Supreme Court's Judgment in Adani Group investigation case is among its "Landmark Judgments"

Supreme Court's judgment in Adani Group investigation case is one of the 28 landmark cases of 2024. On January 3, 2024, Supreme Court's bench of Chief Justice (Dr.) Dhananjaya Y. Chandrachud and Justices Jamshed B. Pardiwala, Justice Manoj Misra passed a 46 page long judgement in  Vishal Tiwari vs Union of India. It adjudicated on the questions like: what is the scope of judicial review over the regulatory functions of the Securities and Exchange Board of India (SEBI) and whether the Supreme Court should transfer the investigation into the Adani Group from SEBI to a Special Investigation Team (SIT).

This case was heard in the context of the publication of a report of Hindenburg Research, a American investment research firm on Adani Group. The report entitled Adani Group: How The World’s 3rd Richest Man Is Pulling The Largest Con In Corporate History was published on January 24, 2023. The Court's "Landmark Judgment Summaries" launched on September 27, 2024 refers to it in the backdrop of the celebration of its 75th year. The case was filed on February 6, 2023.  It was registered on February 8, 2023 and verified on February 9, 2023. It was admitted on March 2, 2023. The respondents were Union of India, Ministry of Home Affairs, Reserve Bank of India and SEBI. It was listed for hearing on 10 occasions.

Hindenburg Research revealed the findings of our 2-year investigation, presenting evidence that the INR 17.8 trillion (U.S. $218 billion) Indian conglomerate Adani Group has engaged in a brazen stock manipulation and accounting fraud scheme over the course of decades. The January 2023 repprt stayed that Gautam Adani, Founder and Chairman of the Adani Group, has amassed a net worth of roughly $120 billion, adding over $100 billion in the past 3 years largely through stock price appreciation in the group’s 7 key listed companies, which have spiked an average of 819% in that period. Its research drew attention towards the financials of Adani Group at face value. Its 7 key listed companies have 85% downside purely on a fundamental basis owing to sky-high valuations. The report pointed out that the key listed Adani companies have taken substantial debt, including pledging shares of their inflated stock for loans, putting the entire group on precarious financial footing. 5 of 7 key listed companies have reported ‘current ratios’ below 1, indicating near-term liquidity pressure.

The report threw light on Adani Group’s very top ranks and how 8 of 22 key leaders in it are Adani family members. The Group's “a family business” places control of the group’s financials and key decisions in the hands of a few. 

The report compiled details about four government fraud investigations which alleged money laundering, theft of taxpayer funds and corruption, totaling an estimated U.S. $17 billion. Adani family members allegedly cooperated to create offshore shell entities in tax-haven jurisdictions like Mauritius, the UAE, and Caribbean Islands, generating forged import/export documentation in an apparent effort to generate fake or illegitimate turnover and to siphon money from the listed companies. Gautam Adani’s younger brother, Rajesh Adani, was accused by the Directorate of Revenue Intelligence (DRI) of playing a central role in a diamond trading import/export scheme around 2004-2005. The alleged scheme involved the use of offshore shell entities to generate artificial turnover. Rajesh was arrested at least twice over separate allegations of forgery and tax fraud. He was subsequently promoted to serve as Managing Director of Adani Group. Adani’s brother-in-law, Samir Vora, was accused by the DRI of being a ringleader of the same diamond trading scam and of repeatedly making false statements to regulators. He was subsequently promoted to Executive Director of the Adani Australia division. His s elder brother, Vinod Adani was referred to as “an elusive figure” who has been at the center of the government’s investigations into Adani for his alleged role in managing a network of offshore entities used to facilitate fraud.

The research report catalogued the entire Mauritius corporate registry and uncovered that Vinod Adani  manages 38 offshore shell entities on his own or through close associates. It dentified entities that are also surreptitiously controlled by Vinod Adani in Cyprus, the UAE, Singapore, and several Caribbean Islands.  

The report noted that several of the Vinod Adani-associated entities do not show signs of operations, including no reported employees, no independent addresses or phone numbers and no meaningful online presence. Despite this, they have collectively moved billions of dollars into Indian Adani publicly listed and private entities, often without required disclosure of the related party nature of the deals. The report claimed that it has uncovered efforts designed to mask the nature of some of the shell entities. For example, 13 websites were created for Vinod Adani-associated entities. Notably, several were formed on the same days, featuring only stock photos, naming no actual employees and listing the same set of nonsensical services, such as “consumption abroad” and “commercial presence”. The Vinod-Adani shells seem to serve several functions, including (1) stock parking / stock manipulation (2) and laundering money through Adani’s private companies onto the listed companies’ balance sheets in order to maintain the appearance of financial health and solvency. Publicly listed companies in India are subject to rules that require all promoter holdings (known as insider holdings in the U.S.) to be disclosed. Rules also require that listed companies have at least 25% of the float held by non-promoters in order to mitigate manipulation and insider trading. It pointed out that 4 of Adani’s listed companies are on the brink of the delisting threshold due to high promoter ownership.

The research indicated that offshore shells and funds tied to the Adani Group comprise many of the largest “public” (i.e., non-promoter) holders of Adani stock, an issue that would subject the Adani companies to delisting, were Indian securities regulator SEBI’s rules enforced. Many of the supposed “public” funds exhibit flagrant irregularities such as being (1) Mauritius or offshore-based entities, often shells (2) with beneficial ownership concealed via nominee directors (3) and with little to no diversification, holding portfolios almost exclusively consisting of shares in Adani listed companies. Hindenberg claimed that the Adani Group has been able to operate a large, flagrant fraud in broad daylight largely because investors, journalists, citizens and even politicians have been afraid to speak. It posed 88 questions in the conclusion of its report.

Its report accused the Adani Group of companies of violating SEBI regulations, manipulating stock prices, and failing to disclose critical financial information. This report led to a significant decline in the share price of Adani Group of companies and consequently an erosion of investor wealth. Several petitions were filed before the Supreme Court concerning the need to protect investors from market shocks and investigate the Adani Group. The Court in its order dated 2 March 2023, directed SEBI to investigate the allegations of potential regulatory violations by the Adani Group. An expert committee was also established to assess the situation and recommend measures to enhance investor protection. The petitioners sought to cancel certain amendments made to SEBI (Foreign Portfolio Investments) Regulations, 2014 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (SEBI Regulations) and requested the formation of a SIT to oversee the investigation. On May 6, 2023 the expert committee submitted its report and SEBI filed a status report on August 25, 2023. As on date of the judgment, SEBI had completed twenty two out of the twenty four investigations.

In its judgement, the Supreme Court has held that the power of the Courts to interfere with the regulatory functions of SEBI is limited. The Court did not find any valid grounds to cancel the amendments made to SEBI Regulations. The Court held that there was no apparent failure in regulation by SEBI and hence there was no need to transfer the investigation to an SIT. The Court directed the Union Government and SEBI to consider the suggestions made by the expert committee to strengthen the regulatory framework. The judgment of the court was authored by Chief Justice Dr. Chandrachud.

The Supreme Court observed that the Court cannot act as an appellate authority to assess the correctness of policies formulated by statutory regulators like SEBI. Judicial review is limited to assessing whether a policy violates fundamental rights, constitutional provisions, statutory laws, or is manifestly arbitrary. The Court further held that in technical areas, particularly economic and financial matters, courts should defer to the expertise of regulators who have considered expert opinions in formulating their policies. It upheld SEBI’s regulations, stating that the agency had properly explained the evolution and rationale behind its regulatory framework and that the procedures followed were not illegal or arbitrary.  It found no evidence of regulatory failure by SEBI in its investigation into the Adani Group. The Court observed that its authority under Article 32 and Article 142 of the Constitution to transfer investigations should be used sparingly and only in extraordinary circumstances. The Court cannot intervene unless the investigating authority shows clear, willful, and deliberate inaction in conducting the investigation.

