Showing posts with label News Analysis. Show all posts
Showing posts with label News Analysis. Show all posts
It must be observed right at the outset that in a remarkable and landmark judgment delivered on October 31, 2018 in Reena Hazarika v State of Assam in Criminal Appeal No. 1330 of 2018 (arising out of SLP(Crl.) No. 2440 of 2018) authored by Justice Navin Sinha for himself and Justice RF Nariman, the two Judge Bench of Apex Court observed quite clearly and convincingly that a solemn duty is cast on the court in the dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing. It was also held that, “Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem, rather it confers a valuable right upon an accused to establish his innocence”. It also made it explicitly clear that if there has been no consideration at all of the defence taken by the accused under Section 313 of the Code of Criminal Procedure, the conviction can stand vitiated.   Image result for legal

                              In retrospect, it must be pointed out that a woman, who was convicted for the murder of her husband, had approached the Apex Court assailing concurrent verdicts of the trial court and the high court. In her 313 CrPC statement, she had stated that she was falsely implicated by one Manoj. She also said that she suspects some other persons are behind the murder of her husband.

                                   To put things in perspective, it is pointed out in para 2 that, “The appellant is the wife of the deceased convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 1000/- and in default, imprisonment for one month.” It is then pointed in para 3 that, “The deceased resided along with the appellant and his minor daughter CW-1, Miss Puja Hazarika, aged about 9 years, in the tenanted premises belonging to PW-1 Manoj Kumar Deka, PW-2 Dipen Deka and PW-3 Bhrigumoni Deka, who are brothers. The appellant is stated to have assaulted the deceased in the intervening night of 10.05.2013/11.05.2013. PWs. 1, 2 and 3 are stated to have heard noises and on going there, found the deceased with head injury attributed to a fall, but that the deceased was otherwise alright. They were unable to take him to the hospital because of rains and the unavailability of an ambulance. According to the post-mortem report proved by PW-6, Dr. Ritu Raj Chaliha the deceased had the following injuries on his person:-

(i)                         Chop wound of size 11cm x 2cm x muscle deep present on left side of cheek 6 cm medial tragus and 1 cm above angle of mandible.

(ii)                      Chop wound of size 9cm x 2cm x muscle deep present back of occipital region.

(iii)                   Chop wound of size 4cm x 2cm x muscle deep present on left side of forearm.

(iv)                   Laceration of size (5 x 4) cm present over left wrist joint on posterior aspect.

(v)                      Chop wound of size (4 x 1) cm x muscle deep, present over temporal region on right side.

(vi)                   Chop wound of size (6 x 2) cm of muscle deep present over back of scapula.

(vii)                Fracture of temporal bone on both sides.

 All injuries were ante mortem and caused by moderately heavy sharp cutting weapon and homicidal in nature.

                                     Simply put, it is then pointed out in para 4 that, “The Trial Court and the High Court held that the present was a case of circumstantial evidence. The last seen theory establishes the presence of the appellant with the deceased at night. Her unnatural conduct because she was not crying, she was the assailant of the deceased.” It is then rightly elaborated upon in para 5 that, “Mr. Singh, learned counsel for the appellant submitted that the courts below have erred in holding that the links in the chain of circumstances stood established leading to the only inescapable conclusion of the appellant being the assailant and no other hypothesis of innocence being possible. PW-6 has deposed that the injuries were caused by a moderately heavy sharp cutting weapon such as a dao, and that the fracture of the temporal bone may have been caused by a moderate heavy weapon. The recovery from the place of occurrence, as proved by PW-7 S.I. Nilomani Malakar, is of an ordinary knife used for cutting betel nut, one feet long with a bent sharp point. Chop injuries were not possible with the same. The alleged knife was not even shown to PW-6 for eliciting opinion if the injuries could have been caused by the same.”  

                                   Going forward, para 6 then states that, “Miss Diksha Rai, learned counsel for the appellant submitted that the appellant was last seen with the deceased in the room, confirmed by CW-1. The appellant has failed to offer any explanation of the circumstances as to how the death occurred at night. Her unnatural conduct in not even weeping was also noticed by PW-7. The knife used for assault , and blood soaked clothes of the deceased have also been recovered.”

                                Striking a note of caution, it is then observed in para 7 that, “We have considered the respective submissions, the orders of the courts below, as also the evidence available on record. Normally this court under Article 136 of the Constitution, would be reluctant in appeal to interfere with the concurrent findings of two courts by reappreciating the facts and evidence. But in an appropriate case, if this court finds that there has been erroneous consideration and appreciation of facts and evidence, leading to miscarriage of justice, this court is duty bound to ensure that ultimately justice prevails. It is a well established principle of criminal jurisprudence that several accused may go free, but an innocent person should not be punished. In Anant Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 this court observed as follows:-

“16. Ordinarily, it is not the practice of this Court to re-examine the findings of fact reached by the High Court particularly in a case where there is concurrence of opinion between the two Courts below. But the case against the appellant is entirely based on circumstantial evidence, and there is no direct evidence that he administered a poison, and no poison has, in fact been detected by the doctor, who performed the post-mortem examination, or by the Chemical Analyser. The inference of guilt having been drawn on an examination of a mass of evidence during which subsidiary findings were given by the two Courts below, we have felt it necessary, in view of the extraordinary nature of this case, to satisfy ourselves whether each conclusion on the separate aspects of the case, is supported by evidence and is just and proper. Ordinarily, this Court is not required to enter into an elaborate examination of the evidence, but we have departed from this rule in this particular case, in view of the variety of arguments that were addressed to us and the evidence of conduct which the appellant has sought to explain away on hypotheses suggesting innocence. These arguments, as we have stated in brief, covered both the factual as well as the medical aspects of the case, and have necessitated a close examination of the evidence once again, so that we may be in a position to say what are the facts found, on which our decision is rested”.”  

                                  While reiterating that benefit of doubt must be given to the accused, it is then stated in para 8 that, “The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.”

                                 Needless to say, para 9 then brings out that, “Before proceeding with the discussion further, we deem it proper to notice that the appellant did not have the benefit of a lawyer of her choice, both before the trial court and the High Court, naturally because of some handicap. She had to be provided legal assistance by the Legal Services Authority. This is not to make any comment or observation on the nature of the defence made available with the appellant but only to notice her handicap in establishing her innocence.”

                                        As it turned out, para 10 then observes that, “Pw-1 deposed that he was told by the deceased at about 11:00 p.m. on 10.05.2013 that he had suffered a head injury because of a fall, and that the witness did not provide any first aid to the deceased though he along with his brother PW-2, did try to call an ambulance at about 12:00 am. Additionally, that he did not see any other injuries on the deceased. On the contrary, CW-1 deposed that PW-1 had applied Dettol to the wounds of the deceased.” What follows next is para 11 which envisages that, “Contrary to the statement of PW-1, his brother, PW-2 deposed that he was woken up at about 2-3 a.m. by the appellant who was crying and told him that her husband had suffered head injury. The deceased is then stated to have himself told the witness that the injury was not serious. The contradiction in the evidence of PW-1 and PW-2 is further compounded by the third brother PW-3, deposing that PW-2 informed him of the injury to the deceased at 12:00 am. All the three witnesses have deposed that the deceased was of heavy built, because of which they were unable to take him to the hospital on the motor-cycle, for the treatment. The post mortem however recites that the deceased was of average built. If the deceased had merely suffered a head injury by fall and was otherwise fit to talk to the witnesses, we see no reason why he could not have been taken to the hospital on a motorcycle. While PW-3 states that the deceased was wearing clothes, the post-mortem report shows that the deceased was brought in an underwear only. The clothes of the deceased were found near the well in a gunny bag. But PW-7 did not consider it necessary to have the blood group examined by the FSL, which in our opinion in the facts of the case is a major lapse.”  

