Effect of Hindu Succession (Amendment) Act, 2005 remains intact

I read the article “A quiet burial to women’s rights in patrimony?” (23 Dec) penned  by the most erudite Prof Virendra Kumar wherein he contended that the Hindu Succession  (Amendment) Act, 2005 has been  surreptitiously struck off the Statute Book by the Repealing and Amending Act, 2015 and thereby attempt to dismantle disparity between sons and daughters in the matters of equitable division of ancestral property has been done to death .  However, it is respectfully submitted  that  said Act of 2015 merely had the effect of  repealing the Acts enlisted therein  which had become redundant since appropriate  amendments had already been made in various principal legislations pursuant thereto. Since the provisions of the amending Act of 2005 had already been incorporated in the principal legislation ie Hindu Succession Act, 1956 and hence, effect of  Hindu Succession (Amendment) Act, 2005 still remains intact notwithstanding its repeal by the Repealing and Amending Act of 2015. Therefore, record needs to be put straight.

Dr RAJENDER GOYAL, Bahadurgarh

( I emailed the above piece to the TRIBUNE on 27 Dec 2015 but it was not published. However, a clarification from THE MOST ERUDITE & ACCLAIMED JURIST Prof Virendra Kumar appeared in the TRIBUNE in the form of “LETTER TO THE EDITOR” on 28 Dec 2015 which reads thus:)

Burial to women's rights

THE TRIBUNE, NEW DELHI, 28 Dec 2015

In my piece “A quiet burial to women’s rights in patrimony” (December 22, 2015), I concluded by saying that “should we repeal the amending Act of 2005 that sought to destroy perpetuation of discrimination merely on grounds of sex, and give it a quiet  burial for returning to the hoary past without any debate, discussion or deliberation?”

While doing so, inadvertently I failed to take note of the silent saving contained in Section 4 of the Repealing Act, 2015, which has been interpreted recently by a Division Bench of the Karnataka High Court by holding that “by virtue of the Repealing and Amending Act 2015 the amendment made to Hindu Succession Act in 2005 became part of the Act and the same is given retrospective effect from the day of the Principal Act came into force in the year 1956 as if the said amended provision was in operation at that time.” Though the retrospective-effect-proposition of the Bench is flawed in view of the latest ruling of the SC, the former proposition stands. 

But, I still feel, as I have stated earlier, “The aberrations to the amending Act should be removed by giving the daughter an equal share in patrimony without resorting to the quick-fix of making her a ‘coparcener’ as envisaged in Section 6 of the amending Act of 2005. This would do justice to the daughter, without disrupting the joint family setup.”

Virendra Kumar, Chandigarh

Release inevitable

                                The Tribune, New Delhi, 26 December 2015

                                                  Release inevitable

In the context of the juvenile convict's release, Article 20(1) provides protection against ex post facto law, ie no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor he be subjected to a penalty greater than that might have been inflicted under the law in force at the time of the commission of the offence. Thus, legally speaking, the release of the said juvenile offender was inevitable even if some stringent law would have been enacted before his release since no criminal substantive law can be administered retrospectively.  

Dr RAJENDER GOYAL, Bahadurgarh

The original write-up sent to the Tribune reads thus:

There is a sense of revulsion all across that our Parliamentarians have failed to provide justice in Nirbhaya case for want of timely passage of stringent Juvenile Justice Bill 2014 in Rajya Sabha. Hysterical discussions transpired in Electronic Media have left an impression that - had the Rajya Sabha passed the said Bill followed by Presidential assent and Gazette notification before December 20, 2015 ( the day juvenile offender was released) he would have been made to stay in incarceration beyond the maximum period of three years as prescribed in JJ Act of 2000.

 However, it is no gainsaid to emphasize that Article 20(1) of the Constitution provides necessary protection against ex post facto law ie no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor he be subjected to a penalty greater than that might have been inflicted under the law in force at the time of the commission of the offence. Thus, legally speaking, the release of said juvenile offender was inevitable even if some stringent law would have been enacted before his release since no criminal substantive law can be administered retrospectively.  

