Friday, January 29, 2021

Bengal assembly elections once again about Ma Mati Manush

Bengal assembly elections commences on March 27 with ruling party's Trinamool Congress (TMC)'s main slogan - "Bengal only wants its own daughter"(BanglaNijerMeyekeiChay). 

Bengal elections will be held over 33 days in eight phases from March 27 to April 29, the Election Commission has announced. The results will be declared on May 2. The eight days of voting are March 27, April 1, April 6, April 10, April 17, April 22, April 26 and April 29. 

State's ruling party reacted saying, Bihar has 240 seats but it had elections in three phases. Tamil Nadu has 234 seats, it will have election in one day. Why eight phases in Bengal? The question is likely to reverberate throughout the election. In 2016 assembly elections, the BJP - which won 3 of seats with 10.16 percent vote share. TMC got 211 seats and 44.91 percent vote share. In 2011, in alliance with SUCI and Indian National Congress, TMC had defeated Left Front which has been ruling the state for 34 years. TMC had won 184 seats, SUCI won one seat and Congress got 42 seats. In 2016, TMC won 211 seats without any alliance. 

Ahead of the assembly elections, Left Front-Congress alliance has finalised seat sharing deal for 193 seats out of 294 seats. 148 seats are needed for majority. Out of the total seats, Left Front will contest 101 seats and Congress will contest 92 seats. Out of these seats, they had won 77 seats in the 2016 elections. The arrangements for the remaining seats are yet to be announced. 

Meanwhile, CPI (ML) has announced that it will contest in 12 seats independently and not as alliance partners with the Left Front-Congress. 

CPI (ML) has decided to contest in Phansidewa (Darjeeling), Maynaguri (Jalpaiguri), Mathabari (Malda), Khargram (Murshidabad), Manteswar (Burdwan), Jamalpur (Burdwan), Onda (Bankura), Ranibandh (Bankura), Krishnanagar South (Nadia), Nakashipara (Nadia), Dhanekhali (Hooghly) and in UttarPara (Hooghly).

CPI (ML) has announced that it will support candidates of other parties including Left Front, Congress and TMC. 

It is being said that Hindi speaking voters who constitute 12 percent of total voters are likely to play a significant role in some constituencies. The role of women voters too will be crucial. 

Significantly, Bengal assembly is the only state assembly in the country which had unanimously passed a resolution against controversial biometric surveillance initiative called Unique Identification (UID)/Aadhaar Number for residents of India with the support of TMC and Left parties. This project was launched by Congress led central government and is enthusiastically pursued by BJP led central government under the influence of the donors of ruling parties. The latter bulldozed it as Money Bill amidst bitter protest by Rajya Sabha. It has been found constitutionally questionable by a 5-Judge Constitution Bench of Supreme Court and has been referred to a 7-Judge Bench. 

Alignments and alliances for the election are almost ready but rife with scope for surprising partial re-alignments. It is evident that Bengal election is once again going to be about Ma Mati Manush (Mother, Motherland and People). 



Saturday, January 16, 2021

Agriculture markets laws are illegitimate, unconstitutional, must be repealed.

More than 50 days have passed since the farmers' protest started at Delhi's borders. Farmers have burnt the copies of the three agriculture market laws- Agriculture Produce Market Committee (APMC) Bypass law, Contract Farming law and decriminalization of commodity hoarding law. They are gearing up for a tractor rally in Delhi on Republic Day demanding repeal of these illegitimate unconstitutional laws. 

At a Dialogue on Farm Market Laws in Patna, P. Sainath, noted journalist observed, "Agriculture is a state subject under the Constitution of India. These three laws aggravate the existing agrarian crisis. They should be repealed. The government is playing with fire." He added, "APMC is to agriculture what the government school is to the education sector and APMC is like the government hospital of the health sector. Reforms must be farmer friendly, and not corporate friendly.” He demanded a special session of Parliament for hearing the farmers and addressing their demands in the context of unprecedented mobilization of farmers on the issue of the farm market bills. Sainath explained how the farmers are directly confronting the corporate power- “Their protest is in defence of democracy and for reclaiming the republic”. He questioned the enactment of these laws during the pandemic. He explained the many aspects of the agrarian crisis, and how many allied professions have been affected by it and the importance of Minimum Support Price, and how it must be related to procurement. He concluded saying, “This is one of the series of struggles, the nation is with the farmers and this fight is ours, we need to show our solidarity with the mobilization of farmers because it is not an ordinary event. It merits special attention of all sections of society because these laws will have adverse effect on the rights of all the citizens."

Dr. Gopal Krishna of Nation for Farmers introduced the subject and explained the backdrop in which Bihar's APMC Act was repealed because of irrational and unconvincing reasons and made a case for its restoration. He said, Patna High Court erred in dismissing the petition challenging the repeal of Bihar's APMC Act, 2006 in 2008. Justice Rajesh Balia was misled by the then Advocate General of Bihar. It was admitted in the Court by the State Government that no studies were conducted to find out the achievements of Bihar's APMC Act before reaching the conclusion that the law had failed to achieve its purpose. Notably, the 23-page long verdict has cited International trade agreements to endorse the constitutionality of the repeal law. The fact remains the repeal of Bihar's APMC Act is illegitimate and is contrary to the principles of constitutionalism. There is a compelling reason to ensure restoration of this law. Similar law has been enacted in Maharashtra in 2015 to safeguard the interest of the farmers. 