                       While pooh-poohing the serious charges levelled against the appellant, it is then observed in para 12 that, “The post-mortem report makes it evident that the chop wounds could not have been caused by the small knife alleged to have been recovered. Fracture of the temporal bone with the knife was an impossibility. PW-6 in the deposition ruled out that the injury could be caused by a fall. The post mortem did not find any alcohol in the body of the deceased. The witness also opined that injury no. 4 could have been caused while the deceased may have attempted to save himself from assault. The multiple injuries could certainly not have been caused by one person and tells an entirely different story by itself that the assailants may have been more than one. The chop injuries were possible by a modertae and heavy weapon like a dao. In our opinion also, if the deceased was of average built, it is difficult to accept, according to normal prudence and human behaviour and capacity, that the appellant being a woman, could have made such severe and repeated assault on the deceased, who was her husband, with a small knife, without any resistance and suffered no injury herself.”

                                     Punching further into the holes of the prosecution version, it is then observed in para 13 that, “PW-7 claimed to have found a knife with the smell of Dettol. Even if the knife had been wiped to erase traces of blood the wooden handle could have revealed much if it had been sent to the FSL. The witness again offers no explanation why he did not do so. No bottle of Dettol has been recovered. There is absolutely no evidence that the deceased would often assault the appellant and the minor child in a drunken condition. The fact that PW-7 did not notice tears in the eyes of the appellant, deemed an unnatural conduct by the courts below, cannot be sufficient to draw an adverse inference of guilt against the appellant. The appellant being in a helpless situation may have been stunned into a shock of disbelief by the death of her husband. It is not uncommon human behaviour that on the death of a near relative, or upon witnessing a murderous assault, a person goes into complete silence and stupor showing no reaction or sensibility. We also find it difficult to believe and rely upon the evidence of CW-1 primarily because of her minority. If the deceased had been assaulted by the appellant in the room at night, it would certainly have led to noise and shouts and the witness could not have possibly slept throughout without waking up.”

                                    It also cannot be lost on us that the very basis of the prosecution case against the appellant stands eroded when we go through para 14. It is pointed out in para 14 that, “PW-1 deposed that he informed the police the next morning at about 8:00 a.m. But PW-7 has deposed that information was given to the police station by PW-1 at about 12:00 p.m. on 11.05.2013 and the General Diary entry no. 452 made in the police station at 12.20 p.m., and the F.I.R. registered at 7:45 p.m. These are suspicious circumstances which leaves enough time for planning after thinking for the manner in which allegations were to be made for deflecting that the occurrence took place in a manner other than what may have happened actually.”

                         To be sure, it is then brought out in para 15 that, “In the background of the aforesaid discussion regarding the nature of evidence and the manner of its appreciation, we deem it proper to set out the English translation in the paper book of defence taken by the appellant under Section 313 Cr.P.C. as follows:-

“Ans: On the date of occurrence at about 8-8:30 while I have returend from my work at Satgaon, I saw that my husband was lying in the room with bleeding injury. On my cry, Manoj Deka and his brothers come there with drink in the hand of one brother. Thereafter I saw Manoj Deka was putting Dettol on the wound of my husband. I also rang to 108 ambulance. When, I wanted to call police Manoj Deka, snatched the phone from me. On my crying neighbouring peoples arrived there. I tred to take my husband to medical but due to non co-operation by Manoj Deka and others, I failed to take him to Medical. On that night at about 9.30 my husband expired and Manoj Deka and other neighbours were sitting. Subsequently, Manoj Deka has falsely implicated me. I have the suspicion that my husband was physically assaulted earlier at some place by Mintu Nath, Dipak Das and Jeetu Deka while taking liquor and brought my husband on injured condition and laid in the room. I also saw the lock of my room in broken condition, when I arrived here. I have not killed my husband. I am innocent.”

In this same para, it is then pointed out that, “PW-2 has acknowledged in his evidence that he would have drinks with the deceased. According to the post-mortem report, the stomach of the deceased was found empty, suggesting that the assault had taken place earlier in the evening contrary to the evidence of PWs. 1, 2 and 3 suggesting the assault in the late hours of the night by which time the deceased would undoubtedly have had his dinner.”

                      While underscoring the rights conferred by Section 313 of the Cr.P.C on the accused, para 16 then points out that, “Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valubale right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby.Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.”  

                        It is then lamented in para 17 that, “Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr. P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh vs State of Madhya Bharat AIR 1953 SC 468. A similar view is expressed in M. Abbas vs. State of Kerala, (2001) 10 SCC 103 as follows:-

“10….On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities….”

                           While allowing the appeal in para 19, it is then finally and perhaps most importantly held in para 18 that, “The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case.” Rightly said!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.  
It is most reassuring, refreshing and reconsoling to note that for the first time in at least my memory have I ever noticed a Chief Justice of India who even before assuming office outlined his priorities very clearly and courageously – to fill up judicial vacancies especially in lower courts which are at an all time high and also in the high courts and even the Supreme Court and to ensure that justice is accessible to the poor, needy and deprived! We have seen for ourselves how many decades are consumed in deciding a very small petty case what to talk about complex cases like the one of Ayodhya which has been lingering since last more than 65 years! This must now come to an end and CJI Ranjan Gogoi appears fully committed to ensure this!

