiency in the system which must be rectified by the legislature.”
Truly speaking, para 21 which is the next most relevant para points out explicitly that, “The declaration of basic principles of justice for victims of crime issued by General Assembly of United Nations provides for victim to obtain redress through formal and informal procedures that are expeditious, fair, inexpensive and accessible. Such declaration contemplates that responsiveness of judicial and administrative processes to the needs of victims should be facilitated by informing the victims of their role and the scope, timing and progress of the proceedings including allowing the views and concerns of the victims to be presented and considered at the appropriate stages of the proceedings where their personal interests are involved. Therefore, though it is the responsibility of the State to bring the accused to law but in such process the actual sufferer of crime cannot be permitted to stay outside the law and to watch the proceedings from hindsight. It will be travesty of justice if the victims of such heinous crime are denied right to address their grievances before the courts of law.”
It cannot be lost on us that para 22 further brings out that, “The judgment in Puran’s case (supra) arises out of an order passed by the High Court cancelling bail granted by Additional Sessions Judge. The Court has drawn distinction when conditions of bail are being infringed such as interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner or when the cancellation of bail is sought when bail is granted by ignoring material evidence on record or a perverse order granting bail is passed in a heinous crime. Such an order was said to be against the principles of law. That was a case of an offence under Section 498 and 304-B of IPC. The Court noticed that such offences are on the rise and have a very serious impact on the society. The Court held that concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts require such cancellation. The Court considered an argument that a third party cannot move a petition for cancellation of bail as the prosecution has not moved for cancellation. The Court held that an application for cancellation of bail is not by a total stranger but by the father of the deceased. Therefore, it was held that powers so vested in the High Court can be invoked either by the State or by an aggrieved party. The said power could also be exercised suo motu by the High Court. In view of the aforesaid judgment, which pertains to era prior to amendment in Section 372 of the Code giving right to a victim to file an appeal against the order of conviction, clearly gives right to the prosecutrix, a victim of heinous crime on her person to approach this Court for cancellation of bail.”
Now coming to the concluding part, the Bench in para 23 clearly enunciates that, “Once right of appeal has been given to a victim, it shall include all ancillary rights which are attached with the right to appeal. Such right to appeal will include right to seek cancellation of bail if the victim is aggrieved against such an order.” Finally and most importantly, the Bench of Madhya Pradesh High Court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla comes to the logical and quite palpable conclusion as they concluded by observing categorically that, “In view of the above, we find that the victim has a right to seek cancellation of an order of suspension of sentence, as it is her rights and honour, which is in issue apart from the crime against humanity protected by the State.” Absolutely right! There can be no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
It has to be said right at the outset that in a remarkable and laudable judgment with far reaching consequences, the Delhi High Court in Harsh Mander & Anr v UOI & Ors in W.P.(C) 10498/2009 & CM Appl. 1837/2010 on August 8, 2018 decriminalised begging, striking down as “unconstitutional” the provisions which made it an offence. How can any law on earth punish a poor and hapless person who due to some reason is unable to earn as for instance those who lose their hands and legs and are not literate and are compelled to resort to begging due to no other option being left before them? This precisely is the reason why Delhi High Court too struck the right chord and struck down the provisions in a law that criminalises begging! I have really just no words and am falling short of words to express my utmost and unadulterated appreciation for this landmark judgment which must be read by all those who are literate and it must be emulated by all courts in all parts of the world and not just in India alone!
To be sure, the Delhi High Court Bench comprising of Acting Chief Justice Gita Mittal and Justice C Hari Shankar who delivered this landmark judgment begins at the very beginning by first and foremost quoting from an article in The Guardian which says that, “…A society that sees legislating inequality and homelessness into invisibility has unquestionably lost its way…” Going forward, the Bench clearly held that, “The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down.” Very rightly said! There can be no denying it!
It must be revealed here that this landmark judgment came on a petition filed by activists including Harsh Mander, who was represented by senior Supreme Court advocate Colin Gonsalves. It said the provisions of the Bombay Prevention of Begging Act which treats begging as an offence cannot sustain constitutional scrutiny.