Dr RAJENDER GOYAL, Bahadurgarh

Juvenile offenders

The Tribune, New Delhi, 23 December 2015

Juvenile offenders

The alarming scourge of juveniles involved in heinous offences and the impending release of Nirbhaya gangrape juvenile offender owing to inadequacies in the Juvenile Justice Law of 2000 warrant for immediate passage of “The Juvenile Justice (Care and Protection of Children) Bill” pending in the Rajya Sabha which was passed by the Lok Sabha on May 7, 2015. The Bill permits juveniles above the age of 16 years to be tried as adults for heinous offences by children’s courts if the Juvenile Justice Board finds the juvenile fit to be tried as an adult based on a preliminary assessment with regard to his mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. 

Dr. Rajender Goyal, Bahadurgarh

Delhi Janlokpal Bill, 2014 & Delhi Janlokpal Bill, 2015: MYTH vs FACT

1.  Selection committee:

There is some dilution on this score.. However, in the Bill of 2014, the Chairman of Selection Committee was Chief Minister…in the Bill of 2015, Chairman of Selection Committee is Chief Justice of Delhi High Court and Chief Minister, LOP and Speaker are other members..It is clear that no appointment can be made unless supported by Chief Justice or LOP (both are non-governmental appointees).

The Selection Committee in Central Act of 2013 is  the Prime Minister—Chairperson with other members viz.  Speaker & LOP (LokSabha), CJI or a Judge of SC as CJI’s nominee, one eminent jurist, as recommended by the Chairperson and Members above. Supreme Court held in NJAC case that selection of eminent person by a majority of political members has every apprehension of selection of said member being vitiated by political influence. The same holds good for selection of eminent jurist above. Hence, it can be said that inclusion of 5^th member as eminent jurist selected by 3 political persons and one non-political person does not add to political bi-partisan character of selection committee.  

POST SCRIPT:

On December 04, 2015, Delhi Legislative Assembly passed the DJLP Bill, 2015 after amending S. 3(1) thereof  and adding three additional members in selection committee:

1.       An eminent personality chosen by the Chief Justice of Delhi High Court, Speaker, LOP   and CM

      2.       A Delhi High Court Judge

      3.       A Former Delhi Janlokpal

2. Search Committee, Public participation etc qua Selection of Delhi JanLokpal:

Provision for Search Committee, public participation qua Selection process may be put in place by regulations framed by DJLP under S. 3(1) and rules framed by government under Section 30(2)(a) & (i)

3. Independent investigation agency: 

 Section 10(1) of the Bill of 2015 specifically sets out that  Janlokpal may appoint ..as investigation officers (called “Janlokpal Investigating Officer”). Further Section 10 (2) says a Janlokpal Investigating Officer shall have all the powers which are vested in a police officer while investigating offences under the Code of Criminal Procedure, 1973 (2 of 1974).  Besides, Section 10(3) says that the Chairperson and all Members of the Janlokpal and all other officers of the Janlokpal, superior in rank to a Janlokpal Investigating Officer, may exercise the same powers as may be exercised by such Janlokpal Investigating Officer. Thus, section 10(1)(2)(3) provides for an independent investigation agency under Delhi Janlokpal.  

It is noteworthy that Delhi Assembly does not have power to legislate qua police. It is further compounded by MHA notifications of 25 July 2014 and 21 May 2015. However, judgment of Delhi High Court in the case of Anil Kumar on  25.05.2015 is silver lining. Jury is still out to decide whether investigation apparatus/machinery/power emanates from Entry 2 (Police) of List 11 (State List) or from Entry 2 (Criminal Procedure) of List 111 and consequently to ascertain legislative competence of Delhi Legislative Assembly under Article 239AA of the Constitution. 

4  Jurisdiction:

 Alleged overreach in Central domain in both bills of 2014 and 2015 are substantially same.

 Delhi JLP Bill 2014: S. 2(1)(iii) expressly included Delhi Police, DDA, MCD, NDMC (ie Central Government Public servants). Also S.2(m) thereof, by way of implication due 2 inclusive provision included Central Government public servant viz PM, Minister etc. Even an ordinary anti-graft law like  PCA,1988 makes no differentiation/discrimination among various Central Government  public servants (from peon to PM). Be it DDA/Delhi Police/NDMC/MCD employees/functionaries or PM, Central Ministers etc...POA, 1988 sway equally applicable. Meaning thereby, if DELHI JANLOKPAL can exercise jurisdiction over Central governments public servants qua Delhi Police, DDA, MCD, NDMC, same holds good for other Central Public servants viz. PM, MPs, Central Ministers etc if they indulge in corruption within NCT of Delhi.