                                 To be sure, the Supreme Court on November 1 cautioned the States and the High Courts that it will resort to a “centralised selection mechanism” if they do not act promptly to fill the over 5,000 judicial posts lying vacant in the lower judiciary. The Apex Court did not pull back punches in reprimanding the States and also the High Courts for their inefficiency in filling the vacancies in the subordinate judiciary which is staggering at an all time high! It is a national shame that it takes many decades for cases to be decided even in lower courts and despite all this, the judicial vacancies are not filled up and it takes many months for the results of Preliminary exams to come and when it does come then another few months are consumed in conducting Mains and then months in interview and then again a lot of time in declaring the final merit list! Even after the final merit list is declared, it still takes a lot of time for successful candidates to ultimately join! This is especially true in big states like UP which has maximum pending cases and where maximum judges vacancies arise every year!  
                         Not just this, what is noticed is that some High Courts even attach minimum marks with interview for qualifying even though Supreme Court in Himani Malhotra v NCT (State of Delhi) and in other cases also clearly held that there would be no minimum marks for interview as it is whimsical, arbitrary and subject to the whhims and fancies of a single individual! Even vacancies are not notified for many years as we saw in Delhi where no vacancy was notified for HJS from 2010-2013 and in some other states like Haryana, Rajasthan etc the situation was much worse! Worst of all, arbitrary conditions are attached like candidate desiring to appear in exam must have minimum salary of few lakhs in a year as we saw in Haryana from 2014 onwards which deprives those bright lawyers from appearing in exam just because they don’t earn in few lakhs which under no circumstances can ever be justified because money can be no criteria for appearing in an exam for judge! Even eminent lawyers like KTS Tulsi did not get cases for initital few years in Supreme Court so was he not treated as lawyer and how can this be a handicap for barring him to appear in an exam for becoming Judge? By the way, money minded lawyers never want to become judge with few exceptions because for them money is first and top priority and as a Judge their salary is very miniscule when compared to their salary as a lawyer where they can mint money as much as they like by dint of their expertise and skills! This must all end and this is exactly what the CJI wants and very rightly so!
                                      Bluntly put, a Bench led by Chief Justice of India Ranjan Gogoi and also comprising Justice UU Lalit and Justice KM Joseph lambasted the High Courts and the States for not doing enough to fill up judicial vacancies in the lower judiciary both in the PCS and HJS! They held that, “We are telling all high courts and states that we are keeping you under constant gaze. If you cannot fill vacancies, then we will take over and have a centralised exam. We want our judges to be in place.”
                     As it turned out, the Chief Justice of India (CJI) Ranjan Gogoi rebuked the states and high courts for not filling up vacancies. The CJI minced no words in putting across his firm and blunt message by observing that, “Our gaze is on all states. If the vacancies cannot be filled by you, we will take over and do what is needed….There are hordes of applications by candidates who are deserving and what are you doing? Nothing was initiated to address the issue till we began monitoring! Our recurring queries have also not yielded any definite replies!”   
                                What is even more disquieting to note is that even Centre itself is not happy with all this! The Centre has proposed a centralised examination to fill them up, pointing to a staggering 2,76,74,499 cases pending in subordinate courts! Statistics reveal that there are 5,223 vacancies in trial courts! Why still have states and high courts miserably failed in filling up vacancies in time and in ensuring that results are declared in time and soon fresh vacancies are notified? Why was there no sense of urgency? With what face will now they accuse Centre of meddling in their domain when they have just not ensured the filling up of judicial vacancies in time? What is the point in now opposing the suggestion?
                                        As things stand, the situation in Delhi and Haryana was discussed as an example. It was pointed out by the Bench that Delhi had taken at least a year to fill up just 200 vacancies! Pulling up the Delhi High Court, the CJI said that, “It is taking over a year to complete the selection and recruitment when the number of posts is only 200. This casual attitude is not justified!” 
                                  As if this was not enough, in Haryana, the Bench revealed that the examination held in 2015 for filling up 60 posts of Judges was announced and 19,000 law graduates applied but it was cancelled and the fresh advertisement issued in 2018 attracted a huge rush with 13,000 more candidates applying which understandably led to collapse of the official website on the last date of application. No wonder, CJI Ranjan Gogoi was constrained to remark that, “All high courts and public service commissions (agency that holds exams) have been very casual.” All High Courts and Public Service Commissisons which is the agency that holds exams must seriously do a lot of self-introspection because it is none other than the CJI and 2 Judges of the Apex Court also along with him who have come to this unpalatable conclusion which is a stark reality and cannot be bruhed away lightly!
                                             Not stopping here, CJI added that nothing was initiated to address the issue till the Supreme Court began monitoring it on the administartive side. Even then, he rued, recurring queries have not yielded any definite replies! Both States and high Courts have a lot of explaining to do on this count!
                                         It may be recalled that it was on October 22 that the Bench headed by CJI Ranjan Gogoi took up the matter on its own volition under Article 142 of the Constitution and ordered all state governments and High Courts to update it on the status of recruitment of lower court Judges and whether the timeline for selection as laid down by the top court in a 2006 verdict by a Bench headed by the then CJI YK Sabharwal in April 2006 in the Malik Mazhar Sultan case was being followed. As per the order, appointment of new Judges to subordinate courts has to be completed in nine months. The vacancies must be notified by March 31 and they must be filled up by October 31!
                                   Be it noted, passing a suo motu order in the wake of the alarming number of vacancies for the post of Judges in the subordinate judiciary across the country, CJI Gogoi had required all the High Courts to relay to the registry of the Apex Court the following information by October 31 –
·      The dates on which the recruitment processes for lower and higher judicial services have been initiated and are expected to be completed;
·       Whether the time taken or likely to be taken is beyond the schedule prescribed by this court in Malik Mazhar Sultan v. UP Public Service Commission (2006). If yes, the reasons be furnished by the concerned registries;
·      Whether time expected to be taken to complete the ongoing process can be shortened to comply with the guidelines in Malik Mazhar which the court undertstands to be prescribing the outer time limit and not the minimum period;
·      The number of vacancies which have occurred in respect of the civil judge and the higher judicial services cadre since the date of issuance of advertisement of vacancies till the date on which the processes are expected to be completed;
·      Whether the infrastructure and manpower in different states are adequate if all posts which are borne in a cadre are to be filled up.
                              It would be imperative to mention here that deciding to examine the status in batches, the Bench summoned in person the Registrar General and authorized representatives of the Chief Secretaries of Uttar Pradesh, Maharashtra, West Bengal, Chhattisgarh, Delhi and the North-Eastern states on November 15 to be present for fast forwarding recruitment process. It would certainly not be an exaggeration to conclude that  this is the most historic and commendable step taken by the CJI for which the whole nation must stand indebted to him instead of targeting him for not focusing on issues which in his opinion are not as important as this! The Bench of Apex Court headed by CJI has also asked the Registrars General of the concerned High Courts, the Secretaries of the State Public Service Commissions as well as the Authorized Officer(s) of the States concerned to interact with senior and eminent lawyer Shri Shyam Divan who is Amicus Curiae in this vital case to present the result/position before the Court in as precise a manner as possible!
                                         Needless to say, if what has been commendably and courageously undertaken by CJI to fill up  all judicial vacancies in the lower courts in next nine months is undertaken expeditiously, it would be the biggest revolution in judiciary ever witnessed till now and it will certainly witness the huge pending cases coming down considerably! Who will not like this to happen? Only those who place vested interests above national interets! Not even a single Judge post should ever be vacant under any circumstances just like the post of MP and MLAs are never kept vacant and immediately bye elections are held whenever the seat becomes vacant due to any reason like death of sitting MP or MLA etc! With CJI Ranjan Gogoi at the helm of affairs we all have every reason to be pretty confident that the filling up of all vacancies in lower courts will no longer be a mirage or utopia and will certainly translate into palatable reality by expeditiously filling up the vacancies for which the CJI undoubtedly deserves full credit as it is his firm resolve and firm commitment that he right from the day he assumed office has demonstrated that he means action  and will not tolerate status quo of any kind as long as he is the CJI! Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

To begin with, it has to be appreciated and applauded in the right earnest that in a latest landmark judgment in W.P.(C) No. 35073 of 2014 delivered recently on August 8, the High Court of Kerala has in a historic move directed the Indian Railways to treat identity cards issued to lawyers by respective Bar Councils as a valid identity proof to undertake a train journey/travel. The court also asked the authorities concerned in the railways to issue appropriate orders notifying the above as expeditiously as possible. The railways have done accordingly by issuing a Circular and from now onwards the Bar Council ID Card is valid proof of identity for train journey as railways issues circular following landmark Kerala High Court judgment.Image result for id for train

                                        To be sure, the Circular issued by Joint Director Passenger Marketing of Railway Board following the judgment states that, “In pursuance of the judgment of the High Court of Kerala in W.P. (C) No. 35703 of 2014 the matter has been examined and it has been decided that photo identity cards with serial number issued to Advocates by Bar Councils of India may also be accepted as proof of identity of passengers for undertaking journey by train”. The Circular instructs Principal Chief Commercial Managers of all Zonal Railways to issue necessary instructions to all concerned to avoid inconvenience to passengers. It also directs the Zonal Managers to give wide publicity through all possible means to the revised instructions for the information of general public.