 

The attempt to access Supreme Court's website for one of its Landmark Judgements showed "Warning:Potential Security Risk Ahead". The Court's verdict on SEBI's probe into Adani Group relied on Justice Sapre led Expert Committee which included Nandan Nilekani and K.V. Kamath

The petitioner had challenged SEBI's investigation into the Adani Group and sought constitution of Special Investigation Team (SIT) to probe it conduct.  

In its first order dated February 10, 2023, the Court observed: "We have indicated to the Solicitor General, the concerns of the Court over the loss of investor wealth in the securities’ market over the past several
weeks and the portents for the future. There is a need to review existing regulatory mechanisms in the financial sector to ensure that they are duly strengthened. These regulatory mechanisms must be robust enough to protect Indian investors against volatility of the kind which has been witnessed in the recent past. An assessment has to be made of the regulatory framework, relevant causal factors and the mechanisms necessary for the stable operation and development of the securities market. We have suggested to the Solicitor General that he may seek instructions on whether the Government of India would facilitate the constitution of an expert committee for an overall assessment of the situation, and if so, to place its suggestions on the constitution and remit of the committee on the next date. Meantime the Solicitor General shall place on the record a brief note on factual and legal aspects so as to further the deliberations during the course of the next hearing. The Solicitor General has submitted that the Securities and Exchange Board of India has been closely monitoring the situation and continues to do so."

In its second order dated February 13, 2023, the Court's order noted: "Mr Tushar Mehta, Solicitor General, states that in pursuance of the previous order of this Court, the Union Government would file its submission note and circulate a soft copy to the Court Master by 15 February 2023. A copy of the Note has been handed over to the petitioners who appear in person."

In its third order, the Court's order indicated that arguments have been heard and the order was reserved. 

In its fourth order dated March 2, 2023, the Court issued certain directions. It reads: "In terms of the reportable order, the following directions are issued: “14. In order to protect Indian investors against volatility of the kind which has been witnessed in the recent past, we are of the view that it is appropriate to constitute an Expert Committee for the assessment of the extant regulatory framework and for making recommendations to strengthen it. We hereby constitute a committee consisting of the following members: a. Mr. O P Bhatt; b. Justice J P Devadhar (retired) c. Mr. KV Kamath; d. Mr. Nandan Nilekani; and e. Mr. Somashekhar Sundaresan. The Expert Committee shall be headed by Justice Abhay Manohar Sapre, a former judge of the Supreme Court of India. 15. The remit of the Committee shall be as follows:
a. To provide an overall assessment of the situation including the relevant causal factors which have led to the volatility in the securities market in the recent past;
b. To suggest measures to strengthen investor awareness;
c. To investigate whether there has been regulatory failure in dealing with the alleged contravention of laws pertaining to the securities market in relation to the Adani Group or other companies; and
d. To suggest measures to (i) strengthen the statutory and/or regulatory framework; and (ii) secure compliance with the existing framework for the protection of investors.
16. The Chairperson of the Securities and Exchange Board of India is requested to ensure that all requisite information is provided to the Committee. All agencies of the Union Government including agencies connected with financial regulation, fiscal agencies and law enforcement agencies shall co-operate with the Committee. The Committee is at liberty to seek recourse to external experts in its work.
17. The honorarium payable to the members of the Committee shall be fixed by the Chairperson and shall be borne by the Union Government. The Secretary, Ministry of Finance shall nominate a senior officer who will act as a nodal officer to provide logistical assistance to the Committee. All the expenses incurred in connection with the work of the Committee shall be defrayed by the Union Government.
18. The Committee is requested to furnish its report in sealed cover to this Court within two months.”

The order of the Court dated May 17, 2023 Justice Sapre headed Expert Committee submitted its report. The order reads: "The Expert Committee is requested to continue to assist the Court. The Committee may hold further deliberations in the meantime. The Committee would be requested to take up any further aspects or suggestions as may be formulated by the Court, following the course of deliberations when the
proceedings are next listed for hearing."

The July 11, 2023 order reads:"The Solicitor General informs the Court that SEBI has filed a response on issues pertaining to its functioning, together with an IA, to the report which was submitted by the Expert Committee. The response by SEBI be circulated to the Court and all counsel. Mr Prashant Bhushan, counsel, states that in Writ Petition (Civil) No 201 of 2023, response has been submitted to the report of the Expert Committee."

The November 24, 2023 order stated that arguments have been concluded and judgment was reserved.

The January 3, 2024 judgement reads:In terms of the signed reportable judgment, the petitions are disposed of with the following conclusion:
“67. In a nutshell, the conclusions reached in this judgement are summarized below:
i. The power of this Court to enter the regulatory domain of SEBI in framing delegated legislation is limited. The court must refrain from substituting its own wisdom over the regulatory policies of SEBI. The scope of judicial review when examining a policy framed by a specialized regulator is to scrutinise whether it violates fundamental rights, any provision of the Constitution, any statutory provision or is
manifestly arbitrary;
ii. No valid grounds have been raised for this Court to direct SEBI to revoke its amendments to the FPI Regulations and the LODR Regulations which were made in exercise of its delegated legislative power. The procedure followed in arriving at the current shape of the regulations does not suffer from irregularity or illegality. The FPI Regulations and LODR Regulations have been tightened by the amendments in question;
iii. SEBI has completed twenty-two out of the twenty-four investigations into the allegations levelled against the Adani group. Noting the assurance given by the Solicitor General on behalf of SEBI we direct SEBI to complete the two pending investigations expeditiously preferably within three months;
iv. This Court has not interfered with the outcome of the investigations by SEBI. SEBI should take its investigations to their logical conclusion in accordance with law;
v. The facts of this case do not warrant a transfer of investigation from SEBI. In an appropriate case, this Court does have the power to transfer an investigation being carried out by the authorized agency to an SIT or CBI. Such a power is exercised in extraordinary circumstances when the competent authority portrays a glaring, willful and deliberate inaction in carrying out the investigation. The threshold for the transfer of investigation has not been demonstrated to exist;
vi. The reliance placed by the petitioner on the OCCPR report to suggest that SEBI was lackadaisical in conducting the investigation is rejected. A report by a third-party organization without any attempt to verify the authenticity of its allegations cannot be regarded as conclusive proof. Further, the petitioner’s reliance on the letter by the DRI is misconceived as the issue has already been settled by concurrent findings of DRI’s Additional Director General, the CESTAT and this Court;
vii. The allegations of conflict of interest against members of the Expert Committee are unsubstantiated and are rejected;
viii. The Union Government and SEBI shall constructively consider the suggestions of the Expert Committee in its report detailed in Part F of the judgment. These may be treated as a non-exhaustive list of recommendations and the Government of India and SEBI will peruse the report of the Expert Committee and take any further actions as are necessary to strengthen the regulatory framework, protect investors and ensure the orderly functioning of the securities market; and
ix. SEBI and the investigative agencies of the Union Government shall probe into whether the loss suffered by Indian investors due to the conduct of Hindenburg Research and any other entities in taking short positions involved any infraction of the law and if so, suitable action shall be taken." 

FPI Regulations refers to SEBI (Foreign Portfolio Investments) Regulations, 2014 and LODR Regulations refers to SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. OCCRP refers to Organized Crime and Corruption Reporting Project (OCCRP). DRI refers to Directorate of Revenue Intelligence. CESTAT refers to Commissioner of Customs before the Customs, Excise and Service Tax Tribunal.

