It is most shocking to learn that the stone pelters in Kashmir are so encouraged by the green signal given collectively by the Prime Minister of India – Narendra Damodardas Modi and Chief Minister of Jammu and Kashmir – Mehbooba Mufti Sayyed that now they have started targeting even school children in the most ruthless and dastardly manner! As if this is not enough, they are hitting children so ruthlessly that they die either on the spot or after some time! As I am writing this piece, news is pouring in different news channels that stone pelters have attacked school bus in Shopian most fiercely and ruthlessly so that they are either killed or become blind or lose their vital body organs!

                                        Needless to say, many children have been injured badly! Some children are battling for their life in hospitals even as stone pelters are fully confident and happy that there is one Modi and one Mehbooba who will always be there to ensure that cases are withdrawn against them even if they kill anyone or maim anyone in Kashmir and all this will then be justified in the name of “healing touch” policy! Should we be proud of such Modi and Mehbooba? Are they following the right path?

                                        What is worst is that both Modi and Mehbooba have taken the common stand that, “India should be proud that cases against stone pelters about 10,000 of them have been withdrawn and even if they again indulge in stone pelting then again they will follow the same healing touch policy of embracing them with open arms”! Even Omar Abdullah who is the former Chief Minister of Jammu and Kashmir has raised questions over Mehbooba’s stupid and shameless policy of withdrawing cases against stone pelters which should never have been withdrawn at the first place but Modi still stands solidly behind Mehbooba which alone explains why he says nothing when cases are withdrawn against stone pelters and instead FIR are lodged against soldiers when they retaliate in self-defence! This is most reprehensible but how is Modi or Mehbooba bothered!

                                      As it turns out, Modi is only and only interested in his foreign trips and when in India doing “Mann ki Baat” or some other Baat and Mehbooba ordering withdrawing of cases against stone pelters with the tacit approval of Modi every now and then! For how long? How long will innocents be allowed to suffer at the hands of stone pelters and how long will Modi and Mehbooba ensure that stone pelters live in free air and not in jail which is the right place for them?

                                        Let me ask a very serious question: Is some foreign power guiding Modi and Mehbooba? Also, let me ask some other troubling questions:  Are Modi and Mehbooba being remote controlled by some foreign power? Why the hell then is strict action not taken against stone pelters? Why are they allowed to crush law under their feet and injure or kill anyone whom they like and yet roam scot free?

                                           As if this is not enough, let me also ask here: Why Modi allowed Mehbooba to withdraw cases against 10,000 stone pelters? Why Modi allows Mehbooba to allow police to file FIR against soldiers who fire in self defence and face all sorts of legal action for just doing their duty? What precedent is Modi and Mehbooba setting for the future?

                                            Let me also ask some multiple questions here: Why Modi and his party BJP keep bragging that we never appease anybody but in reality indulge in worst appeasement of stone pelters directly funded from Pakistan and other rogue nations from abroad? How can criminal cases against stone pelters be withdrawn so easily? Why Supreme Court too never takes cognizance of it and orders criminal action against stone pelters against whom Modi and Mehbooba happily withdraw cases in Kashmir? It must act now if it really wants people to respect it really!

                                          Can anyone tell me: Why only one politician in India – Omar Abdullah raises his voice against withdrawal of cases imposed on stone pelters by Mehbooba and even the PM Narendra Damodardas Modi still backs Mehbooba and refuses to order any strict action against stone pelters? Why is Modi and Mehbooba so soft towards stone pelters? Why is it not realized that if this stone pelting is not controlled in time then India as a country will plunge into chaos with no one respecting law and people will openly start taking law in their own hands as most unfortunately we are seeing also many times?            

                                     Truth be told, law breakers and criminals must be treated like lawbreakers and criminals and not like VVIPs or Ministers! They must be punished for their misdeeds and not rewarded as most unfortunately we see Mehbooba doing this right in front of our eyes by withdrawing cases against 10,000 stone pelters and Modi too fully backing it tacitly! They must be held accountable for what they have done and should not be allowed to go away lightly at any cost under the garb of “healing touch” policy!

                                     Let me also ask here:  Why should cases be withdrawn against them who without any provocation start pelting stones and don’t spare even small harmless and armless children returning or going to school? Do they really deserve it? What message is being sent to law breakers, stone pelters and vandalisers?

                                      Let me also ask here: Why are they being openly abetted by the PM of India Narendra Damodardas Modi and Jammu and Kashmir CM Mehbooba Mufti Sayyed to indulge in more stone pelting by allowing the withdrawal of cases against about 10,000 stone pelters at one go? At the risk of repetition, it has to be underscored once again that cases under no circumstances should ever be withdrawn against stone pelters! They must be made to pay for what they have done and under no circumstances should they be ever allowed to go scot free! Only then will the “rule of law” prevail which cannot be allowed to be given the short shrift under any circumstances!

                                          What is happening now under the nose of Modi and Mehbooba has never happened before! Stone pelters who injure and kill others not sparing even school children are being rewarded openly by allowing cases to be withdrawn against them proudly! If this continues unabated and unchecked then who is going to respect law?