 

तीनों कृषि बाजार कानून नाजायज और असंवैधानिक हैं: पी साईनाथ

केंद्र सरकार के तीन नए कृषि कानूनों के खिलाफ पिछले 50 से अधिक दिनों से दिल्ली की सीमाओं पर किसान प्रदर्शन कर रहे हैं. किसानों ने नए कृषि कानूनों की प्रतियां जलाईं. साथ ही गणतंत्र दिवस के मौके पर 26 जनवरी को ट्रैक्टर परेड करने का ऐलान किया है. किसानों की मांग है कि तीनों कृषि कानूनों को निरस्त किया जाना चाहिए. उन्होंने कोरोना वायरस महामारी के दौरान इन कानूनों को पारित करने का केंद्र सरकार के फैसले पर सवाल उठाया है। किसान डटे हुए हैं और केंद्र सरकार द्वारा लाए गए तीन विवादित कृषि कानूनों को वापस लेने की मांग कर रहे हैं। इन कानूनों के जरिये सरकार एपीएमसी मंडियां और न्यूनतम समर्थन मूल्य (एमएसपी) खत्म करना चाह रही हैजिसके चलते उन्हें ट्रेडर्स और बड़े कॉरपोरेट के रहम पर जीना पड़ेगा। ये कानून किसानों को कोई कानूनी सुरक्षा नहीं प्रदान करते हैं. किसान संगठन अपनी इस मांग को लेकर प्रतिबद्ध हैं कि सरकार को हर हालत में इन कानूनों को वापस लेना होगा. इस संबंध में सरकार और किसानों के बीच बातचीत के कई दौर चलेलेकिन अभी तक कोई नतीजा नहीं निकला है।  

कृषि बाजार कानूनों को लेकर देश के किसानों के अप्रत्याशित व्यापक जुटान के सन्दर्भ में आज पटना में जाने माने कृषि विशेषज्ञ एवं मेग्सेसे पुरस्कार विजेता श्री पी साईनाथ के साथ चर्चा का आयोजन हुआ। ज्ञात हो कि श्री साईनाथ पीपुल्स अरकाईव ऑफ रूरल इंडिया (PARI) के संस्थापक हैं और द हिन्दू अखबार के ग्रामीण मामलों के संपादक रहे हैं. 

उन्हीने कहा कि भारतीय संविधान के तहत कृषि राज्य का विषय है. केंद्र द्वारा इन कानूनों को बनाना असंवैधानिक है. इससे मौजूदा कृषि संकट को और गहरा देगा। इन कानूनों को रद्द किया जाना चाहिए. सरकार आग से खेल रही है". साईनाथ ने कहा कि कृषि उत्पाद बाजार समितिकृषि के लिए लगभग वही है जो सरकारी स्कूल शिक्षा के क्षेत्र के लिए है या फिर जो सरकारी अस्पताल स्वास्थ्य क्षेत्र के लिए है. कृषि कानूनों में नीतिगत सुधार निश्चित तौर पर किसानों के हित को ध्यान में रखते हुए किया जाना चाहिएन कि निजी कंपनियों के हित में। 

इन कानूनों के जरिये सरकार एपीएमसी मंडियां और न्यूनतम समर्थन मूल्य (एमएसपी) खत्म करना चाह रही हैजिसके चलते उन्हें ट्रेडर्स और बड़े कॉरपोरेट के रहम पर जीना पड़ेगा। ये कानून किसानों को कोई कानूनी सुरक्षा नहीं प्रदान करते हैं. किसान संगठन अपनी इस मांग को लेकर प्रतिबद्ध हैं कि सरकार को हर हालत में इन कानूनों को वापस लेना होगा. इस संबंध में सरकार और किसानों के बीच बातचीत के कई दौर चलेलेकिन अभी तक कोई नतीजा नहीं निकला है।  

नेशन फॉर फार्मर्स के डा गोपाल कृष्ण ने चर्चा के विषय का परिचय दिया। उन्होंने यह भी बताया की कैसे बिहार के सन्दर्भ में  APMC एक्ट को गैर वाजिब वजह से निरस्त किया गया और इस एक्ट को फिर से बहाल करने के महत्व पर जोर दिया। 

मालूम हो कि केंद्र सरकार की ओर से कृषि से संबंधित तीन विधेयक– किसान उपज व्‍यापार एवं वाणिज्‍य (संवर्धन एवं सुविधा) विधेयक, 2020, किसान (सशक्तिकरण एवं संरक्षण) मूल्‍य आश्‍वासन अनुबंध एवं कृषि सेवाएं विधेयक, 2020 और आवश्‍यक वस्‍तु (संशोधन) विधेयक, 2020 को बीते 27 सितंबर को राष्ट्रपति ने मंजूरी दे दी थीजिसके विरोध में किसान प्रदर्शन कर रहे हैं. सरकार समझ रही थी कि यदि वो इस समय ये क़ानून लाती है तो मज़दूर और किसान संगठित नहीं हो पाएंगे और विरोध भी नहीं कर पाएंगेलेकिन उनका यह आकलन ग़लत साबित हुआ है. किसानों को इस बात का भय है कि सरकार न्यूनतम समर्थन मूल्य (एमएसपी) दिलाने की स्थापित व्यवस्था को खत्म कर रही है और यदि इसे लागू किया जाता है तो किसानों को व्यापारियों के रहम पर जीना पड़ेगा. किसानों का व्यापक जुटान कोई मामूली जुटान नहीं है.