The Court disposed of the pending applications, including applications for intervention/impleadment.

Supreme Court reverses Trial Court's 1992 verdict, High Court's 2015 verdict in a abduction and murder case of 1985

Neelam breathed her last in Simaltalla, Sikandra, Munger, Bihar on August 30, 1985 after her reported abduction by seven persons from the house which occurred on that day. The dead body of Neelam was not even discovered until the following morning. According to the post mortem report the death happened at 5 PM. But according to the informant the incident of abduction took place around 10:00 PM. Although, the post mortem report indicated that the death of the deceased was unnatural and the commission of murder can-not be ruled out. But no direct evidence on record proved the commission of murder by the accused persons. The link of causation between the accused persons and the alleged offence was found conspicuously missing.

An FIR was lodged against seven accused persons, namely –Krishna Nandan Singh, Ram Nandan Singh, Raj Nandan Singh, Shyam Nandan Singh, Bhagwan Singh, Vijoy Singh/Sharma and Tanik Singh. After investigation a chargesheet was filed. The Trial Court delivered the judgement in June 1992. The High Court delivered the judgement in March 2015 and the Supreme Court in September 2024. 

Supreme Court's Division Bench of Justices Bela M. Trivedi and Satish Chandra Sharma set aside the judgement of the Patna High Court's Division Bench comprising Justices Dharnidhar Jha and Amaresh Kumar Lal in a case arising out of 1985 case from Munger's Sikandra Thana on September 25, 2024. The High Court's 38 page long judgement was delivered on March 26, 2015.  It was authored by Justice Jha. 

In its 26 page long judgement, the Court concluded: "the findings of conviction arrived at by the Trial Court and the High Court are not sustainable. Moreover, the High Court erred in reversing the acquittal of A-6 and A-7. Accordingly, the impugned judgment as well as the judgment rendered by the Trial Court (to the extent of conviction of A-1 to A-5) are set aside, and all seven accused persons (appellants) are hereby acquitted of all the charges levelled upon them. The appellants are directed to be released forthwith, if lying in custody."

The Supreme Court has recorded that the prosecution did not examine the three natural witnesses of the incident namely, Doman Tenti, Daso Mistry and Kumud Ranjan Singh. "There is no explanation for non-examination of the natural eye witnesses." It has raised doubt about the conduct of Ramanand Singh (P.W.18) the informant who was the brother-in-law of Neelam, the deceased. Neelam was married to Ashok Kumar Singh who happened to be the brother of Ramanand Singh. He did not try to prevent the accused persons from entering the premises or from abducting the deceased or from taking away the deceased on their shoulders in front of his eyes. The Court has detected inconsistency in the testimonies of three Prosecution Witnesses who has submitted that while coming from Lakhisarai to Sikandra Chowk, Ghogsha came first, followed by Lohanda and Simaltalla. In such circumstances, their presence at Sikandra Chowk at 10:00 PM must be explained to the satisfaction of the Court. For, if they were going to their village, there was no occasion for them to come to Simaltalla as it did not fall on their way. But no such explanation is forthcoming from the material on record. It found it strange that the High Court too had detected it with regard to the testimony one of the Prosecution Witnesses but it failed to extend its finding to the other two Prosecution Witnesses who were similarly placed. It has inferred that "the so-called eye witnesses of the incident were actually accessories after the fact and not accessories to the fact." It renders the entire version of the prosecution as improbable and unreliable.

The Trial Court and High Court did not doubt the fact that Neelam was residing in her father’s house at Simaltalla but Supreme Court has reservations regarding its veracity. It noted that the investigating officer had inspected the house and no direct material, except some make-up articles, could be gathered so as to indicate that Neelam was actually residing there. The Court has recorded that Chando Devi, the sister of Ram Chabila Singh one of the tenants in the house was also residing in the same portion of the house but the High Court did take note of this fact but explained it away by observing that since Chando Devi was a widow, the make-up articles could not have belonged to her as there was no need for her to put on make-up being a widow. The judgement reads: "Mere presence of certain make-up articles cannot be a conclusive proof of the fact that the deceased was residing in the said house, especially when another woman was admittedly residing there. Furthermore, if Neelam was indeed residing there, her other belongings such as clothes etc. ought to have been found in the house and even if not so, the other residents of the same house could have come forward to depose in support of the said fact." Notably, the prosecution has not spotted any room in the entire house wherein the informant was residing. His own presence at the place of occurrence is doubtful.

The Court observed: "In our opinion, the observation of the High Court is not only legally untenable but also highly objectionable. A sweeping observation of this nature is not commensurate with the sensitivity and neutrality expected from a court of law, specifically when the same is not made out from any evidence on record."

The Court disapproved of the approach of the High Court in reversing the acquittal of Vijay Singh @ Vijay Kumar Sharma (Accused No. 6) and Tanik Singh @ Awadh Kishore Prasad (Accused No.7) "was not in line with the settled law pertaining to reversal of acquittals." It observed: "The Trial Court had acquitted the said two accused persons on the basis of a thorough appreciation of evidence and the High Court merely observed that their acquittal was based on the improbable statement of PW5 and since the evidence of PW5 stood excluded from the record, there was no reason left for the acquittal of A-6 and A-7. Pertinently, the High Court did not arrive at any finding of illegality or perversity in the opinion of the Trial Court on that count. Furthermore, it did not arrive at any positive finding of involvement of the said two accused persons within the sphere of common intention with the remaining accused persons. Equally, the exclusion of the evidence of PW5, without explaining as to how the evidence of PW2 and PW4 was not liable to be excluded in the same manner, was in-correct and erroneous." This is with reference to the three eye witnesses whose testimony appear unreliable. 

The Court noted that the High Court was well within its powers to appreciate the evidence on record in its exercise of appellate powers but "in order to reverse a finding of acquittal, a higher threshold is required." It underles that "For, the presumption of innocence operating in favour of an accused through-out the trial gets concretized with a finding of acquittal by the Trial Court. Thus, such a finding could not be reversed merely because the possibility of an alternate view was alive. Rather, the view taken by the Trial Court must be held to be completely unsustainable and not a probable view. The High Court, in the impugned judgment, took a cursory view of the matter and reversed the acquittal of A-6 and A-7 without arriving at any finding of illegality or perversity or impossibility of the Trial Court’s view or non-appreciation of evidence by the Trial Court."

The Court relied on the exposition of law in Sanjeev v. State of Himachal Pradesh (2022)., wherein the Supreme Court has summarized the position in this regard. It is well settled that while dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal. 

Justice Bela Trivedi led bench noted that "the case of the prosecution is full of glaring doubts as regards the offence of abduction", and "the offence of murder is entirely dependent on circumstantial evidence....The circumstantial evidence emanating from the facts sur-rounding the offence of abduction, such as the testimonies of eye witnesses, has failed to meet the test of proof and cannot be termed as proved in the eyes of law. Therefore, the foundation of circumstantial evidence having fallen down, no inference could be drawn from it to infer the commission of the offence under Section 302 IPC by the accused persons. It is trite law that in a case based on circumstantial evidence, the chain of evidence must be complete and must give out an inescapable conclusion of guilt. In the pre-sent case, the prosecution case is far from meeting that standard."

With regard to motive, the Court observed: "motive has a bearing only when the evidence on record is sufficient to prove the ingredients of the offences under consideration."

The Court observed: "Without the proof of foundational facts, the case of the prosecution cannot succeed on the presence of motive alone....The accused persons and the eyewitnesses belong to the same family and the presence of a property related dispute is evident. In a hypothetical sense, both the sides could benefit from implicating the other. In such circumstances, placing reliance upon motive alone could be a double-edged sword."

