LEADER OF OPPOSITION (LOP) QUANDARY IN LOK SABHA

IS IT OBLIGATORY FOR A PARTY TO SECURE AT LEAST 10% SEATS (I.E. 53)  IN LOK SABHA TO SEEK THE POST OF LOP

The salary and allowances of leaders of opposition in Parliament Act, 1977: Section 2 reads thus "Leader of the Opposition", in relation to either House of Parliament, means that member of the Council of States or the House of the People, as the case may be, who is, for the time being, the Leader in that House of the party In opposition to the Government having the greatest numerical strength and recognised as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.
Note 1:- Nowhere any of the provisions of said Act stipulates the purported condition of 10% of the total strength (Elected MPs i.e. 543/10 = 54)  of the concerned House i.e. minimum 54 MPs as being talked about. 10% is the minimum quorum required to convene the sitting of the House. 
THUS, IMHO, THE CONGRESS PARTY BEING THE PARTY HAVING THE GREATEST NUMERICAL STRENGTH (52 MPs) MAY TAKE AWAY THE TROPHY.

Note 2: In NCTD, there is similarly worded LAW namely LEADER OF OPPOSITION IN LEGISLATIVE ASSEMBLY OF NCTD (SALARY AND ALLOWANCE) ACT, 2001. In Legislative Assembly election in 2015 in NCTD the BJP had secured 3/70 seats (well below the purported condition of 10%). However, the Hon'ble Speaker had recognized Sh. Vijender Gupta, BJP MLA, who was the Leader of House of the BJP Party in opposition to the government having the greatest numerical strength, as LOP in the Legislative Assembly of NCTD U/S 2 of the said Act of 2001.

The POCSO Act and Minor Wives

I read the Cover Story “No Excuse for Child Abuse: Re-appraise and Fine-Tune POSCO Act” by Hemant Kumar in the February 2016 issue. The learned author laboured hard to point out that in certain cases the overriding but milder sway of the provisions of the POCSO Act by virtue of proviso in Section 42A may have the effect of defanging the prescription of harsher punishment as set out in Section 42 of the said Act. I humbly beg to differ on that count because the very purpose of enactment of POCSO Act inter alia is to adequately penalize the sexual offenders against children to serve deterrent messages to such offenders. Hence, the mandate of Section 42 vis-à-vis harsher punishment will mount over the Section 42A of the Act in any given instance. Pertinent here is to dwell upon the issue of sexual intercourse with a minor wife. As per IPC vide Section 375- Explanation 2, sexual intercourse or sexual acts (with or without her consent) by a man with his own wife, the wife being under fifteen years of age, is rape and punishable vide Section 376 with imprisonment for a term of not less than seven years. However, as per IPC consensual or non-consensual sexual intercourse or sexual acts with a minor wife aging between 15 to 18 is no offence. On the other hand, POCSO Act gives no such exemption to husband. The term “child” as defined vide Section 2(d) in POCSO Act means any person below the age of eighteen years which obviously also includes a minor wife. In such cases the overriding provision in Section 42A of the POCSO Act will come handy and husband(s) may be punished by resorting to relevant penal provisions of the POCSO Act notwithstanding the impunity conferred on husband(s) in IPC in such cases.
NOTE:
Section 42. Alternate punishment : Where an act or omission constitutes an offence punishable under this Act and also under section166A,354A,354B,354C,354D,370,370A,375,376,376A,376C,376D,376E or section 509 of the Indian Penal Code, then, not withstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
Section 42A. Act not in derogation of any other law :
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

PS:- 

Sex With Minor Wife Is Rape, Police Can Register Case On Wife’s Complaint: SC Reads Down Exception-2 To S.375 IPC (11 October 2017)

A two Judge Bench of Supreme Court held that sexual intercourse with minor wife is rape and  a case can be registered against the Husband oh her complaint....

In a landmark ruling, the Supreme Court today read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in ...

Exception 2 mentions that sexual intercourse or sexual acts by a man with his own wife,( the wife not being under 15 years of age), is not rape. The petitioner argues that this makes it conducive for child marriages and allows husbands of illegal ch...
The Government’s justification that the exception to rape has been provided to protect the institution of marriage, creates an arbitrary classification of girls between the ages of 15 and 18, and has no rational nexus with the object, he had suggeste...

Mukherjee referred to both the Protection of Children From Sexual Offences Act, 2012, (POCSO) and the Protection of Women from Domestic Violence Act, 2005, and said married women of 15-18 age group, if aggrieved with their marriage, could seek protec...

