To begin with, it needs no rocket scientist to conclude that the reprehensible practice of instant triple talaq is just a step away from becoming a punishable offence after the Lok Sabha on December 28 passed this historic Bill by voice vote. The Bill expressly stipulates a jail sentence of up to three years for the guilty husband. The Bill draft says that, “Any pronouncement of talaq by a person upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever shall be void and illegal.” The Bill makes the declaration of instant triple talaq a cognizable and non-bailable offence. Without a doubt, the Centre by making instant triple talaq or talaq-e-biddat a punishable offence has given a big boon to all those Muslim women who get adversely affected by it and suffer for no fault of theirs!
                                           But the endless woes of women just don’t end by this only! Polygamy or permission given under Muslim man to marry up to 4 wives is another much abused provision wherein it is the woman who is the worst sufferer. As if this is not enough, there is Nikah Halala also whereby if a Muslim man gives divorce to his wife and wants to marry him again then that Muslim woman is supposed to marry some other man, get divorce from him and then again marry her former husband!
                                        Can on earth there be anything more atrocious than this? Still it is valid in India since last 70 years and has continued unabated, unpunished and unchecked! Arif Mohammad Khan who was Union minister in former PM late Rajiv Gandhi’s Cabinet has been most vocal in demanding the abolition of not just instant triple talaq but also nikah halala and polygamy but he had to leave the Cabinet as his voice was not heard on this and he was overruled! Centre must now act on these two evils also just like Nehruji very rightly banned Hindus from marrying more than once even though Lord Krishna had 16,108 wives, Shivaji too had many wives and it was very common for Hindus to marry as many as they liked with no one to stop them from marrying them as many times as they wanted! Hindus should never forget Nehruji for this great favour that he did to them because of which the population also has come under control and now similarly Modiji should also have the guts like Nehruji to do a favour on Muslims also by similarly abolishing these reprehensible practices which are retrograde and violate the dignity of woman in the most rash manner! No doubt, a good beginning has been made in this direction!
                                          It is imperative to mention here that the Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill by voice vote after rejecting a string of amendments moved by opposition members. The Congress said it supported the Bill but wanted it to be scrutinized by the Standing Committee of Parliament but this demand was rejected by the Chair. MPs from the RJD, AIMIM, BJD, AIADMK and All India Muslim League opposed the Bill and called it arbitrary in nature and a faulty proposal. Eminent Union Minister MJ Akbar who is himself a Muslim said that, “The law will give a big blow to those who want to keep women under the constant ‘fear and terror’ in the name of talaq”.
                                        It must be mentioned here that the Union Law Minister Ravi Shankar Prasad had invoked the Shah Bano case at the BJP’s Parliamentary Party meeting on December 28 and had said that unlike Rajiv Gandhi, Prime Minister Narendra Modi would not bow down on triple talaq. He briefed the BJP MPs of the triple talaq legislation. He said that, “Rajiv Gandhi bowed down to the lobbies and left Shah Bano mid-way. Our PM will not let any injustice done to Muslim women.” What Prasad has said is truly laudable but I will again reiterate that it must now outlaw nikah halala also and polygamy also because such derogatory practices cannot be justified under any circumstances!
                                                 Let me mince no words in saying this most directly: If polygamy is banned even among Muslims, the dangerous trend of Hindus and people from other religions converting to Muslims just for getting their second marriage validated would be checked hundred percent! Thus two birds will be killed with one stone! The dangerous menace of “Love Jihad” can also be effectively checked by this!
                                               But the moot question here is: Will Centre show the requisite courage to act in this direction by acting similarly as it has done in the case of instant talaq or will it succumb in front of those who are big leaders but who never want the Muslim woman to truly become independent which alone explain why they oppose tooth and nail any type of changes in Muslim laws and this includes derogatory practices also like nikah halala and polygamy? Only time will tell! But I am still optimistic that Centre would place national interests first and take the right decision accordingly! Banning polygamy will not just check exploitation of women, conversion of people from their own religion to Islam just for marrying more wives than one but will also go a lot ahead in checking the population of our country which right now is growing by leaps and bounds and it is widely anticipated that if we go by this rate we would soon leave even China behind in next few years to become the world’s most populated country!
                                           To put things in perspective, while calling it a historic step, Union Law Minister Ravi Shankar Prasad said the Bill – The Muslim Women (Protection of Rights on Marriage) Bill 2017 – will act as a deterrent since there have been 100 cases of triple talaq even after the landmark judgment of the Supreme Court delivered in August this year. We all know that in the landmark case of Shayara Bano v Union of India, the Supreme Court has outlawed instant triple talaq and very rightly so! Who can question this?
                                           Going forward, Prasad made it a point to further mention that while 22 Islamic countries, including Pakistan and Bangladesh have regulated instant triple talaq, there was no effective law in India. He further went on to say that, “The Muslim Women (Protection of Rights on Marriage) Bill seeks to ensure the larger constitutional goals of gender justice and gender equality of married Muslim women and help sub-serve their fundamental rights of non-discrimination and empowerment.” Very rightly said!