Friday, January 8, 2021

India Armed Forces have been losing over 100 soldiers every year due to suicides and fratricides

 To


Chairman,
National Human Rights Commission
New Delhi

Date: 09/01/2021

Subject-India Armed Forces have been losing over 100 soldiers every year due to suicides and fratricides

Sir,

With due respect we wish is to draw your attention towards the Report of Scholars Webinar titled "Prevailing Stress Levels in Indian Army due to Prolonged Exposure to Counter Insurgency/ Counter Terrorism Environmentprepared by Col. A. K. Mor, Senior Research Fellow at the United Service Institution of India (USI). The attached summary of the report was uploaded and published on 07-12-2020. The Press Trust of India, Times Now and The Tribune have reported the findings of this report stating that "Indian Army losing more personnel every year in suicides, fratricides and untoward incidents than in any enemy action and over half of its soldiers seem to be under severe stress presently".  

We submit that these findings corroborate the earlier findings in the paper titled "Addressing Stress-Related Issues in Army" published by Institute for Defence Studies and Analyses (IDSA) in February 2011. Lt Gen Prakash Katoch, a former Lt Gen Special Forces, Indian Army wrote an article titled "Armed Forces Suicides, Welfare and Morale" (Indian Defence Review, 6 January, 2018) wherein he drew attention towards the information given to Parliament regarding 425 suicides in the Armed Forces since 2014: 335 in Army including nine officers; 72 in Air Force including 67 airmen; and, 18 in Navy including two officers. Parliament was also informed that since 2014, 803 Army officers and 38,150 soldiers had also sought premature retirement. It has been reported by The Times of India that as many as 597 military personnel committed suicide in 5 years between 2009 and 2013. NDTV reported that in 2018, a total of 80 army personnel committed suicide. The total number of suicides in the Air Force was 16 while in the Navy was 8, Minister of State for Defence Subhash Bhamre told the Rajya Sabha in a written reply on January 7, 2019. In 2017, the number of army men, who are suspected to have committed suicide, was 75 while in 2016, this number was 104. In the Air Force, the number of suspected suicides was 21 in 2017 and 19 in 2016. For the Navy, these numbers were 5 and 6 for 2017 and 2016, respectively. There are compelling reasons for the Commission to pay heed to the findings of Col. Mor's report which are consistent with earlier findings.  

We submit that it is indeed true that military duty is regarded as one of the most stressful jobs in the entire world. Col. Mor's report points out that India Armed Forces have been losing over 100 soldiers every year due to suicides and fratricides leading to the grim reality of one soldier dying every third day. This loss is substantially greater than the operational casualties suffered by the Armed Forces. In addition, a number of soldiers and leaders have been affected by hypertension, heart diseases, psychosis, neurosis and other related ailments. The maximum incidents of fatalities occur in Indian Army with one of the primary reasons being the prolonged deployment in the Counter-Insurgency/ Counter-Terrorist environment. 

We submit that research undertaken during 2019-20 by Col. Mor examined the stress levels in the Indian Army by identifying stressors experienced by the Army personnel due to prolonged exposure to the CI/CT environment and thereby make constructive recommendations to effectively manage stress in the Army. In this regard a webinar titled "Prevailing Stress Levels in Indian Army due to Prolonged Exposure to Counter Insurgency/ Counter Terrorism Environment" was organised on 17 October 2020. The panelists included Major Gen. B.K. Sharma, AVSM, SM Bar (Retd), Director USI, Major Gen Rajiv Narayanan, AVSM, VSM (Retd), Head CS3 USI and Major Gen. R.P. S. Bhadauria, VSM (Retd), Distinguished Fellow, USI.

Drawing on the report, we submit that stress is an outcome of anxiety generated in an individual by their perception of the demands and complexity of a situation, and the consequently perceived ability to handle the problem. This study has used Armed Forces Medical College (AFMC) Life Events Scale (LES) 2001 for quantification of stress amongst Indian Army personnel. Indian Army personnel face Environmental Stressors, Organizational Stressors, Personal Stressors, Role Related Stressors, Socio-economic Stressors and Miscellaneous Stressors. The main findings of the study are as under:-
1. Indian Army has been losing more personnel eveO'year due to suicides, fratricides and untoward incidents than in response to any enemy and/or terrorist activities. 
2. There has been a significant increase in stress levels amongst Indian Army personnel during approximately the last two decades due to operational and non-operational stressors. Furthermore, presently more than half of Indian Army personnel seem to be under severe stress.
3. Prolonged exposure of Indian Army personnel to CI/CT environment has been one of the contributory factors for increased stress levels. 
4. The operational stressors are well understood and accepted by Indian Army personnel as integral part of their profession. However, non-operational stressors are perceived to be avoidable and resented against. Unsurprisingly, it is precisely these non-combat stressors that add on to the operational stressors and have compounding adverse effects on health and combat efficiency of soldiers and thus affecting their respective units too. The stress management measures therefore, need to be focused towards mitigating organisational causes of non-operational stressors. 
5. Indian Army Officers experience comparatively much higher cumulative stress levels as compared to the JCOs/ OR. Also, the stress causative factors are found to be different for Officers as compared to JCOs/ OR. Therefore, the aspects causing stress amongst the various categories of Army personnel need to be addressed accordingly.  Moreover, the overall job satisfaction and pride in uniform still remains high amongst JCOs/ OR. However, at the same time, it seems to be a growing matter of concern amongst Officers, requiring urgent interventions from the highest levels of Government. 
6. Despite harsh and challenging service conditions, Indian Army personnel remain highly motivated to serve in CI/ CT areas voluntarily. They possess high confidence in the training, weapons and equipment provided for operating in the CI/ CT environment. However, the Officers lack a similar level of trust, faith and confidence in their leadership that JCOs/OR demonstrate. 