However, the Bill of 2014 had specifically excluded judiciary from its purview, whereas the jurisdiction clause in the Bill of 2015 is all-encompassing.  Section 7 of the Bill of 2015  reads thus:

“Subject to the provisions of this Act, on receiving complaints from the Government or from members of the public or suo motu, the Janlokpal may proceed to inquire or investigate into the allegation of ‘corruption’ occurring in the National Capital Territory of Delhi.

Definition of Public servant in S. 2(m) in DJLP Bill 2014 was ALL-INCLUSIVE except Judiciary.  ALL–INCLUSIVE means that not only includes within its fold the entities specifically included but also deemed to have included all other entities not specifically excluded. Thus, S. 2(l) & (m) of DJLP Bill 2014 includes  within its fold all public servants (Central+NCTD) except judiciary. Central public servants of Delhi Police/DDA/MCD/NDMC specifically included in S.2(l) of DJLP Bill 2014. Delhi CM, Ministers, MLAs etc specifically included in S. 2(m) of DJLP Bill 2014. Rest of public servants (central + NCTD) except JUDICIARY impliedly included in S. 2(m) of DJLP Bill 2014 owing to all-inclusive definition. S. 7 of DJLP Bill 2015 covers all public servants (Central + NCTD) including JUDICIARY  Hence, outreach, if any, in domain of centre is same in Bills of 2014 & 2015 in view of  S. 2 (l) & (m) of 2014 n S. 7 of 2015.

 S. 2(m) of DJLP Bill 2014 consists of 3 parts. 1. Gen clause ..all inclusive

2. specific inclusion

 3. specific exclusion  .

The remit of part 1 (gen clause) limited by specific exclusion in part 3 (ie judiciary)..everything else comes into its fold . Needless to say executive power co-extensive with legislative power . If Delhi Govt’s  ACB can file a case against Central Minister (V. Moily) n MP (M. Deora) along with Mukesh Ambani. WPs(c) 2775, 2946/2014 in Delhi HC against said FIR filed by ACB still pending, no adjudication yet. FOR A STRONGR REASON, Delhi Assembly can confer same power on DJLP vide a law ie DJLP Bill-2015

It is pertinent to note that even Prevention of Corruption Act, 1988 does not exclude judiciary from its ambit. 

In the case of K. Veeraswami v. Union of India   (1991) 3SCC 655  The Hon’ble SC of India held qua HIGHER JUDICIARY that :

“Thus, in order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filling FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with the advice given by the Chief Justice of India. If the Chief Justice of India is of the opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge. This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him. Similarly in the case of Chief Justice of India the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court.”

In the case of Delhi Judicial Service  vs State Of Gujarat And Ors. Etc-Etc (1991 AIR 2176, 1991 SCR (3) 936) the Supreme Court of India held qua LOWER JUDICIARY that:

(A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immedi- ately communicated to the District and Ses- sions Judge of the concerned District and the Chief Justice of the High Court.(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge. (F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it' available.

(G) There should be no handcuffing of a Judi- cial Officer.

5      False complaint and Punishment:

The bill of 2014 vide Sections 22(5) and 35 provided for equally stringent fine and punishment.

6. REMOVAL:

S. 6(1) & (2) qua removal of Lokpal (Chairman/member) in Delhi Janlokpal Bill 2015 is   analogous to removal of SC/HC Judges provided in Art.124(4)(5) & 217(1)(b) of the Constitution. Everyone seems to be hooked on S. 6(1) and wittingly or non-wittingly losing sight of provision envisaged in S. 6(2) .

SECTION 6 OF DELHI JANLOKPAL BILL 2015 READS THUS:

 (1) The Chairperson or a Member of the Janlokpal shall not be removed from his office except by an order of the Lieutenant Governor passed after an address by the Legislative Assembly supported by a majority of the total membership of the legislative Assembly and by a majority not less than two thirds of the members thereof present and voting has been presented to the Lieutenant Governor in the same session for such removal on the ground of proved misbehavior or incapacity.