                                It must be mentioned here that Clause 3 stipulates that instant triple talaq in any form shall be void and illegal. Clause 4 mentions that husband giving triple talaq to serve a jail term of up to three years and pay fine. A Sampath of CPM asked that, “Why is there no mention of the maximum quantum of fine in the Bill?” This is because the Judge has then the discretion to impose fine seeing the financial condition of Muslim men! Clause 5 envisages that the married Muslim woman shall be entitled to alimony. Sushmita Dev of Congress on this asked that, “Who will give the maintenance if the husband goes to jail?” All these questions must be addressed before it is finally made a law! The amount of the allowance will be decided by a first class Magistrate.
                                            Shaista Amber who is All India Muslim Woman Personal Law Board President hailed the judgment saying that, “I thank Allah, the government, the Supreme Court, Law Commission and all MPs”. Taking a dig at those opposing the Bill, Shaista questioned that, “What had they done for our rights?” Shayara Bano who led the sacred fight to ban instant triple talaq too expressed happiness but added a rider that, “After triple talaq, even other practices such as polygamy and nikah halala should be banned in our society. The way in which women are tortured in the name of these ill-practices should be stopped”.
                                            Shayara Bano also reiterated that, “I will once again file a petition to ban polygamy and nikah halala in  the top court. I will continue my fight against ill-practices among the Muslim community. These types of practices should be abolished from the Indian society for the development of our country.” After she filed the petition against instant triple talaq, it must be mentioned that thousands of Muslim women across the country came together demanding that triple talaq be abolished. Shayara has shown that any person can change the system if there is determination and will power to do so even if he/she comes from an ordinary family with a humble background! Kudos to her as she deserves all the laurels for prompting even the Supreme Court and Centre to act positively in this regard!
                                                   Eminent jurist and former Attorney General Soli J Sorabjee very rightly appealed not to bring religion into the triple talaq Bill. He elegantly said that, “It’s a very good move that requires legislation. Don’t bring religion into it as the whole thrust of the legislation is to ensure gender equality and to see women are not treated in an arbitrary manner.” He also said that the Bill was being opposed for the vested interests.
                                           He further added that the legislation would ensure gender equality. All of us must firmly believe in what Sorabjee has said and seriously adhere to what he has said as he is one of the brightest gem and jurist that India has known and has mentored even many other eminent jurists like Harish Salve who worked with him from 1980 to 1986! It is certainly a revolutionary step in the right direction but still all efforts must be made to cure it of all shortcomings before it is finally made into a law!
                                             Hope and pray earnestly that it is soon also cleared by the Rajya Sabha and made into a law so that Muslim women can be saved from this worst curse which in one second destroys her whole life with no way left for her to go! It is high time and now all efforts must be made to outlaw even other derogatory practices like nikah halala and polygamy as demanded by Shayara Bano, Arif Mohammad Khan and others which must be immediately thrown out into the dustbin of history by repealing it once and for all!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh
0
Coming straight to the crux of the matter, let me begin at the beginning itself by first and foremost pointing out that in what could be considered as a very great landmark step taken for the benefit of fresh law graduates who just step into the legal profession as a lawyer, the Puducherry government has announced a stipend of Rs 3,000 per month for junior advocates for a period of three years or till they start practicing independently, whichever is earlier. This shall certainly bring a big smile in the face of all those who stand to gain by this landmark step. It is a truly laudable step which has to be appreciated for giving young lawyers the stipend of Rs 3000 per month so that they don’t have to look to their parents for financial help and undoubtedly this shall boost their self-confidence to a big level!  
                                   It merits no reiteration that every government of every state must emulate what a Union Territory which is not even a state has chosen to do! This is a very small step that will certainly go a long way in attracting more and more bright students into the legal profession! There is no valid reason as to why all other State governments all over India should not emulate what Puducherry has done now for the benefit of junior advocates!
                                 While craving for the exclusive indulgence of my esteemed readers, let me inform them that an official communication which was sent by N Murugavel who is Undersecretary (Law) to the President of the Puducherry Bar Association said that the Chief Minister V Narayanasamy has allotted funds from the Chief Minister’s relief fund to cover the stipend. When such a small Union Territory can take such a landmark step by which so many junior advocates will benefit then why can’t bigger states who have much more money in their purse can’t allocate just Rs 3,000 per individual like Puducherry if not more so that more and more brighter talent is attracted to the legal profession and the junior lawyers don’t have to pinch their hands even to meet their daily expenses? It is high time and now bigger states too must follow the worthy footsteps of Puducherry and act in the supreme interests of junior advocates!
                                           It must not be lost on all states that in a first Puducherry has taken a very bold and landmark decision of giving junior advocates Rs 3,000 per month stipend! They too must not themselves lag behind and waste no time to do what Puducherry has done in this regard! There is no harm in doing or rather imitating other if that thing which has been done is laudable and worthy enough to be followed by others!