Interestingly enough, while there is no central law on begging and destitution, several States have either adopted the Bombay Prevention of Begging Act, 1959 or have modeled their laws on it. The Act prescribes a punishment of detention for not more than three years if a person who was detained in a certified institution, is found begging and is convicted for the first time. All offences under the Act, except those under Section 11, are to be tried summarily. Section 11 which gives the opportunity of being heard to the accused, imposes a punishment of a minimum of one year and a maximum of three years imprisonment on those who cause others to beg or use them for begging.
It must be brought out here that the Act was made applicable to Delhi in 1960. The Delhi High Court was hearing two PILs – filed by social activists Harsh Mander and Karnika Sawhney – challenging the constitutionality and validity of all Sections, except Section 11 of the Act. They had alleged a violation of Articles 14, 19, 20, 21 and 22 of the Constitution of India by the impugned provisions. They had pointed out that the definition of “begging” under the Act violated Article 14, as it does not make any distinction between persons who solicit or receive money for authorized purposes and those who are singing, dancing or engaged in similar activities.
In addition, they had further alleged that the Act was being arbitrarily applied. They submitted that, “While the Act unjustly restricts the movement of beggars, the application of the Act also limits the movement of a large number of no-beggars. Interviews with lawyers providing legal aid have revealed that 74% of persons arrested were from the informal labour sector such as those employed in small hotels, markets and construction, and 45% were homeless. It was observed that beggars were unaware of the reasons of arrest and were taken to the Beggars Court at the pretext of doing some work like cleaning.”
As things stood, the Bench agreed with the petitioners contentions and noted inter alia that the law does not in fact make any distinction between types of begging i.e. voluntary or involuntary. It further noted that the State was using homelessness and begging synonymously and termed this arbitrary. Besides, the Court considered the “futility” of lodging and detaining beggars in beggars home as a wastage of public funds, and highlighted the inadequacy of the impugned provisions, observing, “”If we want to eradicate begging, artificial means to make beggars invisible will not suffice. A move to criminalize them will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges and isolation.”
Suffice it to say, the Bench said the inevitable consequence of this verdict would be that the prosecutions under the Act against those who are alleged to have committed the offence of begging, would be liable to be struck down. It held that, “The power to do so would, however, appropriately vest in the courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgment, and our observations and findings contained herein.”
Needless to say, in her last judgment as the Acting Chief Justice of the Delhi High Court, Justice Gita Mittal who has been approved as the Chief Justice of Jammu and Kashmir High Court minced absolutely no words in stating clearly and categorically that, “People in this stratum do not have access to basic necessities such as food, shelter and health, and in addition criminalizing them denies them the basic fundamental right to communicate and seek to deal with their plight.” Absolutely right! No person in his right senses will ever disagree with what Justice Gita Mittal has said!
Be it noted, Delhi Prevention of Begging Rules 1960 formulated under the Bombay Prevention of Begging Act 1959, makes begging an offence. Under this offence, beggars were often picked up and produced before the courts from where they were sent to beggar homes. The 23-page landmark judgment came on two pleas, challenging various sections of the Bombay Begging Act which was adopted by the Union Territory of Delhi in 1960. Para 1 of this landmark judgment begins by pointing out that, “These writ petitions challenge the constitutionality and validity of all sections, except Section 11 of the Bombay Prevention of Begging Act, 1959 (hereafter referred to as the ‘Act’) as extended to the Union Territory of Delhi (now the NCT of Delhi) vide G.S.R. No. 638 dated 2nd June, 1960, published in the Gazette of India, pt. 11, Section 3(i), dated 11th June, 1960 on the ground that it violates the Fundamental Rights guaranteed under Articles 14, 19, 20, 21 and 22 of the Constitution of India.”
Truth be told, the Bench of Delhi High Court said that they are spared the necessity of striking down the entire Act and dealt with 25 Sections which either treat begging as an offence committed by the beggar or deal with ancillary issues such as powers of officers to deal with the said offence among others. It held that, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence.” It further went on to say that, “These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.”
Simply put, while striking down the legal provision criminalizing begging in the capital, the Bench of Delhi High Court observed that, “Begging is their last resort to subsistence; they have no other means to survive.” It also observed that, “People beg on the streets not because they wish to, but because they need to.” It also slammed the government for its failure to ensure the bare essentials of the right to life to all its citizens, even in Delhi, the national capital.