The report underlines that various stress management measures implemented by the Indian Army and Ministry of Defence during the last 15 years have not been able to achieve the desired results. There is thus an urgent need to remove all the shortcomings in the existing strategies at the earliest. Prolonged exposure to excessive stress has serious adverse effects on the health and efficiency of soldiers and combat units. Units and sub-units under stress are likely to witness an increased number of incidents of indiscipline, unsatisfactory state of training, inadequate maintenance of equipment and low morale, motivation and esprit-de-corps, thereby adversely affecting their combat preparedness and operational performance. Soldiers under stress need to be counselled, motivated and dealt with empathy. It points out insufficient accommodation and educational facilities, lack of motivation amongst juniors, non-grant of leave, indifferent attitude of civilian officials and short command tenures. The main organisational stressors as perceived by JCOs/ OR include delay and denial of leave, excessive engagements, domestic problems, humiliation by seniors, lack of dignity, unreasonable restrictions on the use of mobiles, lack of recreational facilities, conflict with seniors as well as subordinates, health problems, the inadequacy of train reservation, inefficient
administrative support, financial problems, lack of transparency in promotions, delay in crediting of financial claims and poor quality of rations as well as cooked food.

We submit that it has aptly been inferred by Ms. Sakshi Sharma in a paper titled "Occupational stress in the armed forces: An Indian army perspectivethat "A 'sick' army can negatively impact the country in terms of health care, unhealthy working relationships, suicides, and killing of fellow soldiers, which have been frequently witnessed in the past decade." 

In the light of the above, we earnestly seek your immediate intervention to make considered recommendations for the protection of our armed forces. 

Thanking you in anticipation.

Citizens Forum for Civil Liberties (CFCL)

Tuesday, January 5, 2021

High Court grappled with cases under Bihar Prohibition and Excise Act in 2020

In 2020, Patna High Court disposed 14,108 civil cases and 1.42 lakh criminal cases till November 30. Numerous cases related to inappropriate implementation of the Bihar Prohibition and Excise Act, 2016 reached the Court throughout the year compelling it reiterate its order time and time again.  

January 2020: In Mohammad Babar v The State Of Bihar, a 3-Judge Bench of Chief Justice Sanjay Karol, Justices Anil Kumar Upadhyay and K.C. Jha on 14 January, 2020, the Court reiterated its earlier orders. It observed "It is continued practice of this Court that in cases of drunken driving; no recovery from the vehicle; recovery of less than commercial quantity; where ex-facie, vehicle is not liable to be confiscated; where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc., this Court has been directing the State to provisionally release vehicle/property, subject to initiation/conclusion/finalisation of the confiscatory proceedings, as the case may be" in the matter of offences punishable under the Bihar Prohibition and Excise Act, 2016.  

It reminded the State that in Diwakar Kumar Singh v The State of Bihar (2018), the Court issued the following directions: "That apart, in the confiscation proceedings, the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor, whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act, apply his mind and pass a speaking order with regard to confiscation initiated. Without deciding the aforesaid issue as a preliminary issue, further proceedings in the confiscation proceedings shall be prohibited."

It asked "the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar, who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof, if we find that the District Magistrates are passing confiscation order without addressing this issue first, we may consider initiating contempt proceedings against the concerned District Magistrate."

The Court recalled that in Shobha Devi v The State of Bihar (2019), the Court had observed :"On examination of aforesaid fact, particularly allegation of the petitioner that in a court proceeding before the learned Special Judge, Excise, a false information was given, we are of the opinion that the court of learned Special Judge, Excise would be competent court to pass an appropriate order, in view of provisions contained in Section 340 of the Code of Criminal Procedure, 1973. Accordingly, the petitioner is granted liberty to file appropriate petition before the learned Special Judge, Excise for prosecuting the concerned police official. So far as claim of compensation is concerned, obviously on going through the material on record, since there was no recovery of liquor from the vehicle and it was a case, in which, the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance, though were liable to be arrested. In any event, the vehicle was not required to be seized, since it was not liable to be confiscated." 

For future guidance, where parties have not approached this Court, the Court issue the direction saying "The expression "reasonable delay" used in Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, more so, when we are dealing with confiscatory proceedings."

It was hoped that this order authored by the Chief Justice will help in curbing the indiscriminate use of the provisions of Bihar Prohibition and Excise Act, 2016 without application of legal mind by police officials.  

Despite this order of January 2020, the 3-Judge Bench headed by Chief Justice had reiterate his order once again in Sheetal Sahu v The State Of Bihar on 12 October, 2020. It observed: "Be that as it may, at this point in time, we Patna High Court CWJC No.8483 of 2020 dt.12-10-2020 refrain from passing any order under the contempt jurisdiction, but direct the Chief Secretary, Government of Bihar, to file his personal affidavit dealing with each one of the issues highlighted (supra) as also elaborately indicating the mechanism which the State has or desires to evolve so as to prevent the litigants from directly approaching the Court for release of the vehicle and also ensuring early completion of the proceedings, be it confiscatory in nature or in an appellate jurisdiction, under the provisions of the Bihar Prohibition and Excise Act, 2016."