                                          It has to be conceded with grace that what the Chief Minister of a Union Territory – V Narayanasamy has done must be emulated by Chief Ministers of not just Union Territory or small states alone but also equally by bigger states as it is a very courageous decision which is bound to benefit many young and junior advocates who have just stepped into the legal profession and especially those who come from a weak financial background! I would rather go one step ahead and say that even those who come from good financial background would also feel more confident and happy if they get Rs 3000 per month stipend and this will imbue them further to work more harder to earn more and become independent in financial terms which is bound to groom their overall personality and make them more self-reliant! There can be no denying or disputing it!   
                                      For my esteemed readers exclusive indulgence, let me also inform them that the Puducherry government has also very rightly prescribed the eligibility criteria for getting the stipend. Those junior advocates who regularly attend free legal aid camps organized by the Legal Services Authority of the Union Territory of Puducherry and conduct the cases allotted to them by the legal aid committee and respective courts will be eligible to apply for the stipend. All other States must also emulate the most worthy example of Puducherry in this regard!
                                       To put things in perspective, there are other terms and conditions also that have been laid down which include assisting the courts as a researcher, attending the chamber of senior advocates with whom they are attached, obtaining regular service certificates every three months from the President or Secretary of the Puducherry Bar Association and assisting the government pleader or public prosecutor or others at least! These are all valid and rational conditions which shall go a long way in making a fresher and junior advocate more experienced and more capable to deal with the complex court situations which arises from case to case! So they cannot be questioned nor can their utility be questioned!    
                                         It must be highlighted here that while speaking to reporters, the Chief Minister V Narayanasamy said there was a plea from the Puducherry State Bar Association that young lawyers entering the profession be paid monthly assistance. He said that, “Conceding the plea, the government has now evolved a scheme to provide Rs 3000 every month for young advocates. This assistance would be available to the new entrants for a period of three years to start with.” He also made it clear that, “The assistance is to enable the young lawyers to stabilize themselves in the profession.” He further added that initially the government would earmark from the Chief Minister’s Relief Fund, a sum of Rs 9 lakhs to the Welfare Fund of advocates here.
                                          All said and done, what the Puducherry government has done under the able stewardship of Chief Minister V Narayanasamy is truly laudable. He has taken a very bold initiative which must be truly applauded by one and all! It must be emulated by every State Government and Union Territories all across the country.
                                         Needless to say, junior advocates are also young officers of the court and to pay them so much that they don’t have to depend on others is imperative!  It is unquestionable that this is what the Puducherry government led by Chief Minister V Narayanasamy has done so rightly! Who can deny this?
                                         It is a truly laudable step in the right direction to make them self-reliant especially in their initial years! This would make sure that young advocates are inspired to give in their very best to the profession right from day one without worrying much from the financial angle in the initial few years. They will be better trained as compared to those who don’t get anything and therefore lose interest in the legal profession of advocacy right from their formative years and thus get diverted into other professions! Who can deny this?
                                                 I have seen for myself that how not just lawyers in district courts and high courts but also in Supreme Court have shifted to other professions which includes teaching because there you immediately start getting good salary but in courts one has to wait for many years and still the earning is far below adequate! Who can deny this? I am ready to confront them!
                                          Even those lawyers who work with senior and eminent lawyers are hardly paid much except for a very few all across India and this explains why even young lawyers with exceptionally brilliant background but not having any relation in the legal profession tend to immediately shift to other fields like teaching etc or opt to appear in the judicial services exam and become a Judge where they start getting a decent salary very early in their life! This is a very dangerous trend that can never be good for the long term interests of judiciary and lawyering and must be checked immediately if the best talent is to be retained in the legal profession of lawyering and for this to happen it is imperative that the other Chief Ministers should also try and emulate what V Narayanasamy has attempted recently even though on a small scale which is truly laudable and worth emulating by all states and Union Territories!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 
0
In a major relief to thousands of undertrials, the Supreme Court on November 23, 2017 very rightly struck down a draconian provision which can deny a person bail even if there is reasonable ground to believe that he or she did not commit the offence of money laundering. We are living in a democratic country in which every person has the right to live a free life. The State has no right to deny any person the right to live a free life on the slightest pretext just on the suspicion of having committed the offence of money laundering.
                                              Noting that the history of bail practices traces back to the Magna Carta, the Apex Court declared the draconian Section 45(1) of the Prevention of Money Laundering Act (PMLA) of 2002 violative of the fundamental rights to equality, life and personal liberty guaranteed under the Constitution. How can then it be allowed to continue? This alone explains why Supreme Court has very rightly dumped the draconian Section 45(1) of the PMLA which arbitrarily denies bail without any reasonable grounds whatsoever! There can be no denying this!   
                                        While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Bench of Justices Rohinton Nariman and SK Kaul, in their judgment, passed a general direction to courts to take up thousands of cases of undertrials who have been languishing in prisons, unable to get bail, because they did not satisfy the twin conditions under Section 45(1) of the PMLA. By all accounts, this is a landmark order which will benefit thousands of undertrials who will thus be set free and live a normal live just like all others! It certainly deserves unqualified appreciation because if this order had not been passed, many undertrials especially those who are poor would have continued to languish in jail for a long time!