                                                There can be no gainsaying the indisputable and unpalatable truth that both Modi and Mehbooba are to be blamed for giving a long rope to stone pelters and they cannot just shrug it off by forwarding one justification or the other for the current fiasco! They have failed completely to act tough against stone pelters which is most shameful and has only encouraged them to further indulge in more such attacks as cases are withdrawn against them very quickly at the order of Mehbooba government backed by Modi government in Centre! They have allowed these stone pelters to hold our entire legal system to ransom by doing freely what they want to do only to see that cases are withdrawn against them by Jammu and Kashmir State government headed by Mehbooba Mufti Sayyed with full backing of Centre headed by PM Narendra Damodardas Modi! Disgraceful!

                                         Our reputation of legal system in implementing the rule of law lies in tatters! But how does it affects Modi and Mehbooba? Both of whom are more concerned about stone pelters!

                                           This has to change if India is to survive as a nation with reputation of being a country with a “rule of law” and not a country with a “rule of stone pelters”! How can this be done? Very simple!

                                        Let the law be allowed to take its own course in case of stone pelters without allowing them to get away easily! They deserve no leniency of any kind and must be made to face the music of the law for what they did without thinking about the catastrophic consequences of their dastardly acts! Only then will a loud, clear and very strong message go out to all stone pelters that they would not be saved by anybody if they dare to ever indulge in stone pelting!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.   
Let me start rolling ink from my pen by first and foremost pointing out that in a country where undertrial prisoners make up majority of the already overcrowded jails, a recent landmark decision of the Delhi High Court which each and every Indian must read as it has set in motion a reform that is preventing many of the undertrials languishing unnecessarily in jails. In December 2017, a PIL had brought up the issue of over 300 undertrials, who despite being granted bail by courts were languishing in capital’s jails due to their inability to furnish bail bonds and surety bonds. This is certainly most shocking and reprehensible!
                To put things in perspective, a Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar of Delhi High Court in a significant ruling titled Ajay Verma v Govt of NCT of Delhi W.P.(C) 10689/2017 dated March 8, 2018 said that it was the responsibility of every Judge issuing an order of bail to monitor its execution and enforcement. It also noted that the detailed order was recorded by us on 15th December, 2017 noting the judicial precedents on the subject and finding that the directions of the Supreme Court as well as this court regarding release of prisoners, who were unable to furnish bail bond on account of financial penury or non-availability of persons who are willing to stand surety on their behalf were not being complied with. The Delhi High Court while also underscoring prisoners rights very rightly held that, “The importance of the rights of prisoners under Article 21 of the Constitution of India, who have been accused of even serious crimes, cannot be overlooked under any circumstance.” All lower courts must always take this into account as pointed out by Delhi High Court while issuing an order of bail if it wants to avoid getting a rap on its knuckles!
                                        To be sure, the Delhi High Court recently rapped Districts and Sessions Judges for their non-compliance with its earlier order whereby it had directed them to conduct a “risk assessment” of cases where undertrials have been unable to secure release from jail despite being granted bail. The Bench of Delhi High Court noted with regret that despite its earlier order, it hasn’t been informed whether any steps have been taken to release prisoners who have been unable to comply with the bail conditions imposed on them. It had observed that failure of a court in ensuring that an order of bail was complied with could lead to departmental action against the concerned judicial magistrate.
                                         As it turned out, the Delhi High Court then directed the Registry to return these reports with strict direction to the District & Sessions Judges to comply with its orders. It also demanded consolidated reports under the signatures of the District Judge, Headquarters for court related measures and the Director General, Prison for measures implemented at Tihar jail. All this clearly imply how serious Delhi High Court is on the rights of undertrials who keep languishing in jail despite being granted bail!
                     It had the desired impact also. As the lower judiciary judges, jail authorities and State legal service authorities swung into action, around 200 undertrial prisoners were released. All credit for this goes to the Delhi High Court who gave this landmark judgment. No one can take away the credit from them as they set in motion what was earlier going on unnoticed!
                      Truth be told, most of these undertrial prisoners were either unable to furnish bond amount or give sufficient surety vis-à-vis a person who takes responsibility for another’s performance of an undertaking such as appearing in court. Among those who stood to gain from this was Shahrukh who facing trial in an assault case, was directed to be released on bail in October 2017. But, as his mother was unwell, he was not able to fulfil the bail condition. He was subsequently released in January.
                 Going forward, another undertrial prisoner in a theft case, Yogeshan had secured a bail order in September 2017. He had only an aged mother in the family who was unable to stand as surety. He has since been released on bail.
                  It must be acknowledged and admired that the Delhi High Court passed this landmark direction on the PIL of advocate Ajay Verma who took painstaking efforts to ensure that this could happen in reality by brilliantly arguing the abhorrent manner in which the undertrials were languishing in jail despite being granted bail. He told journalists that the case of each of the undertrial prisoners who have secured bail has been taken up by the authorities on priority after the court order. He also said that though a large number of undertrial prisoners have been released, many more remain.
                      Very rightly, he also singled out poverty and financial inability of the relatives to furnish surety bonds or local sureties as the prime reason behind them languishing in jail despite being granted bail! This is what is most deplorable! To substantiate his valid point, he relied on several precedents such as the Apex Court judgment in the case of Moti Ram & Ors v State of Madhya Pradesh (1978) 4 SCC 47 in order to highlight the unfavourable comments rendered against imposition of such conditions.