                                     Be it noted, this landmark and laudable judgment by Kerala High Court begins by pointing out that, “The petitioner, who is stated to be a practising Advocate on the Rolls of the Bar Council of Kerala, remonstratively accuses the Indian Railways of acting unfairly and discriminatorily in refusing to recognize and accept the photo identity cards issued by the Bar Council of Kerala as also that of the other States, as a valid proof of identity to undertake journey on trains in reserved seats.”

                     On the face of it, para 3 states explicitly that, “The singular grievance impelled by the petitioner in this writ petition is that even though several types and categories of identity cards are accepted by the Indian Railways, the photo identity cards issued by the various Bar Councils in India are expressly excluded. This, the petitioner predicates, is unfair and arbitrary, particularly because the said identity cards are issued by the various Bar Councils acting under the provisions of the Advocates Act, 1961.” Absolutely right! Who can deny or dispute it?

                                 To put things in perspective, on August 8, the Kerala High Court through a landmark judgment of Justice Devan Ramachandran directed the Railways to accept ID cards issued by Bar Councils as valid proof as they are statutory bodies under the Advocates Act. The order was made in this case where the request to consider the lawyer identity cards were rejected by the Indian Railways stating that Bar Councils were not government bodies, and further they are available at different levels in the country (district, state, national) and hence in the absence of any uniformity in the cards issued by such bodies, the same ought not to be considered as valid and acceptable.

                                      Needless to say, para 10 points out that, “After Sri. C.S. Dias and Sri. Manayani made their submissions as above, I elicited the specific views of the Kerala Bar Council through their Senior Counsel Sri. Gracious Kuriakose and the learned senior counsel informs me that it is the unequivocal and firm stand of the Bar Council of Kerala that the identity cards issued by them be accepted by all Authorities, including the Indian Railways and that they are always willing to offer verification of such cards as and when it is so required by any Authority, including the Railways.”

                                     As it turned out, while disapproving the stand of Railways, Justice Devan Ramachandran then held in para 11 that, “ Once I hear the submissions of Sri. Gracious Kuriakose, the learned senior counsel as afore, it becomes ineluctable that there cannot be any further cause or concern for the Indian Railways, in accepting the photo identity cards issued by the various Bar Councils, since the respective Councils are obligated to verify and affirm the authenticity of a card issued by them, in case its genuineness is suspected for any reason by the competent Authorities of the Indian Railways. This is more so because they are statutory bodies, operating under the ambit of the Advocates Act, thus enjoining them to ensure the validity and rectitude of the cards and documents issued by them, if it is so required by any Authority, in terms of law.” It was also held that the notion of different level of Bar Councils was incorrect, there being only one respective Bar Council for a state and a Bar Council of India at the national level. The Court therefore asked the authority concerned in the railways to issue appropriate orders notifying the above as expeditiously as possible.

                                           It cannot be lost on us that para 12 then stipulates that, “In the above perspective and being guided by the specific averments in para 7 of the counter affidavit filed on behalf of the Indian Railways, wherein they say that they will accept the identity card issued by the various Bar Councils if they undertake to verify its genuineness in case suspicions are raised on the authenticity of the cards, I order this writ petition and direct the competent Authority of the Indian Railways to issue appropriate proceedings/orders notifying the acceptance of the identity cards issued to Advocates by the Kerala Bar Council and all other Bar Councils in India as valid proof of identity for train journey/travel.”

                                     Finally and most importantly, para 13 then enunciates that, “This exercise shall be completed by the competent amongst the respondents 1, 5 and 6 as expeditiously as is possible, but not later than 2 months from the date of receipt of a copy of this judgment and the consequential orders shall be notified and published as per application procedure. This writ petition is thus ordered.”

                                All said and done, it is most heartening and refreshing to see that this landmark and laudable judgment delivered by the Kerala High Court through Justice Devan Ramachandran directing the Indian Railways to treat identity cards issued to lawyers by respective Bar Councils as a valid identity proof to undertake a train travel has now finally been implemented by the Railways by issuing the requisite Circular in this regard! This should have been there right from the start but better to be late than never! No doubt, full credit and full marks for this certainly goes to the Kerala High Court which has conveyed a loud and clear message to one and all that just like other identity cards, the identity cards issued to lawyers are also reliable identity proof and can be relied upon at any given point of time!    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be stated right at the outset that in a landmark and laudable judgment titled MC Mehta v Union of India & Ors (In Re: Recommendation Nos. 2.2.1 and 2.2.2 of Report Nos. 71 and 78 submitted by EPCA) in Writ Petition (Civil) No. 13029 of 1985 authored by Justice Deepak Gupta for a three-Judge Bench of the Supreme Court comprising of Justice Gupta himself, Justice Madan B Lokur and Justice S Abdul Nazeer while holding clearly and convincingly that Bharat Stage IV-compliant vehicles should not be permitted to be sold in India after 31.03.2020 has commendably and categorically observed that health of the teeming millions of this country will have to take precedence over the greed of a few automobile manufacturers. It was rightly held that, “Even a day’s delay in enforcing BS-VI norms is going to harm the health of the people.” It is bound to have far reaching and significant consequences which shall directly impact each and every citizen of India!

                           To begin with, para 1 of this landmark judgment sets the ball rolling by first and foremost pointing out that, “The seminal issue to be decided is whether Bharat Stage IV (for short BS-IV) compliant vehicles should be permitted to be sold in India after 31.03.2020.” Para 2 then points out that, “In an earlier judgment dated 13.04.2017, we have given detailed reasons for the order dated 29.03.2017 whereby this Court had directed that on and from 01.04.2017, vehicles which are not BS-IV compliant, shall not be sold by any manufacturer or dealer or motor vehicle company whether such vehicle is a two wheeler, three wheeler, four wheeler or commercial vehicle etc. We had also by the said order prohibited registration of non-BS-IV vehicles from 01.04.2017 except if such vehicles were sold on or before 31.03.2017. Since in the judgment dated 13.04.2017, we have set out in detail the history leading to implementation of the Bharat stage compliant fuels, it is not necessary to repeat the same here. However, a short recap of the same would be apposite to understand the issues in hand.”

