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Pakistan pushes PoJK to the verge of a major crisis

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Pakistan-occupied Jammu and Kashmir (PoJK) has been grappling with a flurry of protests recently due to the Pakistan government’s plan to amend the region’s constitution to take away financial and administrative powers of the local government. This has resulted in a massive uprising in all the 10 districts of PoJK. Reports said that on July 1, a joint secretary in the Ministry of Kashmir Affairs in Islamabad sent a letter to the chief secretary of PoJK, informing that the Prime Minister of Pakistan Shahbaz Sharif has constituted a six-member committee to seek amendments in the interim constitution of PoJK. The letter has asked the PoJK government to nominate its three members to participate in the deliberations.
Pakistan government’s six-member committee that included ministers of law, defence and Kashmir Affairs will give a final shape to a draft which will be known as the 15th amendment to the Azad Jammu and Kashmir Interim Constitution. It is believed that Prime Minister of PoJK Sardar Tanveer Ilyas has nominated an additional chief secretary, secretary of law and secretary of agriculture to attend the deliberations with the leaders in Islamabad.
Protesters say that the PoJK government should have nominated political leaders cutting across the aisle as this amendment relates to curbing political powers of the local government and has wider ramifications.
The protesters say the decision to nominate bureaucrats to deliberate with the ministers of the Pakistan government is tantamount to surrendering before Islamabad. Publicly Ilyas and even opposition members have so far held the view that they will not allow implementation or legislation of this 15th amendment. Interestingly, the opposition parties in PoJK which are Pakistan Muslim League and the People’s Party are alliance partners in the government under Prime Minister Shabaz Sharif. Pakistan Tehreek e Insaf (PTI) of Imran Khan is the ruling party in PoJK.
A few years ago, under the 13th amendment, the PoJK government had secured rights to legislate on finance and administrative issues, which seems not going well with the political and bureautic class in Pakistan.
Former Prime Minister of PoJK Raja Farooq Haider, whose party PML is in power in Islamabad has stated that he will not allow this amendment to take place. This amendment involves scrapping the 13th amendment and restoration of the Kashmir Council to become a superimposing body above the PoJK government and the legislative assembly. 13th amendment had curtailed the powers of the Pakistan government and its officials on the affairs of PoJK. Pakistan had never allowed a proper set-up in the PoJK and as per the constitution it is deemed to be an interim arrangement, till the the status of the POJK is determined.Under the garb of this interim set-up and dreams of one Jammu & Kashmir State as a whole are trampled , Pakistani authorities have used every tactic to deny political rights to the people of PoJK.

Revival of unelected Kashmir Council
According to the details being drafted in the name of the 15th amendment, the powers of the unelected Kashmir Council will revive and it will play a crucial role in administrative and financial legislation. In the earlier structure, the Pakistan government used to get some Rs. 500 to 600 crore every year as taxes from PoJK. But after the 13th amendment, the money was disbursed to the PoJK government. Therefore, the Pakistan government wants to annul the 13th amendment by bringing the 15th amendment.
The Ministry of Kashmir Affairs and the Chairman of Pakistan parliament’s Kashmir Committee are seen as gravy trains by Pakistani politicians. Such is the rush to head the Kashmir Affairs Ministry in Islamabad that Mian Manzoor Ahmed Khan Watoo, who has been chief minister of Punjab and then industry minister had preferred to occupy the post of this ministry rather than seeking any other prominent role. Similarly, Maulana Fazlu Rahman always preferred to chair the parliamentary committee on Kashmir to get funds for his political and personal activities.
In the legislative scheme, there are 28 subjects, that the PoJK assembly cannot legislate which include defence, foreign affairs etc. In another set of subjects that include water sharing and electricity, the PoJK assembly is authorized to legislate, but with the consultations of the Pakistan government. Now the 15th amendment stipulates that both the subjects will be in the domain of the unelected Kashmir Council instead of the legislative assembly. If there is a need to impose an emergency in the region, it will not be done with the stamp of the PoJK president, but by the seal and signature of the Prime Minister of Pakistan after getting recommendations from the Council. Pakistan government is also authorised to appoint high court and supreme court judges, chief election commission, auditor general, chief secretary, police chief etc. The Pakistan government will also control the finances of PoJK.
Before the 13th Amendment, the council was very powerful. Headed by the prime minister of Pakistan as chairperson, the council was created under POJK’s Interim Constitution Act, 1974, “to serve as a bridge” between the governments in Islamabad and Muzaffarabad. However, it was widely alleged that this institution had assumed the role of a parallel government [for POJK]. The 13th amendment had taken away its powers. In the earlier version before the 13th amendment, there was no provision for it having its secretariat. Now the 15th amendment also calls for a separate secretariat for the Council. That means there will be a government over the government.
Under the interim constitution of PoJK, the Kashmir Council was an executive authority. Kashmir Council had responsibility for the tax collected from all over the state. All the income tax commissioners of the state were subordinate to the council. and all the revenue went directly to the council of which 80% is held by the PoJK government and 20% by the Kashmir council.
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