                                            For my esteemed readers exclusive indulgence, let me also inform them that a Bench of Justices RF Nariman and Sanjay Kishan Kaul held Section 45(1) arbitrary and unjust because it allowed a Judge to deny bail to an accused charged with an offence that is punishable with more than three years in prison. It was held that, “We declare Section 45(1) of the Prevention of Money Laundering Act, 2002, in so far as it imposes two further conditions for release on bail, to be unconstitutional as it violates Article 14 and 21 of the Constitution of India”. As per Section 45(1), an accused could get bail only after the public prosecutor is given an opportunity to oppose the application and if the court is satisfied that the person is neither guilty of the alleged offence nor likely to commit the crime again on his or her release. Secondly, the court should reasonably believe that he is not guilty of the “predicate” offence for which he received the laundered money as proceeds of the crime. The Apex Court set aside all orders by which bail to an accused was denied due to the twin conditions and directed that such cases be remanded back to the respective courts to be heard on merits.
                                        Going forward, let me also reveal here that “predicate” offences include a range of crimes from 26 different laws from waging war against the Government of India to offences under the Narcotic Drugs and Psychotropic Substances Act, the Indian Penal Code to Wildlife Protection Act, Prevention of Corruption Act, Child Labour Law, etc. The Modi government had stoutly defended the stringent conditions on the ground that it was an attempt by the Parliament to get back the black money siphoned off from the economy. But the Apex Court held explicitly that the law leads to “manifestly arbitrary and unjust results and, therefore, violates Articles 14 (right to equality) and 21 (right to liberty) of the Constitution.” Justice RF Nariman, who authored the verdict, said Section 45(1) was violative of Article 14.
                                       Truth be told, the Supreme Court’s landmark judgment came on a clutch of petitions challenging the validity of Section 45(1) of the Prevention of Money Laundering Act. It must be noted here that the petitioners in the case had moved the top court after they were denied bail following the twin conditions. The petitioners argued that they were wrongly denied bail.
                                         As it turned out, the Apex Court gave them the liberty to approach the trial court afresh and said their bail petitions should be heard and decided expeditiously thus bringing a fresh smile on their face. It must be recalled here that the Prevention of Money Laundering Act, 2002 was introduced to make money laundering an offence and to attach property involved in money laundering. It was aimed to adequately deal with the serious threat to the financial system of India.
                                        To put things in perspective, though the PMLA Act was passed by the Parliament in 2002, it was brought into force only in August 2005. Thus, in other words, it started functioning only from August 2005. It must be borne  in mind that the Scheduled offences defined in PMLA comprise various offences, including some under Indian Penal Code, anti-drug law, Explosive Substances Act, Arms Act, Wildlife (Protection) Act, Immoral Traffic (Prevention) Act, Prevention of Corruption Act and Antiquities and Arts Treasures Act.
                                             Be it noted, it was argued before the top court by the petitioners that the two conditions made grant of bail virtually impossible in money laundering cases. Also, to satisfy them the accused will have to disclose their defence at a point in time when they are unable to do so. On its part the government urged the top court not to strike down the provision but read it down to make it constitutional.
                                                     However, the government’s argument was not accepted by the top court, which rightly said the provision had no rational relation with the grant of bail for the offence of money laundering. The two-Judge Bench of Apex Court pointed out a glaring anomaly pertaining to the bail provisions. Such stringent conditions of bail being granted only if the court is convinced that the accused is not guilty are not applicable when someone applies for anticipatory bail to prevent being taken into custody for charges of money laundering and what is worse is that once arrested, his sliver of hope of his/her chances of getting bail shall stand banished!
                                 In hindsight, the Apex Court, while hearing a batch of petitions and appeals challenging the constitutional validity of Section 45 of PMLA termed it as a “drastic provision” which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. It also said that, “Before applying such a Section which makes ‘drastic inroads’ into the fundamental right of a personal liberty under Article 21, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime.” It further went on to say that, “Without any such compelling state interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature. Merely ‘reading down’ the two conditions would not get rid of the ‘vice of manifest arbitrariness and discrimination’.”
                                      Needless to say, the Apex Court also very rightly pointed to one of the anomalies in Section 45 and said that anticipatory bail could be granted to a person who is prosecuted for the offence of money laundering which may last throughout the trial of the case against him. It said if the person is arrested for the offence of money laundering, then in order to seek regular bail, Section 45 will apply, which was an anomalous situation. So it had to be set right which was done!
                                     So, on a concluding note, it can well be rightly said that this landmark judgment validates what once legendary and most learned Judge of Supreme Court of India – Justice VR Krishna Iyer once famously said in a case that, “Bail shall be the rule and jail shall be the exception”! It must be welcomed with both hands by one and all! It will certainly ensure that thousands of undertrials don’t keep languishing in jail just because of this draconian PMLA clause Section 45(1) which has rightly been dumped by the highest court of India and are able to lead a normal life just like all other countryfellows! There is no reason why this landmark judgment should be not appreciated in most grandiloquent terms!  