(2) The procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of the Chairperson or a Member of the Janlokpal under sub-section (1) shall be as prescribed in the Rules.

ARTICLE 124 (4) (5) OF THE CONSTITUTION READS THUS:      

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than twothirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).

THE JUDGES (INQUIRY) ACT, 1968 (Relevent extract)

An Act to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court or of the presentation of an address by Parliament to the President and for matters connected therewith.

Investigation into misbehaviour or incapacity of Judge by Committee.

3 (1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in the House of the People, by not less then one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, then fifty members of that Council, then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same.

(2) If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute as soon as may be for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom -

(a) one shall be chosen from among the Chief Justice and other Judges of the Supreme Court;

 (b) one shall be chosen from among the Chief Justices of the High Courts; and

(c) one shall be a person who is in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist 

NOTE:

1.         Parliament in exercise of power under Article 124(5) has enacted Judges enquiry Act 1956 qua procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge

2.         Why should we rule out that Govt of NCTD in exercise of rule making power will not put in place a mechanism qua procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of the Chairperson or a Member of the Janlokpal akin to as provided in JUDGES ENQURY ACT 1956. Constitutional law is supplemented by Central Legislative law, AND Central/State Legislative law with govt rules. Art 124(4) qua SC/HC judges impeachment supplemented by Parliament Law of JI Act,1968 enacted u Art 124(5). SIMILARLY S. 6(1) of DJLP 2015 will be supplemented by Govt rules framed under S. 6(2).  Govt rules framed under a Law requires 2 be laid in Legislature n latter can amend/annul them.

POST SCRIPT:

On On December 04, 2015, Delhi Legislative Assembly passed the DJLP Bill, 2015 after amending S. 6(2) of DJLP Bill, 2015 and thus specifically mandating that for the removal of Delhi JanLokpal, an inquiry by Delhi High Court will precede the impeachment process in Delhi Legislative Assembly as envisaged in S. 6(1) 

3.         Removal procedure envisaged in In Section 22 of Delhi Janlokpal Bill of 2014 was thus: “The Chairman or any other member of Janlokpal shall only be removed from his office after High Court of Delhi on a complaint of any person, on an enquiry held in accordance with such procedure as may be formulated by the High Court of Delhi, recommend that the Chairperson or such Member, as the case may be, ought to be removed. “

            It is no gainsaid to emphasize that there is already docket explosion in every High Court in India. The scourge of pendency of cases is increasing exponentially. The Section 22 of Bill of 2014 had every scope of giving rise to “COMPLAINT EXPLOSION” qua Delhi Janlokpal in Delhi High Court seriously affecting judicial adjudicatory functions of High Court without much  effective time left for constructively & comprehensively enquiring into each and every complaint made to it.

CAVEAT:

TEAM ANNA (consisting of all stalwarts like Anna, Arvind Kejriwal, Prashant Bhushan, Shanti Bhushan, Justice Santosh Hegde, Kiran Bedi etc etc ) drafted JANLOKPAL BILL 2011. Then there was a split in TEAM ANNA. One group led by Anna ji decided to keep on embarking upon  MOVEMENT PATH and other group consisting of Arvind Kejriwal, Shanti Bhushan, Prashant Bhushan etc embraced  POLITICAL PATH. Parliament passed LOKPAL and LOKAYUKTA ACT, 2013 in December 2013 just in the wake of declaration of result of the Delhi Legislative Assembly  Election-2013. ANNA GROUP accepted LOKPAL and LOKAYUKTA ACT, 2013. Then AAP govt drafted Delhi Janlokpal bill 2014 and endeavored to table it in Delhi Assembly on Feb 14, 2014 unsuccessfully. It is noteworthy that neither the LOKPAL and LOKAYUKTA ACT, 2013 accepted by ANNA GROUP  nor Delhi Janlokpal bill 2014 drafted by GROUP consisting of Arvind Kejriwal, Prashant Bhushan, Shanti Bhushan etc   and unsuccessfully  tried to be tabled in Delhi Assembly on 14 Feb 2014  were exact replica of JANLOKPAL BILL 2011 . Meaning thereby, both GROUPS  had climb-down to varying extent from the DRAFT Jankokpal bill 2011.