                                         To tell the truth, Shivnath, who is facing trial in a robbery case was granted bail over four months ago, but has not been released yet. The prime reason being that his family lives in Assam and there was no one in Delhi to give surety. Another undertrial Sonu, facing trial in a separate robbery case, was granted bail as far back as June 2017 but continues to be in jail as he has lost contact with his family in Bihar and there is no one to furnish a bail bond of Rs 15,000.  
                        Be it noted, advocate Ajay Verma also said that a risk assessment of these undertrial prisoners will be conducted on a case-by-case basis, relying on which they will either be released or denied bail. The Delhi government in a status report to the High Court has said that a mechanism is being developed by the computer team of the Delhi District Courts to share the bail orders and the release warrants with the Delhi police and jail authorities.
                                           It said categorically that, “The jail authorities cannot state at this stage about receiving of all bail orders from the concerned courts unless having knowledge of day-to-day courts case proceedings in respect of prisoners.” It also added that, “At present we are receiving true hard copies of bail orders in respect of prisoners from the courts.” There is also work on developing software which will facilitate sharing real time information amongst the police, judiciary and the jail authorities. For this, the New Delhi District has been taken as a pilot area.
                                       Simply put, under the system, as and when any FIR is registered and the date regarding complainant, accused, offence and other details are captured, it will be shared with the court system as well as with the jail authorities. Similarly, as and when any accused is sent to judicial custody, information in this regard will be shared with the jail authorities and Delhi Police on a real-time basis. This is certainly a laudable step in the right direction!
                      Needless to say, efforts are also being made to create an alert in the National Prisons Information Portal (NPIP) regarding the list of inmates who was granted bail but has been in jail due to being unable to furnish the surety provision. As per Prison Statistics 2015, out of the total 4,19,623 inmates in various jails across the country, 2,82,076 or 67.2% were undertrial prisoners. Delhi had 10,879 undertrial prisoners which made up 76.7% of the total prison inmates strength that year.
                      It also cannot be lost on us that the pan-India figure also revealed that a total of 11,451 undertrial prisoners were lodged beyond three years and upto five years and another 3,599 undertrials were detained in jails for five years or more in the country. The Capital’s jail had over 5,000 undertrial prisoners with more than six months of period of detention. Prompt and effective steps must be taken to ensure that the strength of undertrial prisoners languishing in different jails across the country is considerably brought down.
                   Without mincing any words, the Delhi High Court has noted that it will also be the responsibility of prison authorities to promptly bring any instance of a prisoner being unable to secure release from prison despite an order of bail having been passed in his favour to the notice of the trial courts as well as the concerned Secretary of the District Legal Services Authority. The Delhi High Court has explicitly stated that, “The trial courts should be not only sensitive but extremely vigilant in cases where they are recording orders of bail to ascertain the compliance thereof.” The Director (Academics) of the Delhi Judicial Academy has been directed to design a training module and schedule of trainings relating to matters of bail and release of prisoners for the trial court judges.
                      Of course, in its order dated 15 December 2017, the Delhi High Court had also examined various precedents wherein Courts have deprecated such practices and had opined that such pronouncements are not being complied with. It had then highlighted the need for a risk assessment of such cases as has also been mentioned above. The Court now opined that its duty does not end with such orders of assessment and that the matter needs to be “continuously reviewed”, observing that, “We are of the view that the solemn duty of every court does not come to an end with mere passing of an order, more so, when it is relatable to the rights under Article 21 of the Constitution of India affecting the life and liberty of any person. This is more so when the court is concerned with any person lodged in prison. Therefore, the responsibility and duty of every court passing an order of bail and to ensure that the same is complied with has to be kept on the highest pedestal and undertaken in right earnestness.”
                                              Finally and most importantly, the Delhi High Court in this landmark judgment laid down the following guidelines: -
1.  The trial courts should not only be sensitive but extremely vigilant in cases where they are recording orders of bail to ascertain the compliance thereof.
2.  When bail is granted, an endorsement shall be made on the custody warrant of the prisoner, indicating that bail has been granted, along with the date of the order of bail.
3.  In case of inability of a prisoner to seek release despite an order of bail, it is the judicial duty of all trial courts to undertake a review for the reasons thereof.
4.  Every bail order shall be marked on the file.
5. It shall be the responsibility of every judge issuing an order of bail to monitor its execution and enforcement.
6.  In case a judge stands transferred before the execution, it shall be the responsibility of the successor judge to ensure execution.
7.  It shall be the responsibility of prison authorities to promptly bring any instance of a prisoner being unable to secure release from prison despite an order of bail having been passed in his favour to the notice of the trial courts as well as the concerned Secretary of the District Legal Services Authority.
8.  All trial courts passing an order of bail shall maintain a record of the following:
a)  date of the order and conditions imposed therein.
b) date on which the conditions were satisfied.
c)   date of release of the prisoner from the jail.
d) if conditions not satisfied, the date on which the review and risk assessment were taken upon an interview of the prisoner concerned.
e)  date and terms of the order passed upon the review.
f)    date of ultimate release of the prisoner.
9.  A monthly statement on these aspects shall be sent to the concerned District Judges, who would undertake an exercise of verification of the information furnished by the court concerned.