As it turned out, the Delhi High Court Bench added that the state is at liberty to bring in an alternative legislation to curb any rackets of forced begging, after undertaking an empirical examination on the sociological and economic aspects of the matter. It also sent out a loud and clear message to the State by holding that, “If the State wishes to criminalise specific types of forced beggary, it has to first think out a clear factual basis and impact thereof to pass a well thought legislation after due application of mind and being mindful of the rights provided under the Constitution of India.”
It must be reiterated that the Bombay Prevention of Begging Act, 1959 functions as the derivative figure for all state anti-begging laws. Several beggars have been thrown into jail in the capital under the law. Such laws must be struck down and in Delhi this is exactly what the Delhi High Court has opted to do!
Truly speaking, the Delhi High Court very clearly and convincingly held that, “Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net. The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens.” It also said that, “We find reports of starvations deaths in the newspapers and ensuring education to the 6 to 14 year old remains a challenge.” Madhur Verma who is Delhi Police spokesperson while hailing this landmark judgment rightly said that, “It’s a welcome move as begging is more of a social menace. It requires a more inclusive approach. Arresting someone for begging was hardly ever a solution.”
Until now, the police was empowered to arrest beggars. This was used to arrest many poor and hapless beggars which only further served to rub salt on their wounds! But this landmark judgment will certainly now act as the most potential deterrent in protecting beggars from being arbitrarily arrested and thrown behind bars just for begging! It has most certainly come as a real beacon of hope for these poor hapless beggars who feel their voice is unrepresented among the higher echelons of ruling class!
It cannot be lost on us that para 31 of this landmark judgment pulls back no punches in conveying it clearly and categorically that, “Criminalizing begging is a wrong approach to deal with the underlying causes of the problem. It ignores the reality that people who beg are the poorest of the poor and marginalized in society. Criminalizing begging violates the most fundamental rights of some of the most vulnerable people in our society.” Para 33 further observes that, “The State simply cannot fail to do its duty to provide a decent life to its citizens and add insult to injury by arresting, detaining and, if necessary, imprisoning such persons, who beg, in search for essentials of bare survival, which is even below sustenance. A person who is compelled to beg cannot be faulted for such actions in these circumstances. Any legislation, penalizing the people, therefore, is in the teeth of Article 21 of the Constitution of India.”
Conclusions
In essence, para 40 of this landmark judgment says that, “When, in the backdrop of the above discussion, we examine holistically, the provisions of the Act, we find that, while most of the provisions contained therein directly deal with begging, treating it as an offence, or other provisions ancillary thereto, there are certain provisions which do not treat beggary per se as an offence and which therefore, may not be hit by the vice of unconstitutionality.” Para 41 further stipulates that, “We are, therefore, spared the necessity of striking down the entire Act, wholesale. The provisions which treat beggary/begging as an offence, committed by the beggar, or are ancillary thereto, would be Sections 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29.”
Moving ahead, para 42 observes that, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence. These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.” The next para 43 further says that, “The remaining provisions of the Act, which do not directly or indirectly criminalize begging, or relate to the “offence” of begging, such as Section 11 (which deals with penalty for employing or causing persons to solicit or receive alms, or using such persons as exhibits), Section 30 (which deals with seizure and disposal of animals exposed or exhibited for obtaining or extorting alms), and other provisions which deal with the nature of offences under the Act, appeals, the power to frame rules and removal of difficulties, would not be required to be struck down and are, therefore, maintained.”
Result
Finally and most importantly, we now deal with what the Delhi High Court gave in its result. In para 44, it held that, “In the result, we declare Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Bombay Prevention of Begging Act, 1959, as extended to Delhi, as unconstitutional and strike down the said provisions.” In para 45, it held that, “The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down. The power to do so would, however, appropriately vest in the Courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgment, and our observations and findings contained therein.” In para 46, it also held that, “The state is always at liberty to bring in alternative legislation to curb any racket of forced begging after undertaking an empirical examination on the sociological and economic aspects of the matter.” Last but not the least, para 47 winds up by noting that, “Before parting with the case, we are reminded of the words of Krishna Iyer, J in the pronouncement reported at AIR 1981 SC 674 Gopalanachari v State of Kerala when he said that, “…If men can be whisked away by the police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, Article 21, read with Articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation. Law is not a mascot but a defender of the faith. Surely, if law behaves lawlessly, social justice becomes a judicial hoax.”