 So REFERENCE POINT to assess the merit/demerits of Delhi Janlokpal Bill 2015 tabled in Delhi Legislative Assembly on Nov 30, 2015 is not JANLOKPAL BILL 2011. It should be examined on the touch-stone of LOKPAL and LOKAYUKTA ACT, 2013 in general  and Delhi Janlokpal bill 2014 in particular.

Working kids

The Tribune, New Delhi, 23 December 2014

Working kids

The editorial “2014, devastating for children” (December 11) says that children below the age of 14 cannot be employed in hazardous occupations. Does it mean that in non-hazardous occupations, like domestic work, they can be employed? No. The Supreme Court has given directions regarding the manner in which children working in hazardous occupations are to be withdrawn from work and rehabilitated. Hopefully, the conferment of the Nobel Peace Prize on Kailash Satyarthi will sensitise the government and public to improve the lot of children.

Dr Rajender Goyal, Bahadurgarh

The original write-up sent to The Tribune read thus:

Domestic work is hazardous occupation for children below 14 years

The editorial, “2014, devastating for children” (Dec 11) raises a poser that “Children below the age of 14 cannot be employed in hazardous occupations, does that mean in non-hazardous occupations, like domestic work, even a five-year-old can be employed?” The answer is categorical no in view of Government notification effective from 10 October 2006 whereby the Government enlisted children working in the domestic households as well as roadside eateries and motels under the prohibited list of hazardous occupations. Earlier only Government servants were prohibited from employing children as domestic servants.  Moreover, the Supreme Court of India, in the M.C. Mehta vs State of Tamil Nadu case (1990), has given certain directions regarding the manner in which children working in hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved:-

 1. Employment of children within the match factories directly connected with the manufacturing process upto final production of match sticks or fireworks should not at all be permitted. They can, however, be employed in the process of packing which should be done in an area away from

the place of manufacture to avoid exposure to accident.

2. They should be given at least 60 per cent of the prescribed minimum wage for an adult employee in the factories doing the same job.

3. Under the Factories Act, there is a statutory requirement for providing facilities for recreation and medical attention. The respondent State is directed to enforce these two aspects so that the basic requirements are attended to. Attention may also be given to ensure provision of a basic diet to these children during the working period with a view to ensuring sound physical growth. Facilities for general education as also job oriented education should be made available to them and the school time should be so adjusted that employment is not affected.

4. The State shall take appropriate steps in the matter of creating the welfare fund and finalising the method of contribution and collection thereof by 1st January, 1991 so that the consolidated money would be available for implementing welfare schemes.

5. The State shah also ensure that every employee working in these match factories is compulsorily insured for a sum of Rs.50,000. The premium for the insurance policy should be the liability of the employer to meet as a condition of service.

6. A committee consisting of the District Judge of the area, the District Magistrate of the District, a public activist operating in the area, a representative of the employees and local labour officer to oversee all the direct ions of the Court.

Hopefully, conferment of Nobel Peace Prize- 2014  on Sh. Kailash Satyarthi   will sensitize the government and general public alike to improve the lot of children in true sense.

Dr Rajender Goyal, Advocate

Bahadurgarh

Governor can act independently of/without the aid and advise of elected govt (ie eo nomine) in the matter of appointment etc in Universities

In the matter of  appointment etc in Universities , Governor can act independently of State Government being a Statutory Authority as envisaged in the given University Act as borne out by under noted judgments:-

In State of Gujrat v Justice RA Mehta (2013) the SC held that “under the scheme of our Constitution, the Governor is synonymous with the State Government, and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act, or under the exception(s), provided in the Constitution itself.

In Hardwari Lal v. G.D. Tapase & Ors., AIR 1982 P & H 439, the powers of the Governor, with respect to the appointment/removal of the Vice-Chancellor of Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University (Amendment) Act, 1980, were considered, wherein a direction was sought with regard to the renewal of the term of the Vice-Chancellor of the said University. Certain promises had been made in connection with the same, while making such appointment. The Court held that, as the Governor was the ex-officio Chancellor of the University, therefore, by virtue of his office, he was not bound to act under the aid and advice of the Council of Ministers.