The Court further observed that "Learned counsel for the State undertakes to communicate the order to all concerned, including the District Magistrate and no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act, for such order is available on the official website of the High Court & can be downloaded and/or verified from there, in the times of current Pandemic Covid-19. We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law, within the time schedule fixed, failing which the vehicle/property/things liable for confiscation shall be Patna High Court CWJC No.8483 of 2020 dt.12-10-2020 deemed to have been released without any further reference to this Court." The CWJC No. 8483 refers to Sheetal Sahu case. It is apparent that repeated order of the High Court is not being implemented by the police officials. 


Indian State Wants the Right to be Absent for Protection of Farmers and Citizens

After granting the right to anonymity, the ultimate privilege to the investors and donors of ruling parties, the Indian State wants the right to be absent in the face of cries for social, political and economic injustice in general and for farmers’ demand for justice in particular. What started as seemingly small amendments in the Companies Act in 2002 and 2013 for corporate political donations has emerged as an exercise in rewriting the political and electoral geography in the aftermath of amendments in relevant laws through Finance Acts of 2017 and 2018. It has paved the way for forging relationships that enable and facilitate accumulation by dispossession. The decriminalisation of some 60 corporate crimes through yet another amendment during the pandemic has left not even an iota of doubt about the quid pro quo underway. Indian citizens in general and farmers in particular have been able to identify some of these corporate investors and donors who have vindicated the scholars of white-collar crimes. These scholars have contended for long that corporations which used to be artefacts of laws have transformed their roles, now they have ensured that laws have become artefacts of corporations.

The enactment of the three illegitimate agriculture market laws are linked to the amendment in the companies act and related laws for electoral finance and anonymous foreign donations. These investors and donors have coerced the State to withdraw from its responsibilities towards farmers, the producers of primary agricultural commodities including women, land owners, tenants, sharecroppers, farm workers, plantation workers, milk producers and everyone engaged in crop cultivation, shifting cultivation, apiculture, sericulture, vermiculture and agro-forestry.

Farmers are demanding presence of the State to safeguard economic survival of majority of Indian households, national dignity, civilizational heritage and their future. Ironically, State is resisting their demand under the colossal influence of investors and donors of ruling parties. State wants to escape from its responsibilities. State wants the right to be remain unaccountable by refusing to exercise its role as a regulator.

A bizarre situation is being witnessed wherein defenders of the regulatory role of the Indian State, the 500 farmers’ organisations are being defined as Un-Indian by the news channels owned by the investors and donors of ruling parties. The latter have made the State act like an adversary with cruelty towards the villagers and the farmers. These purveyors of news are establishing a weird, stupid and vulgar cultural norm devoid of truth and reason because of their political relevance unmindful of the fact that Seventh Schedule of Constitution of India that allocates subjects on which central legislature and state legislature can legislate, is being made irrelevant. “Markets” are specifically mentioned as a State subject in entry 28 of List II under the Seventh Schedule. They are unmindful of states’ right to legislate on state subjects- agriculture and market.

State Executive has been undermining judiciary in instalments through tribunalization in the aftermath of the verdict of Allahabad High Court against I. Gandhi in 1975, now it is barring the jurisdiction of all civil courts as well and confining it to the jurisdiction of Sub-Divisional Magistrate and Collector or Additional Collector for dispute resolution under the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020. This law provides for trade area beyond Section 13 of the Act states that “No suit, prosecution or other legal proceedings shall lie against the Central Government or the State Government, or any officer of the Central Government or the State Government or any other person in respect of anything which is in good faith done or intended to be done under this Act or of any rules or orders made thereunder.” The fact remains under the law "person" includes an individual; a partnership firm; a company; a limited liability partnership; a co-operative society; a society; or any association or body of persons duly incorporated or recognised as a group under any ongoing programmes of the Central Government or the State Government. It is apparent that the investors and donors of the ruling parties have made themselves immune from “suit, prosecution or other legal proceedings” in respect of anything under the guise of being “any other person” mentioned in this legal provision. It is depriving every present and future Indian including farmers of the absolute fundamental right to constitutional remedy recognized under the Constitution of India.

It is noteworthy that Section 3 sub-section 1 of Essential Commodities Act, 1955 deals with the powers to control production, supply, distribution, etc., of essential commodities. It states that "If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.” This provision of 1955 along with the amendment of 1967 with regard to defence and military operations, makes the continued presence of State quite explicit in both the ordinary and extraordinary circumstances in keeping with the constitutional obligations.

Reversing the pre-existing provision, Section 2 of Essential Commodities (Amendment) Act, 2020 [Removal of Stockholding Limits Act] inserts a new sub-section (1A) after sub-section 1 of Section 3 of the Essential Commodities Act, 1955. The new sub-section states that “Notwithstanding anything contained in sub-section (1) of Section 3 “the supply of such foodstuffs, including cereals, pulses, potato, onions, edible oilseeds and oils, as the Central Government may, by notification in the Official Gazette, specify, may be regulated only under extraordinary circumstances which may include war, famine, extraordinary price rise and natural calamity of grave nature”. It is evident that State is withdrawing from its role to perform regulatory role with regard to control production, supply, distribution, etc., of essential commodities. It is apparent that the new amendment has failed to factor in the fact that India is currently faced with extraordinary circumstances of war, extraordinary price rise and natural calamity of grave nature like pandemic. The legal provisions of 1955 and 1967 were enacted with the realization that in a vast and diverse country like India, even ordinary circumstances are extraordinary in nature. Contrary to the constitutional obligations, this new provision makes the State absent in ordinary circumstances.