These seven accused persons were put on trial by the Sessions Judge who were charged under Sections 323, 302, 364, 449, 450, 380/34 and 120B of the IPC. The accused Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh were charged under Sections 342/34 of the IPC. The judgment of the Sessions Judge had acquitted the two accused, namely, Vijoy Singh Sharma and Tanik Singh of all the charges. The five other accused persons were convicted of committing offences under Sections 364/34 and 302/34 of the IPC. They were also acquitted of charges under Sections 449, 450, 380, 323 and 120B of the IPC. The five appellants, who had been convicted under Sections 364/34 and 302/34 of the IPC were heard on sentence and each of them was directed to suffer rigorous imprisonment for life under each of the two counts, the sentences being directed to run concurrently.

The High Court set aside the judgment of acquittal delivered by 12th Additional Sessions Judge, Munger on June 5, 1992 in respect of respondents Vijay Singh @ Vijay Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh by allowing the Government Appeal. It held the two guilty of committing offences under Sections 364/34 and 302/34 of the Indian Penal Code (IPC) and had directed each of them to suffer rigorous imprisonment on each of the two counts each for life. 

In his judgement, the High Court noted that the respondents had submitted that they had not committed the offences under Sections 364 and 302 of the IPC. He observed: the charges had been framed under Sections 364/34 and 302/34 of the Indian Penal Code. Section 34 of the Indian Penal Code does not define any substantive sentence rather it lays down a rule of evidence that if from material evidence, it is shown that the accused persons had acted in furtherance of their common intention, then even if the main act had been committed by any of them all of them was equally liable for the offence as if the same had been committed by him. In order to bringing the case of an accused into the purview of Section 34 of the Indian Penal Code, the Court has to find out as to whether there was any pre-meeting of mind or in other words had there been any consultations between the accused persons which could fall in the class of conspiracy hatched up by them to commit some unlawful act or an act which may not be unlawful if the means of committing it was unlawful. There could not be direct evidence in such matters and in most of the cases, the Court has to depend upon the facts and circumstances of the case so as to find out as to whether there had been pre-concert between the accused persons before they had embarked upon achieving their goal.

The High Court's judgement records that the respondents Vijay Singh @ Vijay Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh had been shown from the evidence, to have put the informant under wrongful confinement when they had taken him into the corner of the house near a well. The purpose of this act of the two respondents was only to eliminate any chances of resistance coming into the further acts of the other accused persons of capturing Neelam from inside the house and taking her away. The other accused persons entered inside the house and dragged Neelam out and lifted her to take her away and subsequently her dead body was found in a paddy field. Thus, the sharing of the common intention by contributing into the commission of the offence in their own way by the two respondents of the Governmental Appeal is clearly established. 

The High Court's judgement had "set aside the judgment of acquittal in respect of respondents Vijay Singh @ Vijay Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh by allowing the Government Appeal." The Court held "the two guilty of committing offences under Sections 364/34 and 302/34 of the Indian Penal Code and direct each of them to suffer rigorous imprisonment on each of the two counts each for life. In the result, the Government Appeal is allowed. The connected two criminal appeals appear of no merit and they are dismissed."

These five appellants had preferred the two criminal appeals against their conviction and sentence imposed upon them. The State of Bihar had preferred a separate appeal for challenging the acquittal of Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh. These appeals arose out of the same judgment. The High Court had heard them together and had disposed of by a common judgment.

Courts, Tribunals, Boards, Quasi-Judicial Authorities must mention names of officials who sign orders: Supreme Court

In compliance with the judgment of Supreme Court dated May 7, 2024 passed in Criminal Appeal No. 2411 of 2024 wherein certain directions have been issued to all the High Courts, the Registrar General of the Patna High Court has issued a circular dated September 24, 2024. The circular has been forwarded to the Secretary General, Supreme Court of India, Director, Bihar Judicial Academy, Patna and all District and Sessions Judges of Bihar for circulation amongst all the judicial officers working in their respective judgeships.

The Court's directions to all the High Courts is as under:-

1. In all the orders passed by the Courts, Tribunals, Boards and the Quasi-Judicial Authorities the names of the Presiding Officer and/or the Members who sign the orders shall be mentioned. In case any identification number has been given, the same can also be added.

2. The Presiding Officers and/or Members while passing the order shall properly record presence of the parties and/or their counsels, the purpose for which the matter is being adjourned and the party on whose behalf the adjournment has been sought and granted. It is therefore directed that necessary observance of the aforementioned directions should be strictly followed. Any deviation in this regard shall be viewed seriously.

In Child in Conflict with Law through his mother Vs. The State of Karnataka and Another, the Supreme Court' s bench of Justices C.T. Ravikumar and Rajesh Bindal endorsed the view of Karnataka High Court which noted that "while signing the order sheet and also orders, the names of the Judicial Member as well as Non-judicial Members are not noted below their signatures. This is coming in the way of anyone knowing the names of the members who were present and who were absent. Therefore, only on the basis of signatures, this Court was able to distinguish as to who was the Non-Judicial Member present on 05.04.2022 and who was the third member who joined in expressing dissenting opinion on 12.04.2022. This Court is of the considered opinion that it would be appropriate to mention the names of the members below their signatures, which would also help the transparency in conduct of the said proceedings and put the members on guard about their roles played in the said proceedings.”

Supreme Court observed: "The High Court has noticed an important issue which arises in judicial and quasi-judicial proceedings throughout the country. The Presiding Officers or Members of the Board, as the case in hand, or Tribunals do not mention their names when the order is passed. As a result of which it becomes difficult to find out later on, as to who was presiding the Court or Board or Tribunal or was the member at the relevant point of time. There may be many officers with the same name. Insofar as the judicial officers are concerned, unique I.D. numbers have been issued to them."

Its judgement reads : "We expect that wherever lacking, in all orders passed by the Courts, Tribunals, Boards and the quasi-judicial authorities, the names of the Presiding Officers or the Members be specifically mentioned in the orders when signed, including the interim orders. If there is any identification number given to the officers, the same can also be added." The 77 page long judgement was authored by Justice Bindal. 

He noted:"In many of the orders the presence of the parties and/or their counsels is not properly recorded. Further, it is not evident as to on whose behalf adjournment has been sought and granted. It is very relevant fact to be considered at different stages of the case and also to find out as to who was the party delaying the matter. At the time of grant of adjournment, it should specifically be mentioned as to the purpose therefor. This may be helpful in imposition of costs also, finally once we shift to the real terms costs."

The Registrar General''s circular has also drawn attention towards Patna High Court's letters No. 12449-12486, dated 22.02.20 24 and 36819-36855, dated 07.05.2024 for reference. 

Supreme Court's directions were passed while adjudicating in a matter under Juvenile Justice (Care and Protection of Children) Act, 2015.

GM crops, food safety case referred to Supreme Court's larger bench, Union govt forms secret committee on Biosafety

In the aftermath of the Supreme Court's 409 page long judgement of July 23, 2024, Mint reported on September 24, 2024 that the Union government has begun the process of drafting its policy on genetically modified (GM) crops. The agriculture ministry in consultation with the ministries of environment, forest and climate change, health and family welfare, and the department of biotechnology has set up a panel of agriculture scientists that will also evaluate the GM crop research done in other countries and submit its report in the next couple of months. The members of the committee are scientists with expertise in rice, cotton, and plant protection. The names of the committee members have not been disclosed. 