In the ultimate analysis, it is a landmark judgment which will ensure that beggars don’t land up in jail just because of begging. It is one of the finest judgment which must be read by every literate person! It will certainly not tantamount to an exaggeration from any angle to say that it is worthy of being emulated by all courts from top to bottom!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
It has to be stated before anything else that in a landmark judgment which is being considered as a huge blow to the AAP Government in Delhi, the Delhi High Court in its landmark judgment titled Federation of Okhla Industrial Association (Regd) v Lt Governor of Delhi and anr in W.P.(C) 8125/2016 & CM No. 3362/2016 reserved on 22 May and delivered finally on 4 August, 2018, quashed its much-touted March 2017 order revising the minimum wages for all classes of workmen in scheduled employment, opining clearly and categorically that the same was ultra vires Article 14 of the Constitution of India. The Bench of Delhi High Court comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar further opined that the impugned notification suffered from “non-application of mind”, was not based on any material and violated principles of natural justice. So it was but natural that it had to be quashed!
Truth be told, the Bench also declared explicitly that the constitution of the Minimum Wages Advisory Committee for all scheduled employments by the Government as ultra vires Sections 5(1) and 9 of the Minimum Wages Act, 1948, opining that the formation of this Committee was “completely flawed”. It should not have been set up at the first place! This Delhi High Court’s latest landmark judgment was issued primarily as a culmination of the petitions that were filed by employers – associations of traders, petrol dealers and restaurants – who had challenged the two notifications – one that was issued in September 2016 reconstituting the Minimum Wages Advisory Committee for all scheduled employments, and another issued in March 2017, revising the minimum rates of wages for all classes of workmen/employees in all scheduled employments.
Be it noted, para 2 of this landmark judgment states that, “An attempt to constitute a Minimum Wage Advisory Committee by an order dated 12th April, 2016, had already disrupted the course of wage revision once. Alas, even though the revision is sorely needed, the hurried attempt again, inter alia failing to comport with binding the statutory requirements, without relevant material and contravening principles of Natural Justice has unfortunately disrupted this course, yet again.” There can be no denying it!
Going forward, para 3 further goes on to say that, “This batch of writ petitions, lays a challenge to the constitutionality of the Notification bearing no. F-13(16)/MW/1/2008/Lab/1859 dated 15th September, 2016 issued by the Lt. Governor of Delhi in exercise of powers conferred by Section 5(1) of the Minimum Wages Act, 1948 (hereafter referred to as ‘the Act’). By this notification, the respondents re-constituted the Minimum Wages Advisory Committee for all scheduled employments.” Para 4 further reveals that, “These petitions also challenge the constitutional validity of the Notification bearing no. F. Addl.LC/Lab/MW/2016 dated 3rd of March 2017 published in the Official Gazette on 4th March, 2017, again issued by the respondents, in exercise of power conferred by Section 5(2) of the enactment. By this Notification, minimum rates of wages for all classes of workmen/employees in all scheduled employments stand revised w.e.f. the date of the notification in the official gazette. The challenge rests, inter alia, on the plea of the petitioners that both these notifications are ultra vires the provisions of the enactment itself and that the respondents also violated the principles in issuance of the notifications.”
Hurried Actions Of The Government
It cannot be lost on us that this landmark judgment authored by Acting Chief Justice of Delhi High Court Gita Mittal begins by first and foremost quoting Lewis Caroll from Alice in Wonderland that, “The hurrier I go, the behinder I get” to assert emphatically that the quote “appropriately manifests the manner in which the hurried actions of the respondents would set back the entire workforce of the city.” It then goes on to note that while an attempt to revise wages was in fact “sorely needed”, the hurried attempt, without adherence to binding statutory requirements, without relevant material and in violation of principles of natural justice, disrupted the entire exercise.”
Crux of the Judgment
It would be in the fitness of things to now shell out the crux of this entire landmark judgment which will make the whole picture very clear as to what it implies. In other words, it can be safely said that it is the summary of the conclusions that Delhi High Court Bench held bare so explicitly. The key points as laid down in the concluding part of this landmark judgment are as follows: -
1. The High Court under Article 226 of the Constitution of India can interfere with a notification fixing minimum wages only on “the most substantial grounds”.
2. The purport and object of the Act in fixing the minimum wage rate is clearly to prevent exploitation of labour. The hardship caused to individual employers or their inability to meet the burden of minimum wages or its upward revision, has no relevance.