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
0
Let me begin at the very beginning by pointing out that while crossing swords with the judiciary, the government on November 25 questioned judicial activism and criticized the “trend” of courts appointing retired Judges to head Committees and wondered aloud how Judges would feel if other organs stepped in to do their job. The government certainly has a valid point. As for instance, we saw how the Supreme Court stepped in to decide whether it was correct to send back those thousands of Rohingyas refugees who had illegally crossed over to India following the persecution they faced in Myanmar.
                                            If Government feels that they are a potential threat to the national security and must be sent back that should be final. Judiciary must refrain from stepping in an area which exclusively belongs to the executive. We all know how our national security gets compromised as it had been in the past when we allowed crores of Bangladeshis to illegally stay back in India even after their country got independence from Pakistan! Why should India allow Rohingyas to go and settle in Jammu and Kashmir from where Kashmiri Hindus and those Indian Muslims sympathetic to them were forcibly evicted and compelled to live as refugees in their own country! Why no voice is raised for them? Do they don’t have human rights?
                                       Why is it being treated so casually that Rohingyas entering India and being transported not to some other state close to Myanmar so that they can be deported easily when things calm down but to such sensitive places like Jammu and Kashmir which is directly attacked by Pakistan time and again which can never be good for the national security? Why should Supreme Court even think about allowing them to stay there after PIL is filed in their favour? How can human rights of foreigners who have nothing to do with India be bigger than our paramount national interests? How can it be ignored that many Rohingyas had killed about 100 Hindus and burnt their houses before fleeing to India and have links with dreaded terror organizations like Lashkar-e-Taiba? How can Hafiz Saeed’s open call to Rohingyas to kill Indians be ignored while they are in India?
                                             To put things in perspective, while leading the charge was Union Finance Minister Arun Jaitley, who, addressing a session at the National Law Day function said that, “I have often heard an argument that judicial activism is born out of a phenomenon that other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power…by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears were pending, judges are not doing their job. So must somebody step in and now exercise that power? The answer is no…And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost. Once it is lost, there is no limitation on which area it will go into.”
                                               What Arun Jaitley has said must be treated with utmost respect because he is not just any other Minister or Finance Minister who in the past has also handled Law Ministry but he was also one of the most revered senior lawyer of Supreme Court who even represented Central Government on many occasions till a few years back before ultimately plunging himself fully into politics and becoming a Minister! He thinks a lot before speaking anything and is not the sort of person who would say anything just to remain in news! This alone explains why Centre has very rightly handed him the key Finance portfolio and even the Defence portfolio has also been handled by him apart from Law!    
                                         Be it noted, the session, titled ‘Judicial Review and Parliamentary Democracy – Balancing the Separation of Powers’, was organized by the Law Commission of India and Niti Aayog. Calling for caution while exercising judicial review, Jaitley said, “While exercising the power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise either legislative or judicial power. Parliament is not trained or really an institution to exercise judicial power. Judiciary is similarly not trained nor does it have that administrative maturity of exercising legislative power. In fact, if judiciary gets into the process of exercising executive or legislative power, directly or implicitly, the very institution of judicial review itself will suffer.” Judiciary must always bear this in mind what Jaitley has said!
                       It also must be borne in mind that Jaitley went on to talk of the “latest trend” of courts appointing “retired judges” to various committees to discharge executive functions. He said that, “Also this…new trend…alright, I don’t exercise the power myself (but) I will appoint my nominee to exercise the executive power, the nominees may be equally unsuitable to exercise the executive power because they have not been trained. Retired judges have been trained to write judgments…not to run sports organisations…Therefore this temptation of taking over executive power and exercising it yourself or through your nominees clearly violates the Lakshman Rekha (of separation of powers).”
                                     The moot question that arises here is: Why when judiciary exercises so much restraint that it has never till date ever ordered the creation of a single bench of high court in any part of India even though it is a judicial function and it understands the implications fully well of creating a bench in far off places due to which people have to face so many unnecessary inconveniences , it has never so ordered and always left it to the government to decide! The people of Uttarakhand from 1947 to 2000 till it became a separate state had to travel thousands of kilometers all the way to Allahabad to attend court hearings as there was no bench there but only one single bench had been created way back on July 1 in 1948 for such a big state like UP and that too in Lucknow which is just about 150 km away from Allahabad but Supreme Court never stepped in to save people from the huge inconvenience of travelling so far to Allahabad! Even now people of West UP about more than 9 crore of about 26 districts are compelled to travel all the way to Allahabad which ais about 700-800 km away from all these districts and benches and high courts of 8 states are nearer to West UP as compared to Allahabad still Supreme Court never stepped in!