In her 260 page long judgement in Gene Campaign vs. Union of India, as part of a Division Bench of the Supreme Court, Justice B.V. Nagarathna recorded that States like Bihar, Kerala, Madhya Pradesh, Haryana, Tamil Nadu, Delhi, Andhra Pradesh, Rajasthan, Odisha, West Bengal and Karnataka have expressed reservations against field testing and release of transgenic mustard hybrid Dhara Mustard Hybrid (DMH)-11. She underlined that "the States cannot be treated as satellites of the Union of India as they have constitutional identity and powers and responsibilities conferred under the Constitution of India and therefore, their views in the matter are of significance". 

In her judgement, she drew on Articles 14 and 21 of the Fundamental Rights, Article 48A of the Directive Principles of State Policy of the Constitution of India and several case laws to give certain general directions in relation to GM crops. These are as under:

(i) The Union of India is directed to evolve a National Policy with regard to GM crops in the realm of research, cultivation, trade and commerce in the country. The said National Policy shall be formulated in consultation with all stakeholders, such as, experts in the field of agriculture, biotechnology, State Governments, representatives of the farmers, etc. The National Policy to be formulated shall be given due publicity.

(ii) For the aforesaid purpose, the MoEF&CC shall conduct a national consultation, preferably within the next four months, with the aim of formulating the National Policy on GM crops. The State Governments shall be involved in evolving the National Policy on GM crops.

(iii) That the composition of Genetic Engineering Appraisal Committee (GEAC) shall be suitably reformed bearing in mind the recommendations of the Supreme Court's Technical Expert Committee (TEC) and the Parliamentary Standing Committee (PSC) Reports and the dictum of the Supreme Court in the case of T.N. Godavarman Thirumulpad vs. Union of India. The reformed composition shall comprise of experts in the field of agriculture, biotechnology, ethics, sociology, health as well as experts in the field of environment and shall be an independent and autonomous body. This could be done either by a statute or amendments being brought to the existing Rules as thought fit by the Union of India.

(iv) The Union of India must ensure that all credentials and past records of any expert who participates in the decision-making process should be scrupulously verified and conflict of interest, if any, should be declared and suitably mitigated by ensuring representation to wide Rules in this regard may be formulated having statutory force.

(v) The specific guidance documents have been adopted in conformity with the Cartagena Protocol on Biosafety (CPB) shall be complied with in letter and spirit insofar as they are applicable to the Indian context. These guidance documents shall be accorded statutory status by framing and issuing appropriate Rules under Section 25 of the Environment Protection Act (EPA), 1986.

(vi) In the matter of importing of GM food and more particularly GM edible oil, the respondent shall comply with the requirements of Section 23 of Food Safety and Standards Act (FSSA), 2006, which deals with packaging and labelling of foods.

Her order reads:"I hold that the approval dated 18.10.2022 and consequent decision dated 25.10.2022 for environmental release of transgenic mustard hybrid DMH-11 violate the precautionary principle inasmuch as there has been no determination made, as to, whether, transgenic mustard hybrid DMH-11 is a HT crop and if so, the nature of risk that would be caused by the said plant to the environment including other plants as well as to human beings and animals." She observed that deliberations of the GEAC have not focussed on the aspects of biosafety, risk assessment, soil health, micro-biology and socio-economic aspects etc. It did not consider the recommendations of the TEC and Parliamentary Standing Committees’ Reports on Agriculture and on Science and Technology, Environment and Forest. She also observed that the recommendation of the Expert Committee constituted by the GEAC in the year 2022 is of no consequence and not binding.

She concluded:"the recommendations of GEAC dated 18.10.2022 as well as the decision taken by the respondent Union of India on 25.10.2022 with regard to approving environmental release of transgenic mustard hybrid DMH-11 on the application made by the applicant, namely, CGMCP, University of Delhi (South Campus’) are vitiated and hence, they are liable to be quashed and are quashed." 

The writ petitions on the subject have been pending since 2004 and 2005. The instant reason for considering these writ petitions was the approval of Genetic Engineering Approval (now Appraisal) Committee (GEAC) dated 18.10.2022 culminating in the decision dated 25.10.2022 which was found questionable by the petitioners. 

Some safety concerns linked with Genetically Engineered (GE) technology was brought to the notice of the Court. Transgenic contamination is unavoidable and there can be no co-existence between GM and Non-GM agriculture. The research shows that Bt proteins, incorporated into 25% of all transgenic crops worldwide, to be harmful to a range of non-target insects, worms and amphibians. Some of them are potent immunogens and allergens. In fact, glyphosate and the Roundup herbicide used on most herbicide resistant crops is shown by studies to be lethal to amphibians. The GM crops have led to an increase in pesticide use, financially hurting farmers and harming the environment. The GE technology is a fit case for the application of the precautionary principle which necessitates that if there are reasonable scientific grounds for believing that a new process or product may not be safe, it should not be introduced until convincing evidence of reasonable certainty of no harm is obtained. In addition, if the dangers are considered serious enough, then the principle may require withdrawal of GM products or impose a ban or a moratorium on further use thereof. The safety testing for GE food is absolutely necessary for India before the release of any GMO into the Indian environment. However, there are very few established protocols for assessing the potential health impacts of GE crops. All one finds is loose guidelines that in most cases only list certain tests or procedures without specifying how they are to be conducted. The biotechnology companies frequently deny access or allow strictly conditioned access, to data on crop materials on the basis of confidentiality and IP concerns, making it very difficult for regulatory authorities and independent researchers to verify or review test claims on the safety of GE crops and foods. The extant regulatory system in India is ill-equipped to handle challenges outlined above, as past experience also confirms. 

It was pointed out that the Review Committee on Genetic Manipulation (RCGM), under the Department of Biotechnology (DBT) did not have the jurisdiction to grant permission for the release of GMOs into the environment. It was originally the RCGM which illegally permitted the release of the GMOs into the country for the first time. Owing to public outcry over the serious illegality of these clearances, attempts were made to get the release of GMOs cleared retrospectively. 

It was arbitrary and unreasonable do away with a mandatory public notice and public hearing before approvals for the release of GMOs are granted.

Alliance for Sustainable and Holistic Agriculture (ASHA), one of the petitioners submitted to the Court that in September 2015, the Centre for Genetic Manipulation of Crop Plants (CGMCP) had submitted an application to GEAC, seeking approval for the environmental release of GE mustard hybrid (DMH-11) seeds and the use of parental events, i.e., Varuna bn 3.6 and EH-2 modbs 2.99, for development of new generation hybrids.

The petitioners submitted that as per current practice, the applicant company itself asks to do testing. The test results are not available for public scrutiny. This is entirely without logic and is a clear conflict of interest involving the same biotech company that has a commercial interest in the approval of the GMO. In India, organizations which are substantially funded by the biotech industry have sought to influence regulatory and other decision-making processes by conducting "awareness" and "educational" programmes. 

Notably Cartagena Protocol on Biosafety to the Convention on Biological Diversity, a binding international agreement on Biosafety was adopted in 2002 and came into force on 11.09.2003. India being a signatory, is bound to implement its provisions. According to Article 10(6) of the Protocol, the lack of scientific certainty due to relevant scientific information and knowledge regarding the extent of potential adverse effects shall not prevent the contracting party from taking a decision, as appropriate, in order to avoid and/or minimize potential adverse effects. Annexure-III of the protocol includes, the general principles of risk assessment. It states that risk assessment should be carried out in a scientifically sound and transparent manner and implores states to take into account expert advice as well as guidelines developed by relevant international organizations. Article 21(6) of the Protocol prescribes that the information about the risk assessment cannot be kept confidential.