In Vice-Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264, the Supreme Court dealt with the power of the Governor of the State of U.P. ex-officio, with respect to all the Universities established under the provisions of the U.P. State Universities Act, 1973 (hereinafter referred to as `the Act 1973). Section 68 of the Act, 1973 empowers the Chancellor to entertain any question, related to the appointment, selection, promotion or termination of any employee in the University.The Supreme Court held that, when the Governor ex-officio, acts as the Chancellor of a University, he acts under Section 68 of the Act, 1973, and discharges statutory duties as mentioned under the Act, 1973

Whether a convicted person can be appointed as Chief Minister or can a person continue to function as Chief Minister after conviction?

- The issue was decided in negative by the Hon'ble SC in the B.R. KAPOOR v STATE OF TAMIL NADU AND ANR. DOJ 21/09/2001 (Ms. J. Jayalalitha Case) 

- The SC held that “ person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such.

- It may be noted that vide s. 8 (m) of the RPA, 1951 wef 2003 in cases qua the PCA, 1988 –no minimum stipulation of 2 years 

Gubernatorial Office and Change of Government at the Centre

B.P. Singhal vs Union of India & Anr (WRIT PETITION (CIVIL) NO.296 OF 2004) decided on May 7, 2010 by the Constitution Bench of the Supreme Court of India:

(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office  at any time without assigning any reason and without giving any opportunity to show cause.

(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. THE COMPELLING REASONS ARE NOT RESTRICTED TO THOSE ENUMERATED BY THE PETITIONER (THAT IS PHYSICAL/MENTAL DISABILITY, CORRUPTION AND BEHAVIOUR UNBECOMING OF A GOVERNOR) BUT ARE OF A WIDER AMPLITUDE. What would be compelling reasons would depend upon the facts and circumstances of each case.

 (iii) A GOVERNOR CANNOT BE REMOVED ON THE GROUND THAT HE IS OUT OF SYNC WITH THE POLICIES AND IDEOLOGIES OF THE UNION GOVERNMENT OR THE PARTY IN POWER AT THE CENTRE. NOR CAN HE BE REMOVED ON THE GROUND THAT THE UNION GOVERNMENT HAS LOST CONFIDENCE IN HIM. IT FOLLOWS THEREFORE THAT CHANGE IN GOVERNMENT AT CENTRE IS NOT A GROUND FOR REMOVAL OF GOVERNORS HOLDING OFFICE TO MAKE WAY FOR OTHERS FAVOURED BY THE NEW GOVERNMENT.

(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.

NOTE: The Supreme Court directions had come on a petition filed by Uttar Pradesh ex-DGP and the then BJP MP BP Singhal (Rajya Sabha 1998-2004) and brother of Vishwa Hindu Parishad’s Ashok Singhal.  BP Singhal had filed a PIL in 2004 challenging the removal of NDA appointed Governors of Uttar Pradesh, Gujarat, Haryana and Orissa by the new UPA government. It would be interesting to see as to  whether the current regime will repeat the history of UPA or it will accord honour in letter and spirit to said judicial pronouncement of SC that came into being at the instance of an erstwhile BJP Member of Parliament impugning the action of the then UPA-1 Government????

Private School under RTI: CIC Rules

In a major boost to transparency in private schools, the Chief Information has ruled that private schools governed by laws like the Delhi Education Act will also be governed by provisions of the Right To Information Act, 2005. In the significant decision,Ms. Sadhana Dixit Vs. Directorate Of Education, the Central Information Commission (CIC) ruled that private schools cannot deny to provide information on service records and salaries.

The Appellant an ex-employee of Jindal Public School under the Directorate of Education hadfiled an RTI seeking a certified copy of service book, copies of her appointment letter issued by Jindal Public School and staff statements of all the employees. The Directorate of Education provided all the information available with them but the school did not share any of the information asked by the appellant on the grounds that the RTI Act did not apply to a private institution.

The Appellant preferred a second appeal before the Commission after she was unsatisfied with the information provided by the Public Information Officer (PIO) of the Directorate. Information Commissioner Sridhar Acharyulu directed the school to provide her with the information requisitioned under Section 2(f) of the RTI Act and said that the school “has a duty under sections 4 and 8 of the Delhi Education Act 1973, to abide by the regulatory conditions of service, payment of salaries as prescribed, etc for which the school has to maintain the records, which provide an inherent and implied right to information to their employees”

The Commissioner also noted that, “Under Right to Education Act 2009 also, the recognized school is under an obligation to appoint eligible teachers and provide them with prescribed wages. This also reveals that it has given inherent Right to Information to the teachers from their employers.”The Commissioner then directed the school to furnish the information sought by the appellant under the lawto the Directorate of Education who in turn would provide it to the appellant.