                           As if this was no enough, Justice Jaswant Singh Commission headed by former Supreme Court Judge – Justice Jaswant Singh had recommended 3 benches of high courts to be created for West UP and hilly areas (now Uttarakhand) at Agra, Nainital and Dehradun but not a single bench was created even though on its order a bench was created at Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu! Yet Supreme Cout never said a word on it! In 2012, Centre created 2 more high court benches for Karnataka which already had a bench at Hubli for just 4 and 8 districts at Dharwad and Gulbarga but not a single bench for more than double of the districts – 26 of West UP yet Supreme Court never said a word on this! The 230th report of Law Commission had recommended creation of more high court benches in big states in 2009 buit Centre implemented it only in Karnataka which till now remains the only big and sole beneficiary of it yet Supreme Court did not say a word on it!
                                 This despite the fact that Ban ki Moon who was UN Secretary General had slammed UP and not Karnataka as “rape and crime capital of India” and maximum pending cases are in UP about 10 lakhs and in Karntaka it is less than 2 lakhs yet it was awarded 2 more benches but Supreme Court said nothing! West UP accounts for more than half of pending cases of UP as was testified by Justice Jaswant Commission yet Supreme Court never ordered creation of a bench here! Even former PM Atal Bihari Vajpayee demanded creation of a bench in Parliament but again Supreme Court kept aloof! It is no secret that maximum crime, maximum killings alkl take place in West UP yet it has no bench and UP tops the number of killings list of states and Bihar comes second yet UP has least benches in India and Bihar has none whereas peaceful states like Maharashtra, Karnataka and Assam have either 3 or 4 benches yet Supreme Court never stepped in even though it comes under its purview!
                               Truth be told, the lawyers of West UP have gone several times on strike as for instance for 6 months from July to December 2001, for 3 to 4 months in 2014-15 and have been striking work for more than 36 years every Saturday from May 1981 to December 2017 and is still continuing but judiciary has never stepped in to resolve this vexed issue! It has always chosen to kept aloof! Why has it never intervened for such a long time?
                                Truly speaking, the people of West UP who are litigants are compelled to travel whole night more than 700-800 km all the way to Allahabad without reservations many times and face many other inconveniences but judiciary never intervened! Why? When it can exercise itself restraint on this count where so many people have to face so many inconveniences which is a talking point everywhere especially in West UP then why can’t it act similarly in other cases also?
                               Warning that there would be no limits if the “Lakshman Rekha” is crossed, Jaitley said, “You probably (will) have a court saying where security forces are to be deployed is something which I will decide…” He added that if every high court were to decide on where security forces are to be deployed, for instance, “it’s an invitation to anarchy.” The Kolkata High Court had in October stayed the Centre’s move to withdraw Central forces from Darjeeling and Kalimpong districts, where they had been deployed during the recent Gorkhaland protests. This was subsequently lifted by the Supreme Court.
                           It has to be borne in mind that in his inaugural address, President Ram Nath Kovind who earlier has himself practised inm Delhi High Court and Supreme Court too touched upon the need for sepration of powers between the judiciary, legislature and executive, saying, “They need to be careful not to cross into each other’s defined spaces or give the opportunity to read transgressions where none is intended. This can occur in many circumstances. For instance, when extraneous comments and obiter dicta come to dominate public debates, crowding out of substantive understanding and deliberation of a well thought out judgment.”
                          It also cannot be lost upon us that earlier, addressing the inaugural session, CJI Dipak Misra asserted that judiciary was duty bound to stand with citizens if other organs of state encroached on their fundamnetal rights. He said that, “The fulcrum of governance – let it be legislature, let it be judicary, let it be executive – is that the citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment thery encroach upin it or there is an apprehension there shall be encroachment, the judicary is obliged to stand by them.”
                                   It is also of immense significance that the CJI sought to allay fears of judicial activism but stressed that it was the job of the courts to interpret government policies. He said that, “There is a perception that there is judicial activism. I must clarify. Protection of fundamental rights of each and every citizen is trhe sacrosanct duty of the judiciary which has been conferred on it by the Constitution. Fundamental rights have been expanded from the date the Constitution came into existence. Expansion of fundamental rights is done by the process of interpretation…Nobody intends, nobody has the desire to enter upon policy making areas. We don’t make policies, we interpret policies and that’s our job.” He has a point!
                                  Well said but again I must ask: Why Supreme Court has never ordered the creation of more high court benches in big states like UP and Bihar which are notorious for their lawlessness when even Union Cabinet Ministers like former Satyapal Singh have in past demanded the creation of 5 more benches at Meerut, Agra, Jhansi, Gorakhpur and Varanasi and considering the indisputable fact that Allahabad High Court is oldest in India completing its 150 years in 2016 and is biggest court in whole of Asia yet has least benches in India! All high courts come under the jurisdiction of Supreme Court still why has it never taken any action on this score?
                                 Why UP sends maximum MPs, maximum MLAs and maximum elected representatives and has maximum population more than that of Pakistan still has least benches and why when even Justice Jaswant Commission recommended creation of bench here in Agra was not a bench created here? Why Supreme Court till now has chosen to look the other way? Why has it never shown any activism in this regard not just in UP but for any other state as well? Why can’t it exercise such restraint in other areas also? It is high time and some serious introspection must be done and it must be always rememebred that “Even Judges are not infallible”! A good rapport is needed between executive, legislature and judiciary for running the country smoothly and clashes must be avoided by paying heed to what Arun Jaitley has said so elegantly! This is what our nation needs now!   