India is a party to UN's Convention on Biological Diversity (CBD), 1992, which requires that the contracting parties shall domestically regulate or manage the risks associated with the use and release of Living Modified Organisms (LMOs) resulting from Biotechnology and which are likely to have adverse environmental impacts and risks to human health. It also implores states to introduce appropriate procedures to require impact assessment of proposed projects likely to have significant adverse effects on biodiversity and to allow public participation in the procedure.

 

Justice Sanjay Karol disagreed with the findings, conclusions and certain directions given by Justice  Nagarathna. He authored a 146 page long dissenting judgement.

 

But there is consensus on the Division Bench on some aspects. Their 3 page long joint order dated July 23, 2024 on these aspects reads:

"1. That Judicial Review of the decision taken by the bodies concerned in the matter of GMOs is permissible.

2. We issue the following directions:
i. The respondent-Union of India is directed to evolve a National Policy with regard to GM crops in the realm of research, cultivation, trade and commerce in the country. The said National Policy shall be formulated in consultation with all stakeholders, such as, experts in the field of agriculture, biotechnology, State Governments, representatives of the farmers, etc. The National Policy to be formulated shall be given due publicity.
ii. For the aforesaid purpose, the MoEF&CC shall conduct a national consultation, preferably within the next four months, with the aim of formulating the National Policy on GM crops. The State Governments shall be involved in evolving the National Policy on GM crops.
iii. Respondent – Union of India must ensure that all credentials and past records of any expert who participates in the decision-making process should be scrupulously verified and conflict of interest, if any, should be declared and suitably mitigated by ensuring representation to wide range of interests. Rules in this regard may be formulated having a statutory force.

iv. In the matter of importing of GM food and more particularly GM edible oil, the respondent shall comply with the requirements of Section 23 of FSSA, 2006, which deals with packaging and labelling of foods.
3. Having regard to the difference of opinion expressed by us on the decision of the GEAC and MoEF granting conditional approval for environmental release of DMH-11, the Registry shall place the matter before Hon’ble the Chief Justice of India for constituting an appropriate Bench to consider the said aspect afresh."

 

At present, Bt. cotton is the only Genetically Modified (GM) crop approved by the GEAC of Ministry of Environment, Forest and Climate Change in 2002 for commercial cultivation in the country, according to the written reply of Ramnath Thakur, Union Minister of State for Agriculture & Farmers’ Welfare in the Lok Sabha on August 6, 2024. Notably, Supreme Court's July 2024 verdict refers to Bt. cotton on 58 occasions. It records that circumstances surrounding the initial approval of Bt cotton in India were questionable. The RCGM did not have the jurisdiction to grant permission for the release of GMOs into the environment but it illegally permitted the release of the GMOs into the country for the first time. Notably, the Bt Cotton were cleared retrospectively.The verdict also refers to the testimony of Dr. P.M. Bhargava, founder Director of Centre for Cellular & Molecular Biology (CCMB), Hyderabad and the then Supreme Court nominee on GEAC. 

 

Dr. Bhargava  submitted that i) All the tests on Bt cotton have either been conducted by the concerned applicant for approval, or by an accredited laboratory on the samples given by the applicant. The Bt cotton was tested and approved surreptitiously without  adequate information being available to the public. ii). The Bt brinjal was approved on the basis of an expert committee report, which lacked in scientific quality, credibility, consistency and rigour. Relying upon a private conversation with the then Co-Chairman of GEAC, Prof. Arjula  Reddy, Dr. Bhargava claimed that the former was under pressure to approve Bt brinjal and to give a go by to the chronic toxicity and other tests which had been proposed by the latter. He also claimed that the Co-Chairman confided in him that even the tests undertaken were performed badly. iii). That no chronic toxic studies have been conducted on GM crops. iv) Despite a specific proposal for establishing a lab to conduct indigenous and independent assessment studies, the erstwhile Director  General of ICAR, Dr. R.S. Paroda, the erstwhile  Director General of Council of Scientific and  Industrial Research (CSIR), Dr. R.A. Mashelkar and GEAC were reluctant to support the same.

 

It also records that "The cultivation of Bt cotton has led to the development of resistance to the Bt toxin,  giving rise to robust secondary pests. This, in turn, has resulted in an increased application of pesticides, contradicting the initial purpose of Bt cotton."  Therefore, it is doubtful that control over herbicide use and the penalization of farmers employing  herbicides will be effective in the case of DMH-11. The potential adverse impacts of using Herbicide Tolerant (HT) crops include destruction of all the vegetation in and around the fields where the HT crop is cultivated, which is used by the rural community in significant ways. In India, the biodiversity found in and around fields is not considered “weeds” and therefore, not useless, as they are in the west. These plants, so called “weeds”, provide:i. leafy green vegetables and many kinds of saag like chaulai and bathua that provide valuable nutrition for free to poor rural families; they also provide green fodder for rural livestock; such “weeds” are also medicinal plants that traditional healers such as vaids and hakeems use in the treatment of human and animal diseases. The introduction of the HT trait will destroy the opportunity to do mixed farming which is prevalent in Indian agriculture. d. The HT trait will also strike against any efforts to promote organic agriculture, since it involves heavy chemical use of herbicides. The use of herbicides and their accumulation in the soil will damage soil health and the chemicals will enter the food chain to the detriment of human health.

 

The regulatory framework for approval of Genetically Modified (GM) crops has been established as per “Rules for the Manufacture/Use/Import/Export and Storage of Hazardous Microorganisms, Genetically Engineered Organisms or Cells, 1989” under the Environment (Protection) Act, 1986. A series of guidelines and protocols have been issued by Department of Biotechnology and Ministry of Environment, Forests and Climate Change relating to Genetically Modified Organisms and product thereof as under:
    1) Recombinant DNA Safety Guidelines, 1990
    2) Revised Guidelines for Research in Transgenic Plants, 1998
    3) Guidelines for the Safety Assessment of Foods Derived from Genetically Engineered Plants, 2008
   4) Guidelines for the monitoring of Confined Field Trials of Regulated, Genetically Engineered (GE) Plants, 2008
  5) Standard Operating Procedures (SOPs) for Confined Field Trials of Regulated, Genetically Engineered (GE) Plants, 2008
    6) Protocol for Food and Feed Safety Assessment of GE crops, 2008
    7) Guidelines and Handbook for Institutional Bio-safety Committees (IBSCs), 2011
    8)  Environmental Risk Assessment of Genetically Engineered Plants: A Guide for Stakeholders, 2016
    9) Guidelines for the Environmental Risk Assessment of Genetically Engineered Plants, 2016.
    10) Risk Analysis Framework, 2016.
 

GM has never been tested as an HT crop, despite having HT properties. In such a backdrop, the judgement by the larger bench assumes huge significance for food safety and ecosystem in the country. 

Many of us are where we are not by choice, but by circumstance, our Constitution assures us that each one of us matters: Dr. S Muralidhar

 Address by Dr. S Muralidhar at the 9^th Convocation at the BML Munjal University

Let me begin with a parable and go on to an anecdote.

Many of us have heard of the tales of Mulla Naziruddin. One such runs like this. Mulla was walking down the street and came across a bunch of six urchins quarrelling over something. Mulla stopped to enquire. One of the older boys of the group stepped forward to say that they having a tough time trying to share a loaf of bread. Will you help us, they asked Mulla. Stroking his beard, Mulla said, agreed, but first you will have to answer one question. The boys asked what. Mulla said do you want me to distribute this loaf of bread as God would have distributed it or would you have me distribute it as man would? The boys in unison said ‘as God would have distributed it’. Well, said Mulla, lifting one eyebrow, as you wish. He then proceeded to give one small chunk to one, nearly half the loaf of bread to another, two uneven portions to another two. He told the last two: sorry, nothing for you. Even while the one who got the largest piece was puzzled, the rest began badgering Mulla saying what is this? This is so unfair. Mulla said Well, I asked you how you would wish the bread to be divided. I did exactly what you wished. God doesn’t give all of us the same or equal things. Many of us have nothing. That is the eternal truth of life and you have to learn to live with it. Mulla walked on. Those urchins did learn more of life that day.