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 provides for a national framework on farming agreements that claims to protect and empower farmers to engage with agri-business firms, processors, wholesalers, exporters or large retailers for farm services and sale of future farming produce at a mutually agreed remunerative price framework in a fair and transparent manner. "Farming agreement" refers to a written agreement entered into between a farmer and a Sponsor, or a farmer, a Sponsor and any third party, prior to the production or rearing of any farming produce of a predetermined quality, in which the Sponsor agrees to purchase such farming produce from the farmer and to provide farm services. It includes "trade and commerce agreement", where the ownership of commodity remains with the farmer during production and he gets the price of produce on its delivery as per the agreed terms with the Sponsor. It also includes "production agreement", where the Sponsor agrees to provide farm services, either fully or partially and to bear the risk of output, but agrees to make payment to the farmer for the services rendered by such farmer. Every such agreement is required to provide for a conciliation process and formation of a conciliation board consisting of representatives of parties to the agreement. Where the parties to the farming agreement fail to settle their dispute under that section within a period of thirty days, then, any such party may approach a Sub-Divisional Magistrate or later a Collector or Additional Collector in appeal for deciding the disputes under farming agreements. Under this law too it is provided that no civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any dispute action taken by these district authorities. In this manner, the State has withdrawn the judicial function of its civil courts and expressed touching faith in the tried, tested and failed judicial competence of subordinate executive authorities.

While feigning to be seeking right to be absent, Indian State is uniting executive powers and judicial powers in the same person. It is evidently an exercise in blasphemy against constitutionalism and Constitution of India and the sacred theory of separation of powers enunciated by French philosopher, Montesquieu in his The Spirit of Law influencing framing of democratic Constitutions. These three farm market laws are contrary to the theory of separation of powers and principles of constitutionalism which secures nations from "despotism".

* (The author is a law and public policy researcher and a member of the steering committee of Nation for Farmers|

Source: mainstreamweekly.net/article10227.html

Wednesday, December 23, 2020

Supreme Court vindicates reputation of 3 judges dismissed by State of Bihar

The General Administration Department of Government of Bihar on December 21, 2020 issued a four page long notification dated December 17, 2020 regarding dismissal of three judges of the lower court -- Hari Niwas Gupta, Komal Ram and Jitendra Nath Singh -who were allegedly caught by Nepal Police with women in Metro Hotel in Nepal in 2013. The order was issued pursuant to the letter of Registrar General, Patna High Court dated September 3, 2020 in the light of Supreme Court's verdict dated November 8, 2019 in Hari Niwas Gupta v State of Bihar [Civil Appeal No. 3501 of 2017]. The fact which emerges from the verdict is that there is nothing on record to show that Nepal Police ever corroborated the allegation in question. These three judicial officers were working as Principal Judge, Family Court, Samastipur; Chief Judicial Magistrate, Araria; and ad-hoc Additional District and Sessions Judge, Araria, respectively. It is apparent from the verdict of Supreme Court's 2-Judge Bench that all the three judicial officers have retired during the pendency of the case. The order dated November 8, 2019 categorically states that "We also clarify that we have expressed no opinion on the merits of the allegations made against the three judicial officers. There would be no order as to costs." There is nothing on record to corroborate the veracity of the news item was published in a local Nepali daily (Udghosh) on 29th January 2013 that on 26th January 2013 the Nepal Police had apprehended three judicial officers belonging to the State of Bihar as they were allegedly found in a compromising position with three Nepali women in a guest house at Biratnagar, Nepal. The Supreme Court's verdict dated November 8, 2019 records that another news item published by the same daily on 22nd February 2013, "expressed regret over erroneous reportage."

Subsequent to these allegations Patna High Court had addressed a letter to the Ministry of Home Affairs, Government of India to collect and ascertain information, details and records. By communication dated 20th June 2013, the Deputy Secretary, Ministry of Home Affairs, Government of India, had informed the High Court that the mobile phones of the judicial officers were simultaneously switched off for a long time on 26th and 27th January 2013 and when the phones were active during that period, they were within the range of the tower at Forbesganj town, which indicated that the judicial officers were together in proximity to Nepal, and not at the place of their posting. The Supreme Court's verdict  also records that "the Superintendent of Police, Araria appeared to have held a bias against the judicial officers." 

There is nothing in the Court's verdict to show that finding of the Deputy Secretary in question was placed on record for examination by the Court. Supreme Court's 23 page long order does not authenticate the claim made by a Deputy Secretary of Ministry of Home Affairs about the whereabouts of the judicial officers.

It is recorded that the Standing Committee of the High Court in its meeting held on 5th February, 2014 had resolved that the judicial officers should be placed under suspension and also that they should be dismissed from service without an inquiry in exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution of India, read-with Rules 14 and 20 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. At the Full Court of the judges of the High Court held on 10th February, 2014, the recommendation of the Standing Committee was accepted and Full Court resolution was passed for dismissal of the judicial officers from judicial service in the State  Government of Bihar, dispensing with the disciplinary proceedings by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. The recommendation of the Full Court was accepted by the State Government and vide common order dated 12th February 2014 issued by the Governor of the State of Bihar the judicial officers were dismissed from service.