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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In a first, the Supreme Court which is the highest court of our country has very clearly directed the Centre to constitute special courts to exclusively try criminal cases involving politicians.
Set Up Special Courts To Try Politicians In Criminal Cases: SC Directs Centre
 A Bench of Supreme Court comprising of Justices Ranjan Gogoi and Navin Sinha have in their considered opinion held that, “In so far as setting up of Special Courts are concerned, setting up of Special Courts and infrastructure would be dependent on the availability of finances with the States…the problem can be resolved by having a central scheme for setting up of courts exclusively to deal with criminal cases involving political persons on the lines of the Fast Track Courts which were set up by the Central Government for a period of five years and extended further, which scheme has now been discontinued. Scheme to give effect to the above may be laid before the Court on the next date fixed, indicating the amount of funds that can be earmarked for setting up of Special Courts.” Centre must comply with what Supreme Court has said as soon as possible so that politicians with criminal background are shunted out permanently from politics at the earliest.
                                            While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bench which was hearing a petition filed by BJP leader Ashwani Upadhyay seeking life time bans on convicted politicians from contesting elections, accepted Additional Solicitor General Atmaram Nadkarni’s request to give the Centre six weeks to submit details of the scheme. The matter will now come up for hearing on December 13. There is lot of merit and force in what Ashwani is seeking from Supreme Court and there is no valid reason why life time ban should not be imposed on convicted politicians.
                                               It cannot be lightly dismissed nor would it be out of context to mention here that the Election Commission too on November 1 has proposed life ban for MPs/MLAs convicted in criminal cases in view of the rising trend of criminalization in politics. Presently we see how just a six-year ban is imposed on convicted politicians under the Representation of People’s Act. Politics has become a den for criminals and to purge this den from criminals, it is imperative that they are punished with life ban if they are convicted.
                                            What is most perplexing is that on such a contentious and all important issue which can throw out all convicted politicians permanently from politics we see the unpalatable truth before us that Centre has chosen to remain non-committal. Additional Solicitor General Atmaram Nadkarni told the court that the recommendations of both the Election Commission and the Law Commission of India were pending with the Centre. However, it is a matter of some consolation that on the other key issue of fast-tracking trial against tainted politicians we saw a unanimity between the Election Commission and the Centre with both in favour of setting up of Special Courts.
                                       It is noteworthy that by a rough estimate, the Centre said about 1,000 courts would have to be set up. The Bench told the Centre to first frame the scheme and allocate funds following which States could follow suit by setting up the infrastructure required to try criminal cases against MPs and MLAs. The Additional Solicitor General Atmaram Nadkarni agreed to frame the scheme before December 13 which is the next date of hearing.  
                                                         Be it noted, senior advocate Meenakshi Arora while appearing for Election Commission, informed the Bench that the Election Commission was in “support” of a life ban on convicted MPs/MLAs who stand disqualified for 6 years on their conviction in a criminal case punishable with a sentence of two or more years as stipulated under Section 8(3) of the Representation of the People’s Act, 1951. She said that the Election Commission had recommended so to the Centre with a view to curb the growing criminalization of politics. It is because of criminalization of politics that we see that criminals are able to manipulate everything in their own favour as they wield the keys to the corridors of power which is most dangerous and concerning!
                                           Truth be told, during the hearing, the Centre drew the Apex Court’s ire for saying that though it was in favour of special courts trying cases against politicians and their speedy disposal, the constitution of such courts was primarily the responsibility of the states. Justice Ranjan Gogoi spared no punches in hitting out at Centre by saying that, “You say you have no opposition to fast track courts. Same time you say states have to set up… On one hand, you are making a commitment and at the same time, you are washing your hands off.” The Apex Court also referred to a report submitted to it by an NGO associated with electoral reforms named Association of Democratic Rights which disclosed names of 1581 MPs/MLAs facing 13,500 criminal cases in the present Lok Sabha and State Assemblies.    
                                             Be it noted, the Apex Court also asked Centre to inform it about the status of these 1581 criminal cases pending against lawmakers at the time of filing nominations to the 2014 elections. It also must be recalled here that in an order dated March 10, 2014, the Supreme Court had directed that the cases against legislators be expedited and disposed within a year. The Apex Court minced absolutely no words in asking this most categorically that, “How many of 1581 cases involving Members of Legislative Assembly (MLAs) and Members of Parliament (MPs) (as declared at the time of filing of the nomination papers to the 2014 elections) have been disposed of within the time frame of one year as envisaged by this Court  by order dated 10th March, 2014 passed in Writ Petition (Civil) No. 536 of 2011. How many of these cases which have been finally decided have ended in acquittal/conviction of MPs and MLAs, as may be?”