3. The object, intendment and provisions of the Minimum wages Act, 1948 are clear and unambiguous, and therefore, the applicability of the beneficent rule of interpretation is completely unnecessary.
4. Minimum wages have to be more than wages at the subsistence level, have to take into consideration all relevant factors and prescriptions made after due application of mind and must take into consideration the norms and component as approved by the Supreme Court in the Reptakos judgment.
5. The Supreme Court has rejected challenges to the constitutionality of the Minimum Wages Act, 1948 for the reason that the legislation has ensured the mechanism provided under Section 5, 7 and 9 of the enactment. This places the requirement of compliance with the provisions thereunder on an extremely high pedestal and they had to be strictly adhered to by the respondents.
6. The appropriate government is required to take into account the report and advice rendered by the Committee/Advisory Board and to apply independent mind and take a balanced decision so far as fixation or revision of minimum wages is concerned. The Government is not bound by the recommendations of the Committee. It is open to the Government to accept (wholly or in part) or to reject the advice of the Board or report of the Committee.
7. While there is no absolute prohibition on an employee of the Government being nominated as an independent member of the Committee under Section 5 of the Minimum Wages Act, an objection to such nomination has to be decided on the facts and circumstances of the case. It is only when minimum wages are under consideration for an industry in which the State may be vitally interested as an employer, that it may not be proper to nominate an official to the Committee treating him to be an independent member.
8. A defect in composition of the Committee under Section 5 would not per se vitiate either its advice or the decision taken thereon. A defect in the composition of the Committee would vitiate its advice, or the ultimate decision of the Government fixing the minimum wages, only if such illegality or defect has worked to the prejudice to a party, for example where the interest of a particular group of employer or employees has not been represented or has not been taken into consideration.
9. The Delhi Metro Rail Corporation is not an employer engaged in scheduled employment in Delhi and it could not have been appointed on the Committee under Section 5 as a representative of the employer.
10. Though the eligibility of the officers of the Labour Department or the Director of Economics & Statistics as members of the Committee cannot be faulted, however they failed to conduct themselves dispassionately and did not apply their independent minds. The respondent has appointed the very officials as independent persons on a Committee, which had already taken a view in the matter and made recommendations as members of a Committee in the year 2016, therefore, when appointed for the second time, they were clearly close-minded and proceeded in the matter in a predetermined manner.
11. The respondents have denied the statutorily mandated representation to the actual employers in scheduled employments in Delhi which tantamount to non-compliance of Section 9 of the Minimum Wages Act, 1948 and failure on the part of the respondents to constitute a Committee required by law to be constituted.
12. It is essential that under Section 5(1) of the MW Act, a Committee “properly constituted” is “genuinely invited” with an open (‘receptive’) mind to tender advice to the appropriate Government.
13. It has to be held that employers in the scheduled employments as well as employees with divergent views stand ousted from the consideration and their interests certainly compromised to their prejudice. This prejudice to the employers and employees would constitute a ‘most’ substantial ground (Ref : (2008) 5 SCC 428 (para 14), Manipal Academy of Higher Education vs. Provident Fund Commissioner) justifying interference by this court in exercise of jurisdiction under Article 226.
14. Clearly the Government of NCT of Delhi was aware of the requirement of law and consciously failed to comport to the same.
15. It is not open to a representative to insist on an oral hearing before the Committee appointed under Section 5 or the Advisory Board under Section 7 of the Minimum Wages Act, 1948.
16. The fixation of minimum wages in Delhi cannot be faulted simply because they are higher than the rates of minimum wages fixed in surrounding States and Towns.
17. The Committee in making its recommendations, as well as the respondents in issuing the singular notification for uniform minimum wages for all scheduled employments, have completely ignored vital and critical aspects having material bearing on the issue.
18. Any change in the prescribed rates of minimum wages, is bound to impact both the industry and the workmen. The respondents were bound to meaningfully comply with the principles of natural justice especially, the principles of fair play and due process. The representatives of the employers, had a legitimate expectation of being heard as the advice of the Committee was to inevitably affect them, which has been denied to them before the decision to revise minimum wages was finalized.
19. The constitution of the Committee was completely flawed and its advice was not based on relevant material and suffers from non-application of mind. The Government decision based on such advice is in violation of express statutory provision, principles of natural justice, denied fair representation to the employers as well as the employees in fact without any effort even to gather relevant material and information.