10.  This information shall also be sent to the District Judge as well as Director General (Prisons) who would undertake an exercise of verification on a quarterly basis.
11.   A report regarding the orders of bail and the release of prisoners shall be sent on quarterly basis by the District Judge as well as Director General (Prisons) to the Registrar General of this Court.
12. The panel advocates deputed by the Legal Services Authority in the respective criminal courts would be responsible to keep themselves updated, inter alia, on the basis of above-mentioned record and report and move appropriate application in concerned Case qua concerned accused respecting whose further orders are required to be passed to secure release from custody pursuant to the bail order.
13. The training and sensitization of judges on these aspects shall be taken expeditiously by the District Judges in conjunction with the Delhi judicial Academy.
                        Besides, it also directed the Director (Academics) of the Delhi Judicial Academy to design a training module on bail and release of undertrials by lower Court Judges and a schedule for the same. District Judges have been made responsible to ensure that such trainings are in fact carried out. A compliance report has been directed to be filed by all District Judges; the Director (Academics), Delhi Judicial Academy; Member Secretary, DSLS and the Director General, Prisons, Delhi. Also, the Delhi High Court made it clear that the above directions as well as the directions made by us on 15th December, 2017 shall be strictly complied with. In addition, it also directed that, “The concerned District Judge shall place before this court a status report regarding the steps which were required to be taken in terms of the minutes dated 10th January, 2018, as noted above, within two weeks from today”. The matter has now been listed on May 1.
                  In hindsight, it is the poor undertrial prisoners who keep rotting and suffering in jail despite getting bail who will stand to benefit most from this landmark order as they are unable to furnish sureties. All High Courts in India must follow this extremely laudable judgment of the Delhi High Court to ensure that the undertrial prisoners get what is their legal right and they don’t just keep rotting in jail even after getting bail! This is the crying need of the hour also!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut  - 250001, Uttar Pradesh.
Let me start flowing ink from my pen by first and foremost pointing out that the Supreme Court in the landmark case of Hussain and Anr v Union of India on March 11, 2018 minced no words in making it absolutely clear that lawyers strike and suspension of court work is illegal. We know it all too well that how especially in lower courts strikes are called frequently on one pretext or the other. It is the undertrial prisoners who bear the maximum brunt because of repeated strikes and are compelled to further rot in prison till the lawyers call off their strikes.
                            It has been seen time and again that in lower courts especially the lawyers go on strike whenever any lawyer dies after a condolence resolution is passed. The Bench suggested that condolence references can be once in while periodically say once in two/three months and not frequently. The Supreme Court has held that suspension of court work or strikes are clearly illegal and it is high time that the legal fraternity realizes its duty to the society which is the foremost.  
                              While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Bench of Apex Court comprising of Justice AK Goel and UU Lalit observed this while issuing guidelines to tackle the pendency of cases. It was pointed out by the Bar that obstruction of court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references were matters of great concern. The Bench suggested that in view of judgment of this Court in Ex Captain Harish Uppal versus Union of India (2003) 2 SCC 45, such suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realizes its duty to the society, which is the foremost. It was also held that, “The condolence references can be once in while periodically say once in two/three months and not frequently”.  
                               For my esteemed readers exclusive indulgence, let me also inform them that the Bench observed that “Hardships faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on undertrials in custody on account of such avoidable interruptions of court proceedings was a matter of concern for any responsible body of professionals and they must take appropriate steps.” The Apex Court also minced no words in making it absolutely clear that, “In any case, this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Court and ways and means ought to be found out to tackle this menace.”  
                                      To put things in perspective, the Bench of Apex Court also directed that the High Courts may take such stringent measures as may be found necessary in the light of judgment of Ex Captain Harish Uppal Vs Union of India. In this landmark case of Harish Uppal in 2002, a three-Judge Bench of the Supreme Court held categorically that, “Lawyers have no right to go strike or give a call for boycott, not even on a token strike.” It was also held in this case that, “Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.”
                                        It was also held by the Apex Court that, “Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time. Chief Justices and Chief Ministers have resolved that all cases must be disposed of within five years which by any standard is quite a long time for a case to be decided in the first court. Decision of cases of undertrials in custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings. Lack of infrastructure is another handicap. Inspite of all odds, determined efforts are required at every level for success of the mission. Ways and means have to be found out by constant thinking and monitoring. Presiding Officer of a court cannot rest in the state of helplessness.”
                                   In a nutshell, this judgment is being hailed for strongly coming out against repeated strikes by lawyers. It empowers the concerned High Courts to take such stringent measures as may be found necessary in the light of the landmark judgment in Uppal case! One fervently hopes that this judgment will go a long way in checking frequent strikes by lawyers which is the primary object of this landmark judgment!      
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
 In a new low that has tormented the gentleman game of cricket in Australia, distraught former Australia cricket captain Steve Smith was in tears as he accepted full responsibility for a ball-tampering scandal that has shaken the sport. Australia has always dominated the game of cricket and remains in news for winning matches against one team or the other. But this time it was in news for entirely different reasons.