Several years ago, in the National Judicial Academy the resource team of which I was part, performed an experiment with district judges who were attending a course in constitutional law. We placed a bowl of chickpeas, channa. A fairly large bowl. Every participant had to dip both hands into the bowl and clutch at as much channa as they could. Then, with hands folded behind their backs, one participant would randomly seek out a second participant who also had his hands full of channa folded behind. The second participant had to guess which hand of the first participant held more channa. If the guess was right, the first participant would have to handover all the channa in that hand to the second participant. If wrong, the second participant had to do likewise. The game would go on for another five minutes at the end of which each of the participants was asked to count how much channa was left in their hands. Depending on the number of channa with each of them, they would be categorised into different groups. Those having 20 and above in the first, 10-20 in the second, 5-10 in the third, 1-5 in the fourth and those with nothing left in the last. Each group had to sit around earmarked tables.

We then announced that this was an experiment at determining economic disadvantage:  The above 20 group were to be called the elites, 10-20 were the upper middle class, 5-10 the lower middle class, 1-5 were the vulnerable and those having none were the BPL (below poverty line).  The participants knew it was only an experiment, and yet, the body language of those in the ‘elite’ group became confident and assured, that of the upper middle class somewhat relaxed, the other groups had a ‘why me’ look. One in the BPL was in fact tearful and protested that the rules of the game, which were purely based on chance and not skill, were unfair and unjust.

It brought home the point that humans are intrinsically by birth, status and opportunity, in different states of inequality. It became apparent as we discussed further that when we add further layers of caste, disability, gender, sexual orientation and age, to each of the above ‘class’ categories, the issue becomes more complicated. For instance, a member of the BPL group who happens to be a widow, a dalit and hearing impaired, could suffer an accentuated disadvantage. A middle-class farmer could, on account of acquisition of her land for a power project, face displacement and loss of livelihood and be pushed in to a lower economic class. The next stage of the experiment was to ask each group, with this awareness, to talk about the privileges that they enjoy, and the challenges facing them and how they planned to overcome the challenges.

The members of the group thus experienced, although vicariously, what it was to be placed at a disadvantage; for e.g., what it was to be been born as a street-child, as a child of a sex worker, in a dalit household, in family of ragpickers or sewer cleaners, as a visually challenged person and so on. It was a lesson in understanding why the Constitution matters and making manifest a simple truth: That many of us are where we are not by choice, but by circumstance, and that our Constitution assures us that each one of us matters.

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For some of you in the audience who may wonder what this is all about, I may remind you that these explain the values of justice, equality and liberty which form the soul of our Constitution and are, therefore, stated upfront in its Preamble. It states that we the people of India gave to ourselves on 26^th November 1949, justice, social, economic, and political, in that order. We gave to ourselves liberty of thought, expression, belief, faith, and worship. Again, in that order. Thirdly, and most importantly, we gave to ourselves equality of status and of opportunity. All of this was to achieve the attainment of one goal spelt out in the Preamble. It was the expectation of our Constitution makers that if we did give to each one of us, justice, liberty, and equality in the above terms it would help promote among all of us fraternity assuring the dignity of the individual and the unity and integrity of the nation.

While tabling the final draft before the Constituent Assembly, Dr Ambedkar reminded us that there were two glaring absences in Indian society of those times. The first was equality in the true sense of equals not being treated unequally and unequals not being treated equally. He said: “On the social plane, we have in India a society based on the principle of graded inequality by which we have a society in which there are some who have immense wealth as against many who live in abject poverty.” The second value that was absent was fraternity. He saw it as the principle which gives unity and solidarity to social life.

For him, social democracy was far too important, and if that was not achieved, there would be little purpose in economic or political democracy. He presciently noted that “democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.” In an essentially feudal and patriarchal society, it had to be cultivated and nurtured by the people if the promises in the Constitution were to be fulfilled.

******* 

So, the task before each of us, in this 75^th year of the Indian Constitution, is this. How do we cultivate and nurture the constitutional values of justice, liberty, equality and fraternity, not just in our institutions and our workplaces but most importantly in our personal sphere? As Eleanor Roosevelt reminded us more than seven decades ago, “human rights begin in small places, close to home - so close and so small that they cannot be seen on any maps of the world. They are the world of the individual person; the neighbourhood she lives in; the school or college she attends; the factory, farm, or office where she works. Such are the places where every man, woman, and child seek equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.”

University life teaches you so many things, about yourself and about others. It introduces you to new experiences that challenge you, make you question your beliefs and shakes you up with every new disappointment. For some of you graduating today it was perhaps a time of new friendships (also some enemies?), losing friends, getting bullied by a senior (or a bunch of them?), discovering a first love (or was it a crush?), the first heartbreak, the pangs of envy and jealousy, of self-doubt, a first smoke (or was it weed?), the first drink, the first taste of the freedom to break not just taboos but the code of discipline or even the law and the thrill of not getting caught at it. Some of you may have found a hidden talent – as a speaker, as an actor, as a performing artist, a sportsman, as a nerd, as a teacher, as a good buddy.

You may have revelled in breaking norms, yet you develop a sense of justice. In other words, you are quick to sense the injustice done to you. For instance, with the same grades as you, your classmate gets a job offer and you do not. You say it is unfair. You are in the girl’s hostel which has certain additional restrictions like curfew hours that the boy’s hostel does not. You protest. Why? Because you experience unfairness. At the immigration counter in an international airport, those having European or American passports are diverted to a separate queue and South Asians to a different one where the clearance time is much longer. You sense discrimination. You also sense the injustice done to others, for no fault of theirs. When at the traffic intersection, on a cold winter’s night, a young child with a bare body comes to you begging for alms, you feel bad and mostly, helpless. And you do see the justice in providing for separate seats for women in public transport, for those who are differently abled, for the elderly. You recognise that not everyone is in a comparably similar situation and that by treating unequals equally and vice versa, we would be doing injustice.

And yet, when those of us who despite doing well in our school education are denied admission into universities or into courses of our choice because of seats being reserved for the lesser privileged castes and classes, we resent it deeply. At a personal level, when I was graduating in my BSc course 43 years ago, I too felt the same way. I felt merit was being punished and that it was unfair. It was because I enrolled into the law course that I became aware that as a school student in a metropolitan city, born in an upper caste family, I had none of the disadvantages of a student belonging to a scheduled tribe in a school in the hills, having to walk everyday at least three hours to reach the school and return home. My middle-class economic status may have helped me take special tuitions but many in an economically weaker position could not even afford the regular tuition fees in their schools. Some of them have had to grow in families that have suffered the practice of untouchability, who have, through generations, been denied access to basic facilities like drinking water from wells, bathing places and even places of worship. I realised by imagining that I was placed no different from that student, and that we both ought not to be treated differently, I was making a huge mistake – it was like chalk and cheese. However, it is unfortunate that with every new generation of students, the numbers of those resenting reservations have only grown. Hopefully, a greater exposure to social and economic realities, more co-mingling with persons of different backgrounds, in a congenial environment that encourages debate and dissent without resort to violence, might help the privileged student overcome the resentment.