                                       To recapitulate, it is then pointed out in para 3 that, “In 2003, the Government of India announced the National Auto Policy based on the recommendations of the Mashelkar Committee constituted in 2001. BS-IV compliant vehicles were made compulsory for four wheelers in different parts of the country on different dates starting from 01.04.2005, from which date registration of only BS-IV compliant vehicles were permitted in the metropolises of Delhi, Ahmedabad, Bengaluru, Mumbai, Pune and Kolkata. Thereafter, it was made compulsory to have BS-IV compliant vehicles in some other cities from 01.04.2010. More cities were added on 21.05.2010 and on 14.07.2015. Finally, by amendment dated 19.08.2015 it was mandated that BS-IV norms would come into force throughout the country w.e.f. 01.04.2017.”

                                        Going forward, it is then pointed in para 4 that, “As far as two and three wheelers are concerned, they were made subject to BS-III norms on and with effect from 01.04.2010 by insertion of sub-rule 16 in Rule 115 of the Central Motor Vehicle Rules, 1989 hereinafter referred to as ‘the Rules’. With effect from 04.07.2014, it was mandated that on and from 01.04.2016 all two wheeler vehicles will comply with BS-IV emission norms and all existing models will shift to BS-IV emission norms from 01.04.2017. Similarly, Rule 17 was inserted in Rule 115 of the Rules on 12.06.2015 in respect of three wheelers wherein BS-IV standard would be applicable to new models on or after 01.04.2016. Resultantly, only those vehicles which were BS-IV compliant would be sold after 01.04.2017.”

                                         Not stopping here, para 5 then envisages that, “An issue was raised by the manufacturers of motor vehicles that they should be given reasonable and sufficient time for sale of stocks of those vehicles which are not BS-IV compliant vehicles but manufactured up to 31.03.2017. This Court did not accept the submission of the manufacturers and issued the direction referred to hereinabove. It would be interesting to note that though some of the manufacturers of two wheelers and three wheelers took a stand before this Court that great technological changes are required to make the vehicles BS-IV compliant, one of the largest manufacturers of two wheelers and three wheelers in India i.e. Bajaj Auto, filed an application in this Court praying that it was already manufacturing BS-IV compliant vehicles not complying to BS-IV norms should not be registered after 2017.”

                                        Needless to say, it is then pointed out in para 6 that, “The issue before us is somewhat similar. Mr. Ranjit Kumar, learned senior counsel and Mr. Sandeep Narain, learned counsel appearing for the Society of Indian Automobile Manufacturers (for short ‘SIAM’) have submitted that though they are not averse to manufacturing BS-VI compliant vehicles, they should be given some time to sell the stocks of non BS-VI compliant vehicles manufactured upto 31.03.2020. In this regard, they have made reference to the notification dated 20.02.2018 whereby sub-rule 21 has been inserted in Rule 115 of the Rules, which reads as follows:

     “In the Central Motor Vehicle Rules, 1989, in rule 115 after sub-rule (20), the following sub-rule shall be inserted namely:-

       “(21) New motor vehicles conforming to Emission Standard Bharat Stage-IV, manufactured before the 1st April 2020 shall not be registered after the 30th June, 2020:

        Provided that the new motor vehicles of categories M and N conforming to Emission Standard Bharat Stage-IV manufactured before the 1st April, 2020 and sold in the form of drive away chassis, shall not be registered after the 30th September, 2020.”

                                         To be sure, para 7 then says “It is submitted that the Government of India while balancing the need for a cleaner environment with the practical difficulties faced by the manufacturers has given a three months’ window to the automobile manufacturers to dispose of the vehicles conforming to BS-IV norms. In respect of certain categories of commercial vehicles in which only a chassis is sold and a body has to be built thereupon, the period of registration has been extended up to 30.09.2020.”

                               As things stand, para 8 then goes on to elaborate saying that, “It has been contended on behalf of SIAM that in Europe the normal practice is that about one year’s time is given to the manufacturers of vehicles when a higher quality of fuel is introduced and the fuel is introduced much earlier and thereafter an outer limit is fixed for sale of compliant vehicles. According to SIAM, BS-VI fuel will be available in the entire country only with effect from 01.04.2020. Therefore, it is not feasible for the manufacturers to switch over to BS-VI compliant vehicles overnight. They have to be given some reasonable time for sale of the accumulated stocks of non-BS-VI (i.e. BS-IV) compliant vehicles. It is further submitted that six to nine months’ time is required to shift the assembly line to make BS-VI compliant vehicles and if the request of the manufacturers is not accepted, they will have to start manufacturing BS-VI compliant vehicles well before 31.03.2020 and at least three to six months prior to the said date. It has also been contended that earlier BS-VI fuel was to be introduced with effect from 01.04.2024, which was pre-poned to 01.04.2023 and it was then pre-poned to 01.04.2021 and finally the date was advanced to 01.04.2020. It was decided to leapfrog from BS-IV fuel to BS-VI fuel without shifting to BS-V fuel. According to SIAM, this is creating a lot of difficulties for the manufacturers.”

                                       It is then brought out in para 9 that, “Mr. Gopal Subramaniam, learned senior counsel appearing for one of the manufacturers, submits that his clients are already manufacturing vehicles which are both BS-IV and BS-VI fuel compliant and they are on the road already. Mr. A.N.S. Nadkarni, learned Additional Solicitor General submits that keeping in view the difficulties faced by the manufacturers and balancing the need to have a cleaner environment, three months period given to the manufacturers is reasonable. He also urges that the Rules have not been challenged by any party and, therefore, this Court should not go into the validity of the Rules.”    

                                    Delving deeper, para 10 then brings out that, “On the other hand, Ms. Aparajita Singh, learned amicus curiae, has made a passionate plea that no non-BS-VI compliant vehicle should be permitted to be sold in the entire country after 01.04.2020. She has drawn our attention to the Report of the Parliamentary Standing Committee (for short ‘the Committee’) dated 07.08.2018. This Report mainly deals with National Capital Region (NCR) of Delhi but there are some references to the entire country. Some of the observations made by the Committee need to be considered and taken note of. The Committee in Para 5.15 notes that the problem of air pollution is affecting all human beings and any leniency on the part of the Government in tackling it will have a cascading effect on the health of the citizens. These observations have been made with specific reference to vehicular pollution and the need to ensure compliance of BS-VI norms with effect from 01.04.2020. There can be no two views that air pollution is hazardous to health. We may, also take note of certain observations of the Report of the Committee which show that one out of three children in Delhi suffers from respiratory problems. This is almost twice as high as compared to the city of Kolkata or rural areas. We may note that the World Health Organisation’s (WHO) database of more than 4,300 cities showed Indian cities of Gwalior, Allahabad, Raipur, Delhi, Ludhiana, Khanna, Varanasi and Patna as being among the most polluted in the world. (“World’s Most Polluted Cities”, World Economic Forum, 03.05.2018) Our attention has been drawn to various other documents which clearly show the deleterious effects of pollution on health. The hazards of pollution and its ill effect on the health of the citizens especially children are not limited to the city of Delhi or the NCR of Delhi but affects all the citizens of the country.”