                                      In an unprecedented development, Steve Smith and David Warner were stripped from their roles as Captain and Vice-Captain and banned from all international and domestic cricket for a year over their behaviour during the third Test against South Africa in Cape Town. Even opening batsman Cameron Bancroft was suspended for nine months. David Warner was charged by Cricket Australia with developing the plan to use sandpaper to alter the ball to their bowlers advantage and instructing Bancroft to carry it out. Cameron Bancroft was caught tampering with the ball.
                                              In a statement, Cricket Australia announced the sanctions imposed on the three players, who were ordered to leave for home on March 27 midway through the ongoing Test series against South Africa. Following Smith’s and Bancroft’s admission to ball tampering in the third Test, the ICC banned the Australian captain for one Test while the latter was fined 75 percent of his match fee. But a huge public outcry in Australia compelled Cricket Australia to hand a much harsher punishment. The Cricket Australia statement read as follows: “Steve Smith: suspension of 12 months from all international and domestic cricket. David Warner: suspension of 12 months from all international and domestic cricket. Cameron Bancroft: suspension of 9 months from all international and domestic cricket. All three players will, however, be permitted to play club cricket to maintain links with the cricket community.”
                                            Going forward, Cricket Australia while cracking the whip said that Steve Smith and Cameron Bancroft will not be considered for team leadership positions until one year after the end of their ban, while David Warner will never be an option for captaincy role.” It also said that, “Any consideration of future leadership would be conditional on acceptance by fans and the public, form and authority among the playing group. David Warner will not be considered for team leadership positions in the future.” In other words, the chances of David Warner becoming the captain of some future cricket team has been permanently sealed!
                                      Truly speaking, Cricket Australia Chairman David Peever said the rather stringent penalties are a reflection of Australia’s current outrage at the action of the players. Peever while explaining the gravity of the situation said that, “These are significant penalties for professional players and the Board does not impose them lightly.” In the same vein, Peever also expressed optimism saying that, “It is hoped that following a period of suspension, the players will be able to return to playing the game they love and eventually rebuild their careers.”
                                      It must be brought out here that the CEO of Cricket Australia James Sutherland too echoed the sentiment of Peever. He said that, “I am satisfied that the sanctions properly reflect a balance between the need to protect the integrity and reputation of the game and the need to maintain the possibility of redemption for the individuals involved, all of whom have learned difficult lessons through these events.”
                                          In a major turn of events, the Australian cricket team lost a major sponsor and a host of large companies tore up branding deals with individual players as the fallout of a ball-tampering scandal tore into the financial core of the country’s favourite pastime. Fund manager Magellan Financial Group Ltd binned a three-year team naming rights deal which was only seven months old while sports apparel giant ASICS Corp and Commonwealth Bank of Australia joined other firms in dropping players caught in the scandal which has shaken cricket. All this will certainly adversely affect Australian cricket to some extent and it will take quite some time for Australia to come out of it!
                                      Back home, the Committee of Administrators (CoA) on March 28, 2018 banned Steve Smith and David Warner from participating in the 2018 Indian Premier League (IPL). The BCCI, in a press release, said that, “The CoA took cognizance of the developments in the ball tampering incident involving Cricket Australia contracted cricketers – Steve Smith, David Warner and Cameron Bancroft. The CoA, in consultation with IPL Chairman Rajeev Shukla, acting President CK Khanna and acting Secretary Amitabh Choudhary, has decided to ban Smith and Warner with immediate effect from participation in IPL 2018.” The release also added that, “The BCCI hopes that the cricketers participating in the IPL hold the highest regard for the Spirit of Cricket and Code of Conduct for Players and Match Officials.”    
                                        Simply put, Rajeev Shukla who is IPL Chairman on this key issue made it amply clear that, “Cricket Australia has banned Steve Smith and David Warner and we are also barring these two players from this year’s IPL. The replacements will be made available to Rajasthan Royals and Sunrisers Hyderabad. We did not take any decision in haste, it was a well thought out decision.” No doubt, in a double blow for the two players Smith and Warner, they were also barred from this year’s IPL. This came after the Cricket Australia sanctions and their forced stepping down as captains of Rajasthan Royals and Sunrise Hyderabad respectively. The third banned player Cameron Bancroft does not play in the IPL and so he is not affected in any manner by decision of IPL.
                                            As things stand, even an emotional Australia cricket coach Darren Lehmann decided to quit finally and said he was stepping down after this week’s test match against South Africa due to abuse he and his family received over a ball-tampering scandal that has rocked the sport. His voice choking with emotion at a news conference on the eve of the Johannesburg test, the last of the four-match series against arch rivals South Africa, Lehmann said that his decision to quit was tough but voluntary. He said very emotionally that, “My family and I got a lot of abuse over the last week. Speaking to my family, it’s the right time to step away.” Lehmann is himself a burly former Test player known well for his no-nonsense approach on and off the field.
                                      Truth be told, Lehmann conceded that he should take some blame for the aggressive culture that has developed in the Australian team during his team as coach. He said that, “Ultimately I’m responsible for the culture of the team. Been thinking about my position for a while, despite telling media yesterday that I’m not resigning.” The real fault is not of Lehmann but of Australian cricket culture which has developed over the years.
                                          Needless to say, we have seen before our own eyes how Australian cricketers used to start fighting with Indian cricketers on very small pretext but it was Indian players who used to receive the wrong end of the stick always! But now things have changed! The real face of Australian cricketers stands exposed! The Australian players always want to win somehow no matter if some rules have to be broken but earlier media always sided with them but now finally their real face stands exposed completely before the people!    