If the last few years in this educational institution has not dulled that sense of inequality, of discrimination, of injustice and has helped you appreciate why as a society we need to be inclusive and caring, then this has indeed been a worthwhile time. If you have been a keen observer of your surroundings, you might have sensed what Dr Ambedkar termed as ‘graded inequality’. The matrimonial columns in our newspapers are perhaps the starkest example of how fractured our individual identity has become. People seek grooms and brides only from their own religion, castes and sub-castes. The categories of “grooms and brides wanted for’ highlighted in last week’s issue of a leading English national daily circulating in Delhi read: Agarwal, Jat, Brahmin, Tyagi, Bhumihar, Saini, Yadav, Kshatriya, Kayasth. Within SC/ST I noticed Ad-Dharmi, Jatav and Julaha, within Agarwal there was Bisa Agarwal, Bindal, Gupta, Goel, Jindal, Singla, and within Sikh there was Khatri and Ramgarhia. These are just illustrative. The divisions across India along religions - and along castes – and along castes within religions - is alarmingly mind-boggling. The question we need to ask ourselves is whether we subscribe to this as being part of our culture or tradition, or are we prepared to stop discriminating and judging the true worth of others along these lines? Has our education in these past few years helped us do that?

You witness the discomfort of some of your classmates in not feeling confident to speak in class or even in private, let alone speak in English or in your language; you sense their body language displaying diffidence, their awkwardness in being made aware of the clothes they wear, of the food they eat, of the region they come from, the language they speak and so on. Have you reached out to that person to make her or him feel comfortable? If each one of us were to ask, how many in our close circle of friends are persons not belonging to our class, caste, gender, sexual orientation, geographical region, religion, language, it would give us some indication of how truly inclusive we are.

At another level, if we ask ourselves how much do we know of the lives of those who work for us, that would tell us how caring we are. How many of us have spoken to or even smiled at the person cleaning our toilets either in our hostels or our homes? Those who sell the fruits and vegetables that you buy, those Zomato or Swiggy gig workers that toil day and night to deliver things at your doorstep. Do you know where they live? Have you shared a meal with them? Have you interacted with sewer cleaners, rag pickers and those who work in the mortuaries? With young labourers in restaurants and mechanic shops? Have you tried performing the task that they undertake? If your university stint has made you pause and take notice, has planted the seeds of caring and mindfulness, then the stint has indeed been worthwhile.

When you meet a person with a beard and a skull cap, or a girl who smokes or drinks publicly, or an obese person in the seat next to you in an aircraft, or a person with autism in a public place, do you start making assumptions unconsciously, almost as a reflex? If these years in this institution have helped you interrogate your prejudices, and attempt to overcome them, then the time spent here has been worthwhile.

Within our homes, how many of us understand what it is for a woman to be deprived of choices that are offered to men, whether in terms of future prospects of education and employment, and most importantly of marriage? How many women have the freedom to choose their own partners? How many of us would understand, one among us being differently sexually oriented? What if it is your own sibling or maybe your own parent? How many males among us understand what it is to be subjected to a male gaze, to mansplaining, to a lewd remark, to voyeurism and to stalking? The ability to understand the world through different viewpoints and from different perspectives, is the true test of maturity. If this education has helped show the way towards that maturity, then it will remain relevant for character-building.

Today’s convocation has revealed to us who among us has excelled in studies. Some of us could consider ourselves as winners and some as losers. Our educational system tends to divide students of a course into successes and failures, and that too on a relatively narrow range of life skills. Because so much of how much we succeed now, determines our entry into better courses, better degrees, jobs and professions, our educational system quite unsurprisingly makes us extremely competitive. Those who by their very nature do not subscribe to competitiveness or to being aggressive pursuit of the goalposts of ‘class topper’ and ‘university topper’ feel left behind. The hubris that could attach to those who are on the top of this game can be counter-productive to society in general in the longer run.

Michael Sandel, a Professor of Philosophy who teaches in Harvard University, brought out four years ago a book titled: The Tyranny of Merit, in which he argues that a relentless success ethic has permeated “the culture that those at the top deserved their place but so too did those who were left behind. They hadn’t striven as effectively. They hadn’t got a university degree and so on.” He points out how those in the top of the class at Harvard genuinely believed that they had reached that position by sheer dint of personal effort thereby attributing very little to the privileged backgrounds they came from, and which had provided them the ideal platform in which to excel. Those who have succeeded today because of your superior performance academically must understand that this is not only through your individual effort but in myriad ways on account of the support of your families, friends and society in general, and several generations of people that have made this moment possible. Likewise, those who did not perform as well as you expected should rest assured that you have learnt more than those who did, and that failure and success are but relative terms.

It is a sobering thought that many of us despite our academic brilliance may not possess basic life skills. Some of us may excel in other fields that unfortunately are not valued adequately in our kind of educational system. We tell our children, who may be highly skilled artists, that they nevertheless have to have a ‘regular’ job if they have to survive. The Covid-19 pandemic made us appreciate the value of the supposedly unskilled, low-paid work: that of the cleaner, the sweeper, the worker in mortuaries, cemeteries and cremation grounds. It should have taught us to value the dignity of work. Yet, we tend to attach disproportionately high value to certain skills (like for e.g., that of a surgeon or a scientist) and to devalue some other skills that are equally demanding if not more arduous: artisans, weavers, farmers, sanitation workers and home makers. That must change and you must help, in your own little way, to make that change happen.

This is the time to take stock of what we have learnt and what we have yet to learn. Our foremost statesman-teacher, Dr Radhakrishnan warned us: "When we think we know we cease to learn.” And when we cease to ask why and how, we fail to develop our innate sense of healthy curiosity that has produced many a thinker and philosopher in the country. There is much value in being what Professor Amartya Sen terms as an ‘argumentative Indian’. At the same time there is a concern that the present generation of students may be driven to becoming what Prof Sumana Roy terms as ‘agreementative’ Indians. The questioning mind that challenges, critiques and remains hungry for knowledge is our best hope for the future. The education system certainly prepares you to understand the value of learning, but the university is not the only place where you learn. For those willing to keep their mind open to it, life will continue to teach you about yourself and about those in whose midst you exist. While some mistakes are irreversible, many are those that let you pick yourself up and move forward with the determination not to repeat them. Every failure is a learning and every success a warning.

I wish to end by two quotes. The first is from Gurudev Rabindranath Tagore who says: “We have come to this world to accept it, not merely to know it. We may become powerful by knowledge, but we attain fullness by sympathy. The highest education is that which does not merely give us information but makes our life in harmony with all existence.” And the next by Helen Keller, who as many of you know, overcame her visual and hearing impairment to become a renowned political activist, lecturer and author. Her inspiring words were: “Life is an exciting business, and most exciting when it is lived for others.”

Our journey in life should help us discover the many other strengths that we may have and enable those strengths flourish even while we make it possible for others to realise those other strengths in themselves. Only then can we progress to a better society, to a more kind and equal world. We must strive to mitigate the harshness of the unequal world that Mulla Naziruddin reminded those young urchins about.

I hope each one of you have done what some of us did when we graduated. We thanked not just our teachers, families and friends, but thanked with a smile the persons serving in the campus – in the canteens, in the kitchens, hostels, the sweepers, cleaners and malis, the drivers, the staff, the peons and the guards who let in you in even after official hours and the shop across the road from where you surreptitiously got your cigarettes and even booze. They’ve all helped chisel you into the person you are now. Your gesture of acknowledgment means a lot to them. And as for this evening, after this boring speech, enjoy yourselves, go have a blast. You have earned it.

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 The lecture was delivered on September 14, 2024.

 Dr. S Muralidhar  is a Senior Advocate and former Chief Justice of Orissa High Court.