Read more at: http://www.livelaw.in/breaking-sex-minor-wife-rape-police-can-register-case-wifes-complaint-sc-reads-exception-2-s-375-ipc/

No carte blanche by Punjab and Haryana High Court to breach 50% ceiling

THE TRIBUNE, 15 September, 2017

http://epaper.tribuneindia.com/1357189/The-Tribune/TT_15_September_2017#page/8/2

Jat quota

Refer to ‘Resolve without reserve’ by Yogendra Yadav (September 11), while dwelling upon the Punjab and Haryana High Court judgment regarding Jat reservation, the writer has erred when he says that the court allowed the government to go beyond the 50 per cent ceiling on all reservations. A scrutiny of the judgment shows that in the matter of Tamil Nadu reservation, the Supreme Court, in 2012, in the case of SV Joshi v. State of Karnataka, had laid down that ‘if a State wanted to exceed 50% reservation, it was required to base its decision on quantifiable data, which exercise had not been done in the said case. Accordingly, the State of Tamil Nadu was directed to place the quantifiable data before the Tamil Nadu State Backward Commission and, on the basis of such quantifiable data amongst other things, the commission would decide the quantum of reservation’. The writ petition was disposed of with a direction to the state government to revisit and take appropriate decision in the light of what was stated. In the matter of Jat reservation, the Punjab  and High Court has followed the said judgment of the Supreme Court and directed the Haryana commission to carry  out an exercise to determine the extent of reservation, if any, to which the castes mentioned in Schedule III of the 2016  Haryana Act would be entitled to and also the quantum of reservation to be provided for them. The court further held that the question regarding the 50 per cent limit being breached by providing reservation in pursuance of the impugned legislation, and whether it is so justified, can also be raised and considered by the commission.

Rajender Goyal, BAHADURGARH

LOKPAL and LOP vis-a-vis ATTORNEY GENERAL's CONFLICTING STAND

THE LOKPAL AND LOKAYUKTAS ACT, 2013

Appointment of Chairperson and Members of LOKPAL on recommendations of Selection Committee.

Section 4. (1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of—
(a) the Prime Minister—Chairperson;
(b) the Speaker of the House of the People—Member;
(c) the Leader of Opposition in the House of the People— Member;
(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him—Member;
(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the President—Member.
(2) NO APPOINTMENT OF A CHAIRPERSON OR A MEMBER SHALL BE INVALID MERELY BY REASON OF ANY VACANCY IN THE SELECTION COMMITTEE.

Learned AG’s STAND in 2014 and 2017:-

THEN in November 2014 in an advisory opinion to Lok Sabha secretariat after UPA chairperson Smt. Sonia Gandhi wrote to Lok Sabha Speaker Sumitra Mahajan seeking LoP post for Congress nominee the ATTORNEY GENERAL said:

“The LoP is a member of selection committees to choose the chief and members of Lokpal, Central Vigilance Commission (CVC), Central Bureau of Investigation (CBI), Central Information Commission (CIC) and National Human Rights Commission (NHRC).The absence of recognised Leader of Opposition (LoP) in Lok Sabha will not invalidate appointments in various statutory bodies including Lokpal and CVC among others. All the four Acts - the Protection of Human Rights Act, 1993, the CVC Act, 2003, RTI Act, 2005 and the Lokpal and Lokayuktas Act, 2013 -- provide that the selection "shall not be rendered invalid under any of the Acts merely on account of a vacancy of any member in the committees. It is clear that in at least two of the four Acts (CVC and RTI), Parliament has clearly stated its intention i.e. that there may be a situation where no LoP is recognised in Lok Sabha by the Speaker. As far as the other two Acts are concerned, it is obvious that the vacancy in the selection committee regarding Leader of Opposition, who will not be present in the committee because of lack of appointment as such, will be treated as a casual vacancy i.e. akin to a member of the selection committee not being able to attend the meeting.”

NOW in March 2017 in Supreme Court the ATTORNEY GENERAL says:

“Under the Lokpal Act, the selection panel must include the Leader of the Opposition (LoP) in the Lok Sabha. But the largest opposition party - the Congress - has only 45 members and lacks the requisite 10 per cent of the total 545 seats, giving rise to the requirement to amend the present Lokpal Act. The amendments pertaining to the definition of the Leader of Opposition in the Lokpal Act are pending in Parliament. The government is considering 20 changes in the Lokpal law and the judiciary can't pass order on how and when the amendments should be passed.”

NOTE:
1. The Supreme Court has reserved its verdict on a batch of petitions seeking the appointment of a Lokpal in the Country.
2. CVC Act and RTI Act- if the Leader of Opposition in the House of the People has not been recognised as such, the Leader of the single largest group in opposition of the Government in the House of the People shall be deemed to be the Leader of Opposition.

Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

1. Constitution Bench of the Hon’ble Supreme Court in Ex-Capt. Harish Uppal vs Union of India & Anr. (Writ Petition (civil) 132 of 1988)DATE OF JUDGMENT: 17/12/2002 held thus:

“Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalatnama of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised”.