                                                     As it turned out, the Bench also wanted to know if any new criminal case had been lodged against any present or former MP or MLA between 2014 and 2017 and its status. Underlining the dire need for Special Courts, Justice Ranjan Gogoi referred to the workload of trial courts across the country. At any point of time, each court was handling as many as 4200 cases, Gogoi said. He also added that, “But 4200 is much above optimal. Even if the Supreme Court says that the courts should dispose of cases in one year, that will be possible only if these courts were handling cases involving lawmakers and nothing else.”
                                                  Truly speaking, the Judges did not favour the suggestion that the proposed Special Courts be clubbed with other designated courts like CBI courts. It must be made mandatory for all candidates contesting elections that they should declare their assets and list criminal cases against them, if any and the latest position of those criminal cases whether they have been declared guilty or is still just pending. No doubt, it is a matter of grave concern that criminalisation of politics is increasing very rapidly and still they are not barred permanently from contesting elections.
                                          It would be pertinent to note here that the Supreme Court on October 31 sought to know the rate of conviction of politicians in criminal cases and asked whether its direction to complete trial against them within a year was being effectively implemented. The Apex Court said that data about the conviction rate of politicians in criminal cases would open up a “new dimension” and sought to know whether it would act as a “deterrent” if the trial against lawmakers is completed in a year. Very rightly so!
                                       As things stand, a Bench of Justices Ranjan Gogoi and Navin Sinha said that, “We would also like to know what is the rate of conviction. That will throw open a new dimension. We will see that criminal cases against politicians, if it does not end in conviction, then why? What are the reasons for it?” The top court made these observations while hearing petitions seeking to declare the provisions of the Representation of People (RP) Act, which bar convicted politician from contesting elections for six years after serving jail term, as ultra vires to the Constitution. Referring to data, the counsel claimed that an estimated 34 percent of Parliamentarians had a criminal record.
                                Interestingly enough, the Bench observed that a direction was earlier passed by the top court that trial against politicians should be completed within a year and wanted to know how effectively was that order being implemented. The court also asked what would happen to a Judge when charges were framed against him or an FIR lodged. To this, the counsel replied that, “The court has laid down such a high and rigorous standards for Judges. If this is the position in the case of Judges, why can’t the same be there in case of politicians.”     
                                   While there can be no denying that the setting up of Special Courts to try criminal cases is a good step but it must be also ensured that adequate Judges are appointed for deciding such cases and they are fast tracked and all necessary infrastructure is provided to achieve the aforesaid purpose! Only then will the setting up of Special Courts will serve the desired purpose. Even Supreme Court itself had said that, “It takes years, probably decades, to complete a trial against a politician. By which time, he would have served as a minister or legislator several times over.” This is what needs to be checked and this is what that is most concerning!
                                   Needless to say, Justice Ranjan Gogoi in his preliminary remarks, observed that all these issues of life-time ban on convicted politicians, implementation of earlier court orders that mandated time bound disposal of such cases and automatic disqualification of convicted lawmakers can be addressed if cases against politicians are dealt by Special Courts exclusively set up for the purpose. He said that, “There are only 17,000 courts in India. Once the Special Courts finish their work, they can continue functioning as normal courts. A thousand courts more are welcome….You have to appoint public prosecutors, provide infrastructure.” Very rightly said! No denying or disputing it!
                                       According to the Department of Justice, more than 6.5 lakh cases are pending in fast track courts in the country. This is quite a whooping figure. It should be reduced to a bare minimum. Out of these cases, there are about 1500 in Delhi alone. Without adequate infrastructure and qualified Judges, these fast track courts are ill equipped to deal with such a huge volume of cases. Therefore, what must be first and foremost addressed is proper infrastructure and adequate qualified Judges. Only then will the fast track courts serve their true purpose and ensure that politicians don’t exploit our snail paced judicial system in their own favour!
                                     Why so much of leniency is shown towards politicians alone? Why when a person is disqualified from becoming a Judge or IAS or IPS or joining Army or any other government service even if someone registers a false case then why are politicians alone exempted from it and are given the long rope to label it as “politically motivated”? Why is it not appreciated that considering the palpable truth that politicians are the basic pillars of governance who exercise control over police, bureaucrats and all other services and people also look on them as their ideal then why should criminals be allowed entry in politics at the first place?
                                          This is the root cause of rapid criminalization of politics and politics becoming the den of criminals! This has a pervasive effect on all other services and on our society as a whole which is always sought to be ignored. We have seen how even dacoits and mafias are easily able to enter politics by power of their money and muscle and then make a complete mockery of our entire democratic system! Should this be allowed to happen at the first place? The unpalatable truth is that we have allowed this right under our nose since the last 70 years! How can those charged with rioting, murder, attempt to murder, rape, gang rape, corruption, forgery and cheating etc be ever loyal in discharging his duties as MP or MLA? But what a pity that they have always been exempted instead of setting the highest bar for them! This under no circumstances can ever be justified! All said and done, there has to be zero tolerance for criminalization of politics. There can be no compromise on this under any circumstances! On a concluding note, it must be said that the Supreme Court has rightly directed Centre to set up Special Courts to try politicians in criminal cases and Centre must do it on a war footing!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 
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