The judicial officers had challenged the dismissal order by filing separate writ petitions, which were allowed by the Division Bench of the High Court (‘Division Bench’ for short), vide judgment dated 19th May 2015, primarily on the ground that the Full Court had contravened clause (b) of the second proviso to Article 311(2) of the Constitution by not recording reasons for dispensing with the disciplinary inquiry at the time of recommending dismissal of the judicial officers. The note relied upon by the Registry of the High Court as purportedly recording the reasons for dispensing with the inquiry, it was observed, did not contain any date or signatures and lacked authenticity. Thus, the High Court had not been able to place on record any material to show that any reasons were recorded for dispensing with the disciplinary proceedings.

While setting aside the order of dismissal, in the case of the judicial officers, dated 12th February 2014 for failure to record reasons for dispensing with the inquiry, the Division Bench had given the following liberty and discretion to the High Court: “The writ petitions are, accordingly, allowed, and the common order dated 12.02.2014 is set aside. It is made clear that in case, the High Court intends to invoke its power under Sub-clause (b) of the 2nd proviso to Article 311 (2) of the Constitution of India, it shall be under obligation to record reasons, at the appropriate stage and follow the prescribed procedure. It is brought to our notice that two (sic- one) of the officers have attained the age of superannuation, during the pendency of the writ petitions. We direct that as a result of the judgment in these writ petitions, the petitioner, who is already in service, shall be deemed to be under suspension, and the other two would be deemed to be continuing in service for the limited purpose of enabling the departmental proceedings to continue. The High Court shall take a decision in this behalf, within a period of two months from today. If no decision is taken in this regard, the proceedings would lapse and the petitioners would be entitled for all the consequential benefits, as though the proceedings have been set aside in their entirety. If, on the other hand, the proceedings are initiated, the petitioners shall await the outcome thereof. While the one who is in service shall be paid subsistence allowance, the other two shall be paid provisional pension to the extent of 25%, forthwith..."

The judicial officers have challenged this afore-quoted portion and the liberty granted to the High Court to invoke the power under clause (b) of the second proviso to Article 311(2) of the Constitution at an appropriate stage with the requirement to record reasons and follow the prescribed procedure, on the ground that the liberty granted permits the High Court to record reasons post the earlier order of dismissal dated 12th February 2014, which is contrary to law and the Constitution.  

Striking down and setting aside the earlier order dated 12th February, 2014 under clause (b) of the second proviso to Article 311(2) for failure to record reasons for dispensing with the departmental inquiry annuls the earlier order, which ceases to exist and stands obliterated, but does not adjudicate on the merits of the allegations so as to attract the bar of res judicata.

In its dismissal order, Supreme Court observes "Conscious of the seriousness of the allegations and the reason for allowing the writ petition, the Division Bench (of High Court) was justified in not barring the High Court from fresh application of mind and from invoking clause (b) of the second proviso to Article 311(2) if required and justified in accordance with law. The expression ‘at appropriate stage’ used by the Division Bench is not a direction for initiation of a regular departmental inquiry nor does it prohibit recourse to clause (b) to the second proviso of Article 311(2) of the Constitution in accordance with law. We do not see such fetters and restrictions placed on the High Court by the Division Bench."

The Court has recorded the argument of the counsel appearing for Komal Ram and Jitendra Nath Singh  who raised a "contention relating to the power of the High Court to dispense with the inquiry under clause (b) of the second proviso to Article 311 of the Constitution. The contention is that this power exclusively vests with the Governor alone who has to satisfy himself and record in writing the reasons why it is not reasonably practical to hold an inquiry. Reliance was placed on the following observations in the Constitutional Bench judgment of this Court in State of West Bengal v. Nripendra Nath Bagchi," It reads:“...within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by clause (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.” 

Responding to this contention, the Court observed that "it is not to be expected that the High Court would run to the Government or the Governor in every case of indiscipline however small and which may not even require the punishment of dismissal or removal. These Articles go to show that by vesting “control” in the High Court the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution. This construction is also in accord with the Directive Principles in Article 50 of the Constitution which reads: '50. The State shall take steps to separate the judiciary from the executive in the public services of the State'."

Significantly, the Supreme Court has recorded that "During the course of hearing before us, it was pointed out that the Full Court had subsequently again recommended dismissal of the judicial officers dispensing with the departmental inquiry in the exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution vide recommendation dated 13th August 2015 However, the matter is pending with the State Government..." 

Patna High Court had constituted a 5-member panel in this regard on May 22, 2015. Following the report of this panel dated August 3, 2015. a full court of Patna High Court sat and took a reasoned decision on August 7, 2015 which was communicated to the the Registrar General of the Patna High Court on August 13, 2015. It seems two concurrent proceedings were underway in this case. 

Hari Niwas Gupta, one of the three dismissed judges filed an appeal against the decision of the full court of the Patna High Court in the Supreme Court on September 1, 2015 which was registered as Civil Appeal. No. 3105 of 2017 on February 20, 2017. Besides this S.L.P.(C) CC No. 16385 of 2015 was registered on September 2, 2015 and SLP(C) No. 26473 of 2015 was registered on September 11, 2015 too was clubbed together. Subsequently, two other dismissed judges also filed their appeals. The fact remains that the case of Hari Niwas Gupta got admitted in the Supreme Court on January 19, 2016. 

On the very first day of hearing, on September 11, 2015, a 3-judge Bench of Chief Justice and Justices C. Nagappan and Amitava Roy had issued an order saying, "In the meantime, the operation of the impugned judgment and order shall remain stayed." 

The order of 2-judge Bench of Justices Mohan M. Shantanagoudar and Sanjiv Khanna dated  November 8, 2019 dismissing the civil appeal of Hari Niwas Gupta along with the civil appeal Nos. 3106-3017 of Komal Ram and Jitendra Nath Singh records that "we were informed that no final order has been passed in view of the stay order dated 11th September 2015 passed by this Court." 