                               Elaborating further on the efforts made, it is then explained in para 11 that, “The Union Government has spent about Rs 30,000 crores to manufacture BS-IV compliant fuel. We have been informed that another Rs 30,000/- crores of the taxpayers’ money have been expended by the Union to ensure that the fuel available in the country is BS-VI compliant. It is heartening to note that the Union, being concerned with the health of the citizens and also taking note of the urgent need for a clean environment, has taken steps to manufacture cleaner fuel. This fuel has already been made available in the National Capital Territory (NCT) of Delhi from 01.04.2018 and we have been informed that barring a few places, it shall be available in the entire NCR from 01.04.2019. It will probably be available in many parts of the country prior to 01.04.2020 and the entire country will shift to BS-VI fuel from 01.04.2020. Obviously, the manufacture of clean fuel is being done in a phased manner because all the refineries cannot simultaneously start manufacturing clean fuel. It is not as if on 01.04.2020 just by waving a magic wand the entire country will change to BS-VI compliant norms. If all the refineries and manufacturers by taking note of the requirement to bring in BS-VI fuel, have introduced such fuel from 2018 and are introducing it in a phased manner in the entire country by 31.03.2020, we see no reason why manufacturers of automobiles, two wheelers, three wheelers etc. cannot also do so.”

                    While punching holes in the lame arguments forwarded by SIAM, para 12 then notes that, “We may note that whereas in this Court SIAM has been canvassing that the shift to BS-VI compliant vehicles is a long drawn out process requiring huge changes in technology, the very same manufacturers are selling and exporting BS-VI compliant vehicles to Europe and other countries. With regard to two wheelers it has been specifically urged that the technological changes are immense. To counter this argument the learned amicus curiae has drawn our attention to a Press Release issued by M/s. Hero MotoCorp., which is one of the largest motor manufacturers of two wheelers in the country. In this Press Release issued in July 2017 it has been stated that M/s. Hero MotoCorp. has begun developing BS-VI compliant models and it aims to introduce such products much before the timeline of 2020. The company has also stated that it will manufacture only BS-VI fuel compliant vehicles well before the date stipulated by the authorities. If one manufacturer can do this, we see no reason why other manufacturers of two wheelers cannot do so.” Very rightly so! It is most shameful to note that SIAM cites hundred lame excuses for not shifting to BS-VI compliant vehicles in India while simultaneously and most shamelessly selling and exporting BS-VI compliant vehicles to Europe and other countries! Even the Apex Court has noted this with utmost dismay! The Apex Court also rightly cites that when M/s Hero MotoCorp. has already started developing BS-VI compliant models then why can’t others do?   

                                    As it turned out, it is then observed in para 13 that, “With regard to trucks and buses, from a news item published in the Financial Express dated 06.07.2018, it is apparent that Eicher is already manufacturing trucks and buses which are not only BS-VI compliant but BS-VI CNG compliant. Another manufacturer of heavy vehicles i.e. Ashok Leyland had, in August 2018 through its subsidiary Optare obtained an order to manufacture the world’s first electric double decker buses. The technology needed to manufacture such electric buses is much more advanced and difficult as compared to the technological changes required to manufacture petrol and diesel vehicles which are BS-VI compliant. Similarly, TVS Motors on 07.08.2018 has issued a press note that it will be manufacturing BS-VI compliant vehicles much ahead of the deadline of 2020. Many members of SIAM in the Auto Expo held in February, 2018 have exhibited vehicles which are technologically much more advanced than BS-VI compliant vehicles. These manufacturers have not only asserted that they can manufacture electric vehicles but also asserted that they are developing hydrogen cell fuel vehicles along with hybrid, electric and CNG vehicles.”

                                         It is then clarified in para 14 that, “We have mentioned these facts only to highlight that some of the manufacturers are not willing to comply with the 31.03.2020 deadline not because they do not have the technology but because the use of technology will lead to increase in the cost of the vehicles which may lead to reduction in sales of the vehicles and ultimately their profit.” It is then rightly underscored in this same para that, “There can be no compromise with the health of the citizens and if one has to choose between health and wealth, keeping in view the expanded scope of Article 21 of the Constitution, health of the teeming millions of this country will have to take precedence over the greed of a few automobile manufacturers. The automobile manufacturers must behave responsibly. We expected that keeping in view our earlier order, they would have themselves volunteered to be BS-VI compliant by 31.03.2020. Unfortunately, this has not been the case with some of the manufacturers and they want to stretch on the timeline by a few days or months for no other reason but to make a little more money.”

                   Interestingly enough, it is then pointed out in para 15 that, “When we compare BS-VI fuel with BS-IV fuel, there is a massive improvement in environmental terms. Once BS-VI emission norms are enforced, there will be a 68% improvement in PM2.5. This is not a small change. It is a vast improvement and the faster it is brought, the better it is. The amicus curiae has strenuously urged that, at least, in the NCR of Delhi, the BS-VI norms be applied for sale of vehicles from 01.04.2020. We feel that it may not be practical to introduce BS-VI compliant vehicles region-wise or city-wise. In our view, the BS-IV experiment in this regard was not very successful. BS-VI compliant vehicles are going to be more expensive than BS-IV compliant vehicles. People have a tendency to buy cheaper vehicle(s) even from a neighbouring city. We also strongly feel that the problem of pollution is not limited to the NCR of Delhi but it is a problem which has engulfed the entire country especially the major cities. India has the dubious distinction of having 15 out of the 20 most polluted cities in the world. The pollution in Gwalior, Raipur and Allahabad is worse than Delhi. The situation is alarming and critical. It brooks no delay.”

                               Simply put, para 16 then enumerates various landmark delivered by the Apex Court from time to time. It stipulates that, “It is an established principle of law that the right to life, as envisaged under Article 21 of the Constitution of India includes the right to a decent environment (Shantistar Builders v Narayan Khimalal Totame AIR 1990 SC 630; (1990) 1 SCC 520). It includes within its ambit the right of a citizen to live in a clean environment (Bhavani River-Sakthi Sugars Ltd., In re, (1998) 2 SCC 601). With regard to vehicular traffic, this Court has issued a number of directions to ensure a clean environment and reduce pollution (M.C. Mehta v. Union of India, (1998) 6 SCC 60, M.C. Mehta v. Union of India, (1998) 6 SCC 63, M.C. Mehta v. Union of India (Matter regarding emission standard for vehicles), (1999) 6 SCC 12, M.C. Mehta v. Union of India, (2002) 10 SCC 191, M.C. Mehta v. Union of India, 2017 SCC Online SC 394). It has been held that the right to clean environment is a fundamental right (N.D. Jayal v. Union of India, (2004) 9 SCC 362). The right to live in an environment free from smoke and pollution follows from the “quality” of life which is an inherent part of Article 21 of the Constitution. The right to live with human dignity becomes illusory in the absence of a healthy environment (Shantistar Builders vs Narayan Khimalal Gotame & Ors. Etc. AIR 1990 SC 630, M.C. Mehta v. Union of India (2004) 12 SCC 118, State of M.P. v Kedia Leather & Liquor Ltd., (2003) 7 SCC 389). The right to life not only means leading a life with dignity but includes within its ambit the right to lead a healthy, robust life in a clean atmosphere free from pollution. Obviously, such rights are not absolute and have to co-exist with sustainable development. Therefore, if there is a conflict between health and wealth, obviously, health will have to be given precedence. When we are concerned with the health of not one citizen but the entire citizenry including the future citizens of the country, the larger public interest has to outweigh the much smaller pecuniary interest of the industry. In this case the automobile industry, especially when the entire wherewithal to introduce the cleaner technology exists.”