2. Contempt Petition (Civil)  550    of   2015 (Common Cause   vs Abhijat & Ors) is pending before the Supreme Court of India.

3. Law Commission of India has submitted its 266th report titled ‘The Advocates Act, 1961 (Regulation of Legal Profession) suggesting drastic changes in the Advocates Act, 1961 to the Government. The Law Commission of India has proposed widespread amendments in the Advocates Act, 1961 with a view to facilitate initiation of taking forward reforms in the legal profession. The Commission observed that unless there are compelling circumstances and the approval for a symbolic strike of one day is obtained from the Bar Council concerned, the advocates shall not resort to strike or abstention from the court work.

 The Law Commission has also placed before the Government The Advocates (Amendment) Bill, 2017. A new Section 35 states:

 “No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises”.

The Bill has also proposed a definition of Misconduct, which was missing in the Advocates Act.

‘misconduct’ includes-an act of an advocate whose conduct is found to be in breach of or non- observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; oran unlawful behaviour;or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust;or any of his conduct incurring disqualification under section 24A.

In case of proved misconduct BCI can impose a fine which may extend of rupees 3 Lakhs and cost of proceedings.

 4. The Bar Council of India Chairman Manan Kumar Mishra has written to the Law Commission withdrawing the recommendations made by the BCI regarding proposed amendments to the Advocates Act. Manan Kumar Mishra in his letter to the Chairman of Law Commission of India, Justice BS Chauhan, stated that:

“A deliberation will take place with the members of the Co-ordination committee and thereafter, the recommendation will be sent. At the same time, through some news clippings, I have come to know that the Commission has made certain recommendations with regard to the Disciplinary Committee Proceedings and it has recommended that in such committee the government should nominate other people excluding members of the Bar and/or their bodies’ representatives will not be there to try their case relating to the disciplinary action against the lawyers. If there is any such proposal, I humbly request your good self to reconsider the same and strengthen the institution of legal fraternity. The outsiders’ interference in the matters of advocates may invite nationwide protests, so it is my request to consider this aspect of the matter.” 

EVM CONTROVERSY: INCORPORATION OF VVPAT SYSTEM WITH EVMs

Dr. Subramanian Swamy Versus Election Commission of India, CIVIL APPEAL NO.9093 OF 2013 (Arising out of SLP (Civil) No. 13735 of 2012), DOD- OCTOBER 8, 2013, Bench: CJI P. SATHASIVAM), J RANJAN GOGOI. The Hon'ble Supreme Court held thus:
“ From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail”. EVMs with VVPAT(Voter Verifiable Paper Audit Trail) system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system. In the light of the above discussion and taking notice of the pragmatic and reasonable approach of the ECI and considering the fact that in general elections all over India, the ECI has to handle one million (ten lakhs) polling booths, we permit the ECI to introduce the same in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased manner”.

NOTE: 
INTERESTING!!
Democracy At Risk! Can We Trust Our Electronic Voting Machines? 
Author- GVL Narasimha Rao (National Spokesperson, Bharatiya Janata Party) and Foreword by Sh LK Advani Ji.
ISBN- 139788191006506
Publisher- NameVeta Citzen
Edition- 2010

A GANG OF 2/3RD MLAs SIMPLICITER NOT “BE-ALL AND END-ALL” TO WARD OFF THE SANCTION OF ANTI-DEFECTION LAW

Not all (doesn't mean NOT AT ALL) is bad with the anti-defection law. The whipping boy the para 4 of the Tenth Schedule of the Constitution enabling the merger of a political party, in fact, is highly democratic. It envisages a collaborative and participatory working between the political party concerned and its legislature party consisting of all members of the given House for the time being belonging to that political party in that House. The law tends to strike a fine balance between interests of political party and the aspirations of the Legislators (denoting the will of the people) comprising the legislature party concerned. The contents and intent of the said law lend emphatic credence to the inference that any decision for such merger can only be taken by the original political party in accordance with the rules thereto as embodied in the constitution of that political party, and to take it further to any logical conclusion must find favour with not less than two-thirds of the elected members of the legislature party concerned (ie MLAs or MPs as may be the case). Hence, the contention being articulated from certain quarters that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter is untenable.

- TENTH SCHEDULE to Indian Constitution

4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party— (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

NOTE:
Only direct ruling on above clause 4 of the 10th Schedule to the Constitution is of Punjab & Haryana High Court by MR. JUSTICE K. KANNAN RE Kuldeep Bishnoi Versus Speaker, Haryana Vidhan Sabha, Chandigarh and others (CWP No.2900 of 2013), Date of Decision.09.10.2014 and falls well short of any elucidation over the matter.