                                       As it turned out, while being extremely disappointed at the disconcerting ball-tampering episode during the Australia-South Africa third Test in Cape Town that has rocked the cricket world, the Chairman of the ICC Shashank Manohar minced no words in putting forth his candid views that, “Every team wants to win, but players cannot use dubious methods to gain victory.” He also said that, “It is not in the spirit of the game. The ICC has taken a serious note of the events in Cape Town.” It was ICC which first imposed punitive actions on these 3 Australian players and then Cricket Australia too acted!
                                   It is noteworthy that when asked about the ICC’s plan of action, Manohar said that, “The ICC plans to put together a group of former players of impeccable reputation. This new panel will operate under the existing Code of Conduct, but (it) will be free to recommend punitive measures that it may deem fit. The penalty must be such that it deters all cricketers from indulging in such malpractices in future.” Manohar further revealed that, “The ICC would talk to former cricketers – who have been captains of their countries – Allan Border, Shauun Pollock, Anil Kumble, Mahela Jayawardene and Richie Richardson and ascertain their availability to perform the specific role.”
                                   Be it also noted, the ICC’s Code of Conduct for players and match officials have been put in place after consulting the Cricket Committee which actually outlined the classification of offences and punishments and on the Cricket Committee’s guidance, the ICC’s legal team drafted the regulations. This was considered necessary to ensure that errant players don’t take cricket for granted and face punishment for blithely disregarding the rules of the game and bringing disrepute not just for themselves and for their own nation but also for the whole game of cricket which is still held in highest esteem!            
                                        All said and done, the recent undesirable controversy has certainly tarnished the reputation of Australian cricketers. It will take a long time for cricketers of Australia to leave this shameful legacy behind! It is high time and even now it is not too late. They must evolve ways to prevent such unpalatable turn of events in the future on the cricket ground!
                                        In sum, the cricketers of Australia must admit that just winning the game of cricket by hook or crook had become a part of their culture! They were desperate to always somehow win the game! In the process, they gave a short shrift to all rules and regulations by which the cricketers are themselves bound which they cannot disregard under any circumstances!
                                     This is not the gentleman game that you resort to all sorts of tactics to somehow win the game! It will not do them or their country any good rather will tarnish their own image as well as the image of their own nation whom they represent so proudly just like we are seeing currently! They must imbibe some lessons from Indian cricketers who always play by the book and always behave most decently!
                                        Even in the past whenever Indian players had an argument with Australian cricket players they were themselves responsible for misbehaving with Indian players which they never admitted rather blamed Indian players themselves but now the whole world has seen the real face of Australian cricketers! Still it is not too late! A damage control exercise can be undertaken even now!
                                    It goes without saying that they must at least now take it as a compelling wake up call and reform themselves hugely so that they are not again a source of major embarrassment for their ownself as well as for their own country that is Australia! It is a herculean task for them but certainly not impossible! They must give it a try!     
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
It must be stated at the very outset that seven months after declaring the centuries-old practice of instant triple talaq or talaq-e-biddat in which Muslim men divorced their wives by uttering talaq three times in quick succession, the Supreme Court on March 26, 2018 decided to also examine the constitutional validity of much despised and anti-women reprehensible practices in the form of various types of marriages like polygamy, nikah halala, nikah misyar and nikah mutah among Muslims and referred the case to a Constitution Bench to adjudication. It is a national shame that Jawaharlal Nehru who was the first Prime Minister of India very rightly decided to ban polygamy and polyandry among Hindus even though Hindus had a tradition to marry many women with no maximum cap imposed like Lord Krishna had 16,108 wives, Dashrath who was father of Lord Ram had 3 wives, Shivaji who created Maratha empire had too many wives and his chief queen was Sai Bai Nimbalkar except for very few exceptions like Lord Ram and similarly women too could marry as many husbands as they liked like Draupadi had five husbands famously known as Pandavas  but no Prime Minister from Nehru to Modi could ever dare to ban polygamy among Muslims even though polyandry is not permitted among Muslims. One can understand that Nehru didn’t want to hurt Muslims as they were reeling from the fresh wounds of partition but what about all other Prime Ministers who followed him till now including incumbent Narendra Modi who keeps taking potshots at Nehru but even after completing 4 years in office has never summoned the courage to ban polygamy among Muslims which is a derogatory malpractice which considerably reduces the pride of women and status! The affected Muslim women had no option but to approach court as last refuge as all governments from 1947 to 2018 have failed them miserably by setting aside all deplorable practices which downgraded women and subjected them to all forms of repression!  
                                              Nor has Modi summoned the courage to create a high court bench in any of the 75 districts of UP even though Nehru created a bench in Lucknow way back in 1948 on July 1 but even after 70 years no PM could summon the courage to create even a single bench in UP which was slammed by former UN Secretary General Ban ki moon as “rape and crime capital” of India! UP has maximum population more than 22 crore, maximum MPs, maximum MLAs, maximum villages more than 1 lakh, maximum towns, maximum PM including Modi, maximum pendency of cases more than 10 lakh whereas other states have less than 2 lakh yet states like Maharashtra, Assam have 4 high court benches, Karnataka has 3 high court benches, Madhya Pradesh has 2 but UP has least only one very near to Allahabad at Lucknow created way back in 1948! Not just this West UP owes more than half of pending cases of UP still has no high court bench even though lawyers of 26 districts went on strike for 6 months for 3 times as in 2001, for 3 to 4 months as in 2014-15, for one month as in 2010 and every Saturday since May 1981 till now still no bench and people have to travel whole night about 700-800 km all the way to Allahabad as there is no bench here! Allahabad High Court is biggest court in whole of Asia and also oldest which completed 150 years in 2016 yet it has just one bench and that too very near to Allahabad at Lucknow and nowhere else!