                                 In hindsight, it is then observed in para 17 that, “It is therefore necessary to ensure that BS-VI compliance is uniform throughout the country so that even those areas of the country which fortunately have not suffered the ills of extreme pollution are safe in the future. The sale of automobiles and other vehicles is rising exponentially and the number of vehicles on the road is increasing day by day. Therefore, even a day’s delay in enforcing BS-VI norms is going to harm the health of the people. We are dealing here with a situation where children and unborn children suffer from pollution and issues of intergenerational equity are involved. Do we as a society or as manufacturers of automobiles have a right to manufacture more polluting vehicles when we have the technology to manufacture less polluting vehicles? The answer is obviously a big NO. If we were to factor only economics even then it makes no economic sense to have more polluting vehicles on the roads. The effect of pollution on the environment and health is so huge that it cannot be compensated in the marginal extra profits that the manufacturers might make. The amount spent on countering the ills of pollution such as polluted air, damaged lungs and the cost of healthcare far outweigh the profits earned.”

                                     Truth be told, para 18 then observes that, “It was urged on behalf of the manufacturers that there are multiple sources of pollution and vehicles only contribute to 2% of the pollution. We are not in agreement with this submission because the Report of the Committee to which we have adverted hereinabove states that contribution of vehicles to ambient PM2.5 concentration during winter season is 25% and in the summer season it contributes 9%. Even if we were to accept the figures submitted by SIAM, we are of the view that no step is too small when it comes to fighting pollution. Small steps to reduce pollution when taken together will lead to large scale reduction in pollution which will result in much cleaner air, which eventually will result in a cleaner and better environment, healthier citizens and most importantly a healthier generation to come.” We all must adhere to what the Supreme Court has said! Ultimately, it is we and the coming generation who will gain the most if we abide by the landmark judgment delivered in this case!

                                    It cannot be lost on us what the Apex Court has said in para 19 of this landmark judgment. It is held that, “In view of the fact that these proceedings have been pending in court for a long time and also in view of the fact that it is because of orders of this Court that BS-IV and now BS-VI norms have been introduced from the dates which were not even thought of by the Government, we feel that we have to take suo moto  notice of the Rules. At the outset, we may notice that sub-rule 21 of Rule 115 is very vague. It does not talk of sale of vehicles. It only mentions registration of vehicles and permits registration of vehicles conforming to BS-VI norms up to 30.06.2020 and in case of categories M&N, up to 30.09.2020. This rule, in our view, is violative of Article 21 of the Constitution in as much as it extends time for registration of vehicles beyond 31.03.2020 and must be accordingly read down. Any extension of time in introducing the new norms which is not absolutely necessary adversely impacts the health of the citizens and is, therefore, violative of Article 21 of the Constitution of India. This Rule goes against the spirit of all the orders passed earlier by this Court. In the month of March, 2017 we were dealing with a situation when BS-VI norms were to be made effective throughout the country with effect from 01.04.2020 and this Court had directed that non-BS-IV compliant vehicles shall not be registered on or after 01.04.2017. The situation in the present case is totally different. 31.03.2020 is almost 1½ years away. There is sufficient time for the manufacturers to change over to the new system and, therefore, we see no reason why they should be given a window of three or six months for sale of accumulated vehicles. Every vehicle sold after the cut-off date of 01.04.2020 is bound to cause more pollution and, therefore, the manufacturers, in our considered view, cannot be permitted to sell any non-BS-VI compliant vehicle on or after 01.04.2020. On the one hand, the Government has been pro-active in spending huge amounts of money to move to the BS-VI technology, but on the other hand, the automobile industry is coming up with a variety of untenable excuses just to delay the introduction of BS-VI compliant vehicles by a few months. We, in our judgment dated 13.04.2017, had clearly held “when the health of millions of our countrymen is involved, notification relating to commercial activities ought not to be interpreted in a literal manner.” We have to give a purposive interpretation to notifications specially those dealing with public health issues and even more so, when health not only of the citizens at present but also the citizens in the future is involved. There is more than sufficient time for the manufacturers to manufacture BS-VI compliant vehicles. They already have the technology to do so. The automobile industry must show the will, responsibility and urgency in this regard.”

                                 Having said this, it must be noted now what para 20 says. It states that, “The Government has developed a policy of phasing out polluting vehicles and discouraging the manufacturers of polluting vehicles. This has been done in a gradual manner. Europe introduced Euro-IV fuel in the year 2009 and Euro-VI standards in 2015. We are already many years behind them. We cannot afford to fall back further even by a single day. The need of the hour is to move to a cleaner fuel as early as possible.”

                                          Finally and far more importantly, para 21 which is the concluding para concludes by saying that, “Therefore, in exercise of the power vested in this Court under Article 142 of the Constitution, we read down sub-rule 21 of Rule 115 and direct that sub-rule 21 of Rule 115 shall be interpreted and understood to read that no motor vehicle conforming to the emission standard Bharat Stage-IV shall be sold or registered in the entire country with effect from 01.04.2020.”