Pursuant to the Court's order, according to the notification of the Department of General Administration dated December 17, 2020, Government of Bihar, the dismissal of these judicial officers will be effective from February 12, 2014. 

The concluding paragraph of the Supreme Court's verdict dated  November 8, 2019 states that "the appeals are dismissed and the stay order is vacated" but it does not record the fact that High Court's order was stayed by a Chief Justice headed 3-Judge Bench. Can a 2-Judge Bench vacate the stay order of 3-Judge Bench?

The fact remains the penultimate paragraph of the verdict observes: "It was also initially urged and argued that the order of dismissal under clause (b) of the second proviso to Article 311(2) of the Constitution cannot be passed against the officer who has retired. We were informed that the other two officers had also retired during the pendency of the present appeals. Therefore, at best the pensionary and retirement benefits can be forfeited and denied, but an order of dismissal from service by invoking powers under clause(b) of the second proviso to Article 311(2) cannot be passed against the appellants - judicial officers. Subsequently, the counsel for the appellants - judicial officers did not press this contention as the matter is still pending before the State authorities, and the final order is yet to be passed. A challenge cannot be made in anticipation. Further, this challenge was also not the subject matter of the writ petitions in which the impugned order was passed and would constitute an entirely new cause of action. Counsels for the appellants - judicial officers have, accordingly, reserved their right to challenge the order if, and as and when it is passed. In view of the aforesaid position, we would not go into the merits of the said contention and leave the issue open. It is equally open to the respondents, that is, the State of Bihar and the High Court to examine this contention." It gave an opportunity to the State of Bihar and the High Court to review and reverse their orders which seems to have been based on unverifiable allegations. 

It also implies that Supreme Court has granted liberty to the three judicial officers to challenge the notification of General Administration Depart of Government of Bihar. All the documents and proceedings on record make it crystal clear that the dismissal was approved "without any inquiry" into the questionable allegations. It appears to be a classic case of State making an allegation and concluding that its allegations true without any inquiry. Can public institutions safeguard their legitimacy by concluding the veracity of their own allegations admittedly without any credible inquiry?  

Gopal Krishna
  

Supreme Court to hear Aurangabad District Judge Assault case on 15 January

On December 16, 2020, Supreme Court's three-judge bench headed by Justice AM Khanwilkar comprising of Justices B R Gavai and Krishna Murari sought the response of the Bihar government on a plea demanding judicial inquiry into physical attack on Dr. Dinesh Kumar Pradhan, a Bihar District judge by a police sub-inspector. The court has issued notice to the State of Bihar and posted the case for further hearing after 4 weeks in Vishal Tiwari vs. Union of India. The case was filed on November 2, 2020. It was registered on November 4, 2020 with Writ Petition.(Criminal) No.345/ 2020. It was verified on November, 2020. Union of India, State of Bihar, Director General of Police, Bihar and Superintendent of Police, Aurangabad are the respondents. The Sub-Inspector in question too has been impleaded as a respondent after Court had ordered petitioner, advocate Vishal Tiwari to do so. Upon  hearing the petitioner the Court passed an order which reads: "Application for impleadment is allowed. Cause-title be amended accordingly. Issue notice to the respondents, including the newly added respondents, returnable in four weeks." 

Earlier, on November 26, the Bench of Justices Khanwilkar and Ajay Rastogi had ordered: "Permission to appear and argue in person is granted. As prayed, petitioner is permitted to amend the petition to implead the concerned party as party-respondent(s) and also to file additional documents."

The Office Report of the Supreme Court dated November 26, 2020 states that " It is submitted that the instant matter pertains to petitioner-in-person, who is an Advocate and member of Supreme Court Bar Association.  It was telephonically communicated to petitioner-in-person regarding the date of hearing of matter."

The writ was filed in the aftermath of attack on District Judge in Bihar's Aurangabad seeking appropriate directions against the errant police officials who were allegedly involved in assaulting the District Judge, Dr. Dinesh Kumar Pradhan.

"Strict action must be taken against those involved in such kind of acts. This is an attack not against a judge, but on the judiciary," Vishal Tiwari has sought direction from the Supreme Court to set up a two-member inquiry commission in the matter for collecting the facts and evidence and for recording the evidence. He has prayed inclusion of sitting High Court judges in the inquiry commission who shall submit the report within a month and to initiate criminal contempt proceedings and punishment under The Contempt of Courts Act, 1971, against the erring police officials. He is seeking appropriate directions for punishing the higher police officials (Director General of Police, Bihar, Superintendent of Police, Aurangabad) for their alleged inaction. The prime accused is a Sub Inspector named Pranav of the Town police station, Aurangabad who allegedly abused, threatened, assaulted and attacked Pradhan, when he was on his evening walk on October 21. The Sub Inspector accompanied by paramilitary personnel was a flag march that time. It has been found that Pranav had a grudge against the judicial officer, Pradhan, as he had taken action against him and a few other police officers for dereliction of duty a few months back when he was the Aurangabad chief judicial magistrate.

The unprecedented, unwarranted assault and intimidation took place on October 21, 2020. Bihar Judicial Services Association and Association for Judges, Gujarat has condemned the incident. The Bihar Judicial Services Association wrote a letter to Bihar DGP on October 24, 2020  seeking action against erring officers. .The case is likely to be heard again in the Supreme Court on January 15, 2021.