20. The non-application of mind by the committee and the respondents, to the relevant material considerations, offends Article 14 of the Constitution of India.
Having said this, it must be now stated that in para 365 of this landmark judgment, it is pointed out that, “The Notification bearing no. F-13(16)/MW/1/2008/Lab/1859 dated 15th September, 2016 issued by the respondents constituting the Minimum Wages Advisory Committee for all scheduled employments is ultra vires Section 5(1) and Section 9 of the Minimum Wages Act, 1948 and is hereby declared invalid and quashed.”
Furthermore, in para 366, it is pointed out that, “The Notification bearing no. F. Addl. LC/Lab/MW/2016 dated 3rd of March 2017 issued by the respondents revising minimum rates of wages for all classes of workmen/employees in all scheduled employments is ultra vires Article 14 of the Constitution of India; of Section 3 & Section 5(2) of the Minimum Wages Act, 1948, of Rule 20 of the Minimum Wages (Central) Rules; appears from non-application of mind, is based on no material and is in contravention of principles of Natural Justice and is hereby declared invalid and quashed.” Also, para 368 says that, “The applications are disposed of as having been rendered infructuous.” Finally para 369 concludes the judgment by saying that, “No order as to costs.”
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
Coming straight to the core issue, it has to be noted right at the outset that in a landmark judgment delivered on July 6, 2018 with far reaching consequences, the Uttarakhand High Court in Chandra Shekhar Joshi v State of Uttarakhand & others in Writ Petition (PIL) No. 71 of 2015 recently issued a slew of commendable directions for improving the functioning of Government Medical College, Haldwani and its associate hospitals. The Court was hearing a petition filed by one Chandra Shekhar Joshi who had highlighted the lack of basic facilities at the Government Medical College, Haldwani and its associate hospitals, Dr Sushila Tewari Memorial Hospital and Swami Rama Cancer Hospital and Research Centre. It is the “poorest of poor” who cannot afford to go to private hospitals who have to suffer the most which cannot be condoned under any circumstances!
As it turned out, on the oral application of petitioner, the Medical Council of India is added as respondent no. 6 in the petition. Para 3 of this landmark judgment brings out that, “According to the averments made in the petition, the institution is plagued with absenteeism. The poor patients are not getting specialized treatment. Number of posts are lying vacant. Patients are not getting the medicines from the hospital. There is a tendency among the doctors to refer the patients to other hospitals.” This is most deplorable and depreciable! Why should patients be referred to other hospitals and not treated there only?
To be sure, it is rightly highlighted in para 4 of this landmark judgment that the hospital does not fall under the administrative control of the Department of Medical Health & Family Welfare, Govt. of Uttarakhand. It falls under the control of the Department of Medical Education. For this reason, free medicines cannot be provided.
Truth be told, para 5 points out that, “A startling revelation has been made that Swami Rama Cancer Hospital & Research Institute currently has the Department of Radiotherapy only. Here, the conventional radiotherapy is delivered and also Brachytherapy is done. Simple forms of chemotherapy are often performed but complex form of chemotherapy is not feasible due to lack of medical oncology department. There is no Surgical Oncology Department yet. The Department of General Surgery and ENT often perform cancer surgeries when possible. The Departments of Medical Oncology, Surgical Oncology are due to be brought in when the institute is upgraded to State Cancer Institute. There are no Neurology, Gastrology, Nephrology, Urology or Cardiology Departments in the hospital. There is no independent Cardiology Department.”
Going forward, in para 8, it is rightly brought out that, “Government Medical College, Haldwani (formerly known as U.K. Forest Hospital Trust Medical College) is only medical college in Haldwani, Uttarakhand, India. It was established in 1997. The Government Medical College, Haldwani is the first post graduate college in Uttarakhand, recognized by the Medical Council of India and the Government of India. The Govt. Medical College Haldwani has two hospitals associated with it – Dr Sushila Tiwari Memorial Hospital and Swami Rama Cancer Hospital & Research Center. Swami Rama Cancer Hospital & Research Center was inaugurated on 22nd February, 2010. However, there is only one Department which is functional i.e. Radiotherapy. The lack of oncological disciplines of medical oncology, surgical oncology, haematological oncology, gynaecological oncology & pediatric oncology is acutely affecting the population of the state at present.”