                                           Why talk about just Modi? Even former PM Mrs Indira Gandhi could not dare summon the courage to create a high court bench in any of the 3 places where Justice Jaswant Singh Commission recommended the creation of high court bench in UP at Agra, Dehradun and Nainital even though on its recommendations benches were created at Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Jalpaiguri in West Bengal! To change what Nehru could not do is considered very difficult next to impossible!
                                                 This alone explains that status quo continues from 1948 to 2018 in UP and people of Uttarakhand had to agitate for separate state as the people there had to travel thousands of kilometers all the way to Allahabad to attend court hearings and suffer loss of money, time etc but no PM had the guts to do what Nehru couldn’t! West UP still has no high court bench and incumbent PM Modi too watches like a mute spectator!  
                                        As if this was not enough, Article 370 of Constitution was not there originally in Constitution prepared by Dr BR Ambedkar as Ambedkar did not favour it but after his death it was inserted in Constitution not by Constitutional Amendment but in form of Presidential order which could be set aside by any later PM but again no PM summoned the courage to undo what Nehru did! It is this Article 370 that prevents the integration of Jammu and Kashmir with India and forbids Indians from other parts to purchase any land there or settle there yet no PM dared to set it aside including PM Modi whose party right from its inception has opposed it tooth and nail! Even former CJI JS Khehar had questioned special status of J&K when he asked that, “How can one country have two flags, two Constitutions and two sets of laws?” but it is still kicking! Such is the charisma of Nehru!
                                   Article 35A was a provision that had been inserted in the Constitution through a “Presidential Order” in 1954 and it was not ratified by Parliament. There is an option with the Centre to ratify the provision by sending it to Parliament. But it has not been considered yet. It accords special privileges to Jammu and Kashmir citizens and empowers state legislature to frame separate law for state.
                                                     More to the point, Article 35A of the Constitution that envisages special rights and privileges to the “permanent residents” of Jammu and Kashmir is a provision that came into force in 1954 when the President used the powers vested on him by Article 370 to introduce the “Constitution (Application to Jammu and Kashmir) Order 1954”. It must be pointed out here that under the said provision, which appears in the Constitution as an “appendix” and not as an amendment to Article 35, all citizens from other parts of the nation are prohibited from acquiring immovable property in the state of J&K, taking up employment under the state government, availing of the state sponsored scholarship schemes or settling permanently anywhere in the state. Certain provisions deny property rights to a woman who marries a person not a “citizens” of Kashmir. According to the law, women lose rights over property and this also applies to her children. The woman also loses employment opportunities in the state. Is this not worst blatant discrimination but no PM till now including PM Modi has dared to even touch what Nehru brought in! Such is the charisma of Nehru!
                                             Dr BR Ambedkar wanted reservations only for 10 years for Scheduled Castes and Scheduled Tribes and Other Backward Classes but again Nehru wanted it to continue much longer! Once again, no PM including Narendra Modi has the courage to abolish reservations even after more than 70 years of independence! Such is the charisma of Nehru that no one can dare to change what he did even after more than 54 years of his death!
                                        Anyway, coming back to the main core issue, a Bench of CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud agreed with a plea that validity of the practices needed to be examined in the light of the right to equality and issued notice to the Centre, asking it to make its stand clear on banning them for being violative of constitutional provisions. The court passed the order on a batch of petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 for recognizing and validating the practice of Nikah Halala, Nikah Mutah and Nikah Misayar as well as polygamy. These forms of Muslim marriages and polygamy had been challenged along with triple talaq before the Supreme Court but the court had left it open for adjudication at a later stage.         
                                                          Senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayya and lawyer Gopal Sankaranarayanan told the Bench that the Constitution Bench which declared triple talaq invalid had not looked into the other practices whose legality have also been questioned. They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar were unconstitutional and should be declared illegal. It is imperative that we understand these practices one by one.
                                                              Polygamy means a husband marrying more than one women. In Nikah Halala, a Muslim woman who wishes to restore her marriage after divorce is required to first marry someone else and consummate the marriage before divorcing him to remarry her previous husband. Nikah Mutah prevalent among Shias means “pleasure marriage” which is a temporary marriage contract in which the duration of the marriage and the mahr must be specified and agreed upon in advance. It is a private contract made in a verbal or written format does not confer any right on the woman. Man have the right in this form of marriage to many any number of woman for a brief period!
                                          Now coming to Nikah Misyar. It is similar to Mutah marriage under which the husband and wife renounce several marital rights such as living together, the wife’s rights to housing and maintenance money and the husband’s right to home-keeping and access. Muslim Personal Law Board, in its affidavit in the triple talaq had termed such practices as “undesirable”. While declaring triple talaq invalid in August 2017, a five-Judge Constitution Bench had thus explained while it kept the focus on the triple talaq issue: “Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case, at the very outset, it was decided to limit the instant consideration to triple talaq. Other questions raised in the connected writ petitions, such as, polygamy and ‘halala’ (and other allied matters) would be dealt with separately.”