                                         All said and done, it is a landmark and laudable judgment which must be earnestly implemented in letter and spirit. We all are directly and deeply impacted by the impact of increasing pollution. We are already behind European and other countries as has been noted by Apex Court also. So, it brooks no more delay! The Apex Court stands fully justified in setting a deadline on sale of BS-IV vehicles and it also very rightly observed that health of teeming millions will have to take precedence over greed of a few auto makers!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.
It has to be exclaimed with exuberance right at the outset that in a landmark judgment titled Arjun Gopal and others v Union of India and others in Writ Petition (Civil) No. 728 of 2015 with Writ Petition (Civil) No. 891 of 2016, Writ Petition (Civil) No. 895 of 2016, Writ Petition (Civil) No. 899 of 2016  and Writ Petition (Civil) No. 213 of 2017 delivered on October 23, 2018, the Supreme Court has passed a string of landmark directions which are certainly laudable and deserves to be implemented in totality. This landmark judgment was authored by Justice AK Sikri for himself and Justice Ashok Bhushan. No doubt, this landmark judgment will go a long way in ensuring that the environment is not slaughtered mercilessly by polluting it mercilessly!
                             Needless to say, this landmark judgment gets going by first and foremost pointing out that, “Writ Petition (Civil) No. 728 of 2015 was filed on September 24, 2015 on behalf of three infants, who are made petitioners in this writ petition. Petitioner No. 1 and 2, on the date of filing of this writ petition were six months old and petitioner No. 3 was fourteen months old. This petition has been filed through their next friends, i.e. their fathers, who are concerned about the health of their children as they feel that due to the alarming degradation of the air quality, leading to severe air pollution in the city of Delhi (where these petitioners reside), the petitioners may encounter various health hazards. Poor, very poor or severe air quality/air pollution affects all citizens, irrespective of their age. However, claim the petitioners, children are much more vulnerable to air pollutants as exposure thereto may affect them in various ways, including aggravation of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment. The petition accepts that there are number of reasons which have contributed to poor air quality in Delhi and National Capital Region (for short, ‘NCR’). At the same time, it is emphasised that air pollution hits its nadir during Diwali time because of indiscriminate use of firecrackers, the chemical composition whereof increases harmful particulate matters such as PM2.5 or PM10 at alarming level thereby bringing the situation of ‘emergency’. The petitioners have, thus, prayed for direction to the official respondents to take possible measures for checking the pollution by striking at the causes of the pollution, which includes seasonal crop burning, indiscriminate dumping of dust/malba and other pollutants, etc. The prayer also includes banning the use, in any form, of firecrackers, sparkles and minor explosives, in any form, during festivals or otherwise.”
                                             Simply put, we thus see here that the petitioner makes a strong case for banning the use in any form of firecrackers, sparkles and explosives, in any form, during festivals or otherwise as it has a very deleterious impact on the health of people especially children. It may be noted that the Bench of Justices AK Sikri and Ashok Bhushan had reserved its verdict on August 28 on the PILs filed by kid petitioners – Arjun Gopal, Aarav Bhandari and Zoya Rao Bhasin who were all aged between three and four years. Their lawyer Gopal Sankaranarayanan had sought a complete ban on sale, purchase and transportation of crackers.
                                      Truth be told, para 23 minces no words in stating clearly and convincingly that, “It can be discerned from the above that the air quality had worsened during Diwali. There were more patients with symptoms of eye, increased coughing and patients with high metal levels in urine. Even noise level had increased. These are the adverse impacts of firecracker bursting, though the study mentions that statistically it was not a significant increase.”
                                      To put things in perspective, para 42 then spells out quite clearly and categorically that, “We are of the opinion that the aforesaid suggestions strive a nice balance between the two competing interests. We accept the aforesaid measures as suggested by the Union of India and direct the Union of India and other concerned authorities to implement the same with immediate effect. In view thereof, following specific directions are issued:
(i)                         The crackers with reduced emission (improved crackers) and green crackers, as mentioned in Suggestion Nos. II and III above only would be permitted to be manufactured and sold.
(ii)                      As a consequence, production and sale of crackers other than those mentioned in Suggestion Nos. II and III is hereby banned.
(iii)                   The manufacture, sale and use of joined firecrackers (series crackers or laris) is hereby banned as the same causes huge air, noise and solid waste problems.
(iv)                   The sale shall only be through licensed traders and it shall be ensured that these licensed traders are selling those firecrackers which are permitted by this order.
(v)                      No e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders and affect online sales. Any such e-commerce companies found selling crackers online will be hauled up for contempt of court and the court may also pass, in that eventuality, orders of monetary penalties as well.
(vi)                   Barium salts in the fireworks is also hereby banned.
(vii)                PESO is directed to review the clinical composition of fireworks, particularly reducing Aluminium content, and shall submit its report in respect thereof within a period of two weeks from today. For undertaking this exercise, PESO would also associate FRDC.
(viii)             Even those crackers which have already been produced and they do not fulfill the conditions mentioned in Suggestion Nos. II and III above will not be allowed to be sold in Delhi and NCR.
(ix)                   PESO will ensure fireworks with permitted chemicals only to be purchased/possessed/sold/used during Diwali and all other religious festivals, of any religion whatsoever, and other occasions like marriages, etc. It shall test and check for the presence of banned chemicals like Lithium/Arsenic/Antimony/Lead/Mercury.
(x)                      PESO will ensure suspension of the licenses of manufacture of such fireworks items and appropriate disposal of such stock.
(xi)                   PESO will ensure that only those crackers whose decibel (sound) level are within the limits are allowed in the market and will ensure to take action by suspending the licenses of the manufacturers on such violations and disposal of such lots. To add to it, as mentioned in the order dated September 12, 2017, the directions issued and restrictions imposed in the order passed by this Court on July 18, 2005 in Noise Pollution (V) shall continue to be in force.
(xii)                Direction Nos. 4 to 9 and 11 contained in the order dated September 12, 2017 shall continue to operate and are reiterated again.
(xiii)             Extensive public awareness campaigns shall be taken up by the Central Government/State Governments/Schools/IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 50 of 54 Colleges informing the public about the harmful effects of firecrackers.
(xiv)             On Diwali days or any other festivals like Gurpurab etc., when such fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. On Christmas even and New year eve, when such fireworks start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.
(xv)                The Union of India, Government of NCT of Delhi and the State Governments of the NCR would permit community firecracking only (for Diwali and other festivals etc. as mentioned above), wherever it can be done. For this purpose, particular area/fields would be pre-identified and predesignated by the concerned authorities. This exercise shall be completed within a period of one week from today so that the public at large is informed about the designated places one week before Diwali. The areas designated now for the purpose of Diwali shall be valid for community fire cracking on other occasions/festivals as well, as mentioned above. Even for marriages and other occasions, sale of improved crackers and green crackers is only permitted. Insofar as other States are concerned, an endeavour shall be made by them also to explore the feasibility of community fire-cracking. However, it is made clear that Direction No.(xvi) pertaining to the duration within which fireworks can take place on all such occasions would be applicable throughout India. Similarly, Direction No. (xiii) for extensive public awareness campaigns is also a pan India direction.   
(xvi)             All the official respondents, and particularly the Police, shall ensure that fireworks take place only during the designated time and at designated places, as mentioned above. They shall also ensure that there is no sale of banned firecrackers. In case any violation is found, the Station House Officer (SHO) of the concerned Police Station of the area shall be held personally liable for such violation and this would amount to committing contempt of the Court, for which such SHO(s) would be proceeded against.
(xvii)          CPCB and respective State  Pollution Control Boards/Pollution Control Committees (SPCBs/PCCs) of the States and Union Territories shall carry out short-term monitoring in their cities for 14 days (commencing from 7 days prior to Diwali and ending 7 days after Diwali) for the parameters namely, Aluminium, Barium, Iron apart from the regulatory parameters against the short-term Ambient Air Quality Criteria Values (AAQCVs) proposed by CPCB with regard to bursting of firecrackers. This will help in generation of data on pollution caused by the bursting of firecrackers and would be helpful for regulation and control quantity of Aluminium, Barium and Iron used in the manufacture of firecrackers.”
                                                        To be sure, it is then observed in para 43 that, “One clarification needs to be given at this stage. Our discussion pertaining to the arguments based on Article 19(1)(g), Article 25 as well as the argument of loss of sustained revenue and unemployment, in case the manufacture and sale of the firecrackers is totally banned, is prima facie and we have not given our conclusive determination. It is because of want of detailed studies on various aspects which have been mentioned and taken note of during discussion in this order. However, we also make it clear that, prima facie, we do not find much merit in these arguments for which we have given our reasons in brief.”
                                                 In essence, para 44 then specifies that, “Having regard to the overall circumstances, we have decided that, for the time being, a balanced approach to tackle this problem is needed, which may take care of the concerns of both the parties and, at the same time, provide a reasonable and adequate solution. When the picture would become clearer after the requisite studies/research is undertaken, more stringent measures can be adopted in future if the situation so warrants.” Finally, it is observed in para 46 that, “The writ petition be listed on December 11, 2018.”
                                                   All said and done, this landmark judgment will certainly profusely check the noise pollution as well as the air pollution caused by fire crackers and other pollutants. It is also made clear that once the picture becomes clear after the requisite studies/research is undertaken then more stringent measures would be adopted in future if the situation so warrants so that no one dares to break the rules made in this regard! It is certainly a must read judgment for everyone!   
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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