Needless to say, para 12 of this landmark judgment further brings out that, “There are no facilities like Neo-adjuvent, and Adjuvent for Cancer patients. Swami Rama Cancer Hospital & Research Institute has been established in the year 2010 but till date, the Oncology Department is not in existence. There is no Medical Oncologist, Surgical Oncologist, Gynecological Oncologist or Pediatric Oncologist in the medical college. Swami Rama Cancer Hospital & Research Institute is functional since 22.2.2010 and it is shocking that till date, no Specialists have been appointed except the opening of Department of Radiotherapy. Swami Rama Cancer Hospital & Research Center has virtually become defunct in absence of specialists.”
Let me hasten to add here that in para 13, it was explicitly held that, “The time has come when the State Government should accord Swami Rama Cancer Hospital & Research Institute as the State Cancer Institute by providing it the latest state of art equipment including Positron Emission Tomography (PET), Magnetic Resonance Imaging (MRI), Computed Tomography (CT) Scan and Specialists namely medical Oncologists, Surgical Oncologists, Hematological Oncologists, Gynecological Oncologists and Pediatric Oncologists at the earliest. The facilities provided to the Cancer Hospital in a big building are confined only to the Concurrent and Palliative Chemotherapy. The posts in Clinical and Non-Clinical Branches are lying vacant. There are no details of the persons who applied and were selected pursuant to the advertisement issued by the Medical College. The posts are required to be filled up of Teaching as well as Non-Teaching Staff in all the Departments as per the Minimum Standard Requirements for the Medical College for 100 Admissions Annually Regulations, 1999. The Equipment is to be provided as per Schedule III of the Regulations at the earliest.”
Furthermore, it is underscored in para 14 that, “The poorest of poor patients visit the medical college. They have a fundamental right to be treated by the Specialists. It is the duty cast upon the State Government to provide free medicines/drugs to the poorest of poor.” On similar lines, in para 27, the Bench of Justices Rajiv Sharma and Lok Pal Singh asserted vocally that, “Every citizen has a fundamental right to health. The State has the obligation to provide best medical services to its citizens. The poorest of poor cannot go to the private hospitals. Since the latest equipment is not available with the respondent – Medical College, the parents are referred to other hospitals including private hospitals.”
While clearly and convincingly exposing the shortcomings, this landmark judgment in para 24 points out that, “A startling revelation has been made that 4 posts of Professors, 4 posts of Associate Professor/Reader, 1 post of Medical Superintendent, 1 post of Dean are lying vacant in the medical college. 29 posts of Tutor/Registrar/Sr. Resident and 68 posts of Junior Resident and 1 post of Deputy Librarian are lying vacant. In total, 129 posts in this category are lying vacant.” Para 25 goes on to further point out that, “There are 310 sanctioned posts of Staff Nurse out of which 142 have been filled up on regular basis and 64 posts have been filled up through UPNL. Nursing is the backbone of any medical institute. In all, 104 posts of Staff Nurse are lying vacant.” It is also conceded in para 26 that, “Now as far as the technical staff is concerned, 380 posts are lying vacant. These posts are required to be filled up on emergent basis. The hospitals cannot be left sick.”
Bluntly put, para 28 observes astonishingly that, “It is surprising to note that the Medical College has no Department of Neurology, Gastrology, Nephrology, Urology or Cardiology. These Departments are essential for public health. The State Government is required to take immediate steps for creation of these Departments in the Govt. Medical College, Haldwani at the earliest. The surgeries of the cancer patients are required to be undertaken only by the Oncologists/Medical Surgeons from their respective branches.” As if this is not enough, it is further observed in para 29 that, “A startling revelation has been made in the daily edition of ‘The Pioneer’ dated 3rd July, 2018 that 61 Ambulances are lying idle in the compound of office of Director General (Health). The ambulances are required to be refurbished immediately to make them functional. Ambulances which have completed their maximum mileage are required to be replaced.”