This decision by the Information Commission will now ensure transparency in the service records of teachers and other staff among private schools governed by the Delhi Education Act.

(Source: Live Law)

Delhi High Court on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

In an order pronounced on January 16, 2014 in a case titled Swatanter Kumar vs  The Indian Express Ltd. & Ors (I.A. No.723/2014 in CS(OS) No.102/2014), the Delhi High Court vide para 57 opined that  in view of the recent stringent provisions incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides for a mechanism of dealing with the cases of sexual harassment, strict view  would have to be applied equally to both the sides, i.e. complainant as well as alleged accused specially in cases where the complaint is filed after the lapse of long period. The Hon’ble Court further lamented that there should be a limitation of time for the purpose of filing of such complaints, otherwise no one would know when the complaint ought to have been filed and decided. Thus, a balanced approach has to be taken, particularly, in these types of matters.

        It is brought out that said Act of 2013 takes care of both the above counts highlighted by the Court. Section 9 thereof, stipulates the time period of three months from the date of incident further extendable up to three more months if the circumstances were such which prevented the woman from filing a complaint within said period. Further, Section 14 thereof provides for punishment for false or malicious complaint and false evidence.

         However, it is noteworthy that whereas the alleged incident occurred in May 2011, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 passed in February 2013 came into force from December 9, 2013. Moreover, notwithstanding its own binding guidelines of the Vishakha case (1997), the Supreme Court did not have a mechanism to receive such complaints in 2011. 

Dr. Rajender Goyal, Advocate, Bahadurgarh

Faux pas lies in the law of the land

 Protagonists of women’ rights  have strongly discountenanced the disclosure of the name of the intern concerned at many places in the operative portion of three-judge Supreme Court Panel Report in the Justice Ashok Ganguly case.  They seem to be highly indignant as to how such a faux pas/ gaffe could have been allowed by the highest court of the land. However, I feel that it is ripe time to put the record straight from the standpoint of the law of the land. The Supreme Court inquiry panel arrived at a conclusion that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behavior (unwelcome verbal/non-verbal conduct of sexual nature) by Mr. Justice (Retd) A.K. Ganguly with her and that said intern was not an intern on the roll of the Supreme Court and that concerned judge had already demitted office on account of superannuation on the date of incident.

     Hence, it can be culled out that alleged  act of grave impropriety and misdemeanour  i.e.sexual harassment reportedly by Justice Ganguly does not come with in the purview of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and further section 16 whereof prohibits the disclosure of the identity and addresses of not only of  the aggrieved woman but also of  respondent (person against whom aggrieved woman makes a complaint) and contravention of this provision has been made punishable under section 17 thereof.

            Moreover, alleged act attracts section 354A of the Indian Penal Code, 1860 inserted recently by the Criminal Law (Amendment) Act, 2013. It is also brought out that section 228A of the IPC also further amended by the Act of 2013 forbids the disclosure of identity of the victim of offence of rapes in its various degrees as held punishable in various sections 376, 376A, 376B, 376C, 376D, 376E of the IPC.  Further, section 327 of the CrPC mandates that inquiry into and trial of rape cases shall be conducted in camera. Thus, it can be said that law of the land except in the cases of rape and sexual harassment as envisaged by  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 does not enjoin upon, in other cases of sexual crimes against women, to keep secrecy, more so, in a case where said law intern hereself ventured out to bring to fore her plight in the virtual world that has attracted lot of well-deserved attention in the real world.

However, dithering shown by the Delhi police in registration of FIR in the case inspite of a formal complaint by Ex Dean of Faculty of law of Delhi University squarely goes against the recent constitution bench pronouncement of the Hon’ble Supreme court that mandates   registration of FIR either on the basis of the information furnished by the informant or on any information received other than by way of an informant.

Moreover, it is no gainsaid to emphasize that sexual harassment results into violation of fundamental rights of women to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.