                                                      After going through the judgment, the Bench agreed with the submission of the petitioners and asked them to serve copy of the petitions to the Centre so that it could take a stand on the issue when the case would be taken up for consideration. The Bench minced no words in making it absolutely clear that, “Practices of Nikah Halala, Nikah Mutah, Nikah Misyar and polygamy interfere with the right conferred by Article 21 of the Constitution. By considering the woman an object of man’s desire, practices of Nikah Halala, Nikah Mutah, Mikah Misyar and polygamy cause gross affront to the dignity of women.”
                                                                The petition said the Muslim Personal Law allows a man to marry up to four wives, which it said “treats women as men’s chattel, and reduces their status to an object of desire to be possessed by men.” Not just this, men and women from other religions are tempted to convert into Muslim so that they can marry more than one spouse which only serves to vitiate the peaceful harmony among different religions and also population increases more rapidly as we are seeing also! India is on verge of overtaking China in next few years still can we allow such retrograde and discriminatory practices like polygamy and others to continue unabated and flourish in our society?
                                                      Can it be ignored that many Islamic scholars have already said that ‘nikah halala’, ‘nikah mutah’ and nikah misyar’ are forbidden and void in Islam and it’s nothing but religiously sanctioned rape”? Can it be ignored that Prophet Mohammad too favoured monogamy and allowed polygamy only in exceptional cases when it is necessary to support a women but the ground reality is different with polygamy being practiced most rampantly especially in the lower sections of society which only serves to make them more poorer whereas most of the affluent Muslims too now practise monogamy as they understand that sustaining many women and many children is an unnecessary drain on their pocket? Why then should polygamy not be banned completely? Can it be ignored what the petitioners submitted that giving recognition to talaq-e-bidat, nikah halala and polygamy as a valid form of divorce interferes with the Muslim women’s right to profess and practice her religion under Article 25? Can it be ignored what the petitioners submitted that it also treated women unequal as it is illegal for a married Muslim female to marry a second time during subsistence of first marriage and such second marriage is void?          
                                            Moreover, the petitioners argued that if a man agreed not to marry a second time as per nikahnama, his second marriage is at best a breach of contract but not a ground to make the second marriage void. To this extent, the petitioners even challenged the validity of Dissolution of Muslim Marriages Act 1939 as unconstitutional. Two of the petitioners – Sameena Begum and Nafisa Khan related their ordeal of how their husbands mistreated them and without obtaining divorce, married another woman. Sameena got married in 1999 and had two sons from the wedlock. With time, her husband tortured her to bring more dowry or else threatened to give her talaq. She field a complaint of dowry harassment under IPC Section 498A.
                                            Nafisa too similarly underwent torture and harassment in marriage and was left remediless under law when her husband married another woman without giving her divorce. She also had no recourse to filing a criminal case under IPC Section 494 that punishes a man for bigamy. Left completely remediless due to polygamy and triple talaq getting the legal cover under Muslim personal law, both petitioners demanded polygamy, nikah halala and triple talaq as offences under Sections 498A (dowry harassment), 375 (rape) and 494 (bigamy) of IPC. The other two petitions filed by BJPleader and lawyer Ashwini Upadhyay and lawyer Moulim Mohsin Bin Hussein attacked the validity of the nikah halala and polygamy on the same logic as applied by the Supreme Court in Shayyara Bano, since the practices treat Muslim women unfairly as chattels and unequal.
                                                             Poovaiya who argued for the petitioner Hussein also urged the court to consider the validity of nikah misiyar and nikah muta which allow Muslim men to have a one-night stand marriage or a marriage of pleasure. Can on earth there be anything more shameful than this? Yet it is continuing till now because as Nehru didn’t scrap it, no PM including  present PM Modi bothered to ever scrap it! Nikah Misiyar is prevalent among Sunni Muslims and Nikah Mutah among Shia Muslims!
                                                               To conclude, all such retrograde, regressive and reprehensible malpractices which downgrade women and make her a soft target for being abused, tortured and victimised must be abolished immediately but what a tragedy that no PM from Nehru to Modi could summon the courage to abolish it even though Nehru abolished polygamy and polyandry among Hindus for which Hindus must really adore him always for this was the biggest favour done by Nehru on Hindus which most do also as this has ensured the population of Hindus under check which is necessary for the rapid growth of our nation! But why no similar landmark step taken in case of Muslims also? Why just because Nehru didn’t do this, no other PM dared do this? Nehru had the compulsion of “fresh partition wounds suffered by Muslims” and he didn’t want to further anger them but what about all other PM who followed him right from Lal Bahadur Shastri to Narendra Modi who time and again ridicule the legacy of Nehru? Why can’t he change it? For how long this status quo? Another 100 years?
                                               No doubt, the petitions could pave the way for enforcement of a Uniform Civil Code as one of the petitioners argued that Article 44 of the Constitution prescribes that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India! But it would still be too early to jump the gun and draw any hasty conclusion! Let’s wait and watch what the Supreme Court decides in this case after examining it from all angles! I am pretty confident that Supreme Court will not disappoint Muslim women and once again just like in Shayyara Bano case will rise up to their high expectations of being the “last bastion of hope and optimism”!      
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.    
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