To top it all, para 30 further observes that, “It has also come into light that there is also acute shortage of doctors in Kumaon Division as per the daily edition of ‘Amar Ujala’ dated 3rdJuly, 2018. There is shortage of 267 doctors in Kumaon Region. The total posts sanctioned are 981 out of which only 714 doctors are working and 267 posts are lying vacant.” Worst of all, para 31 laments that, “There is no Trauma Center in the Medical College. The Trauma Center is required for the simple reason that due to the terrain and geographical conditions of the State, the fatal accidents do occur wherein the passengers receive serious injuries. They are required to be operated upon immediately by the Neurosurgeons. The Trauma Center is a must in every Medical College.”
Needless to say, para 32 makes a scathing attack for not spending enough on purchasing the latest equipments. It says that, “Petitioner has also placed on record the details of the budgetary provision. A sum of Rs 23.00 crores was spent for the construction of Swami Rama Cancer Hospital & Research Center. The system cannot permit non-utilization/under utilization of building constructed at the cost of Rs 23.00 crores. The amount is contributed by the tax payers. The system is accountable for every pie spent by the government. Budgetary provisions are available for the medical college but still the latest equipment is not purchased for the reasons best known to the management of the Medical College.”
Finally and most importantly, para 33 which is the concluding part of the judgment concludes by saying that, “Accordingly, the present petition is disposed of by issuing the following mandatory directions: -
A. The respondent-State is directed to make Swami Rama Cancer Hospital & Research Institute fully functional by creating the posts of Medical Oncologists, Surgical Oncologists, Hematological Oncologists, Gynecological Oncologists and Paediatric Oncologists within three months from today by holding the walk-in interviews. The State is also directed to upgrade the status of Swami Rama Cancer Hospital & Research Institute to the State Cancer Institute within three months. The State is also directed to give incentives to the specialists to join premier institution in the State of Uttarakhand by giving them at least 15 advance increments, suitable accommodation and conveyance befitting their status.
B. Since Swami Rama Cancer Hospital & Research Institute is the constituent hospital of Medical College, the State Government is directed to provide the latest state of art equipments/machinery required under the Minimum Standard Requirements of the Medical College for 100 Admissions Annually Regulations, 1999 for training and teaching of the MBBS and MD/MS students within two months.
C. The respondent-State is directed to establish the Nephrology, Neurology, Urology and Cardiology Departments in the Medical College within three months. Thereafter, the posts shall be filled up within a further period of three months by holding the walk-in interviews.
D. The State Government is directed to establish the Trauma Center in Government Medical College, Haldwani and make it functional within three months from today as per the standard procedure.
E. The State Government is directed to fill up all the posts of teaching staff as well as non-teaching staff, lying vacant in the Medical College, within three months from today to provide quality treatment to the patients. The first preference shall be given to the teaching faculty including clinical and thereafter to non-clinical and nursing.
F. The State Government is directed to deploy 61 newly acquired ambulances after refurbishing them within one month from today.
G. The State Government is directed to fill up all the vacancies of Medical Officers in Kumaon Division within four months from today.
H. The State Government is directed to install the MRI/PET, Mammography and other states of art equipment for treatment of patients and training and teaching of MBBS and MD/MS students within three months from today.
I. The State Government is directed to provide essential life-saving drugs/medicines to the patients free-of-cost.
J. The Principal of the Medical College is directed to ensure absolute hygiene in the hospital and if necessary, by outsourcing the same.
K. The State Government may consider constructing Inns/Sarays for the attendants of patients in the close vicinity of the hospital.
L. The Medical Council of India shall carry out the inspection of the Medical College immediately after six months to ensure that all the parameters laid down by it are followed in letter and spirit by the respondent- Medical College failing which it shall be open to the MCI to take action, as envisaged under law, against the Medical College for non-fulfilling the minimum standards.”
All said and done, it is a landmark judgment and its mandatory and laudable directions must be implemented in letter and spirit in totality. It will go a long way in ensuring that the poorest of poor who cannot afford to go to private hospitals get proper treatment for cancer. It is India which tops in world with maximum death from cancer at 2.2 million per year.
To be sure, health spending has pushed 55 million Indians into poverty in a year as was published in ‘The Times of India’ on June 13, 2018. Cancer has the highest probability of resulting in ‘catastrophic expenditure’ for a household. But it can be checked if the landmark directives laid down in this landmark judgment are implemented in totality. It will also go a long way in ensuring that the Medical Colleges function as per the directives laid down. Not just this, it will also certainly go a long way in improving the functioning of Government Medical College and Associate Hospitals which is the crying need of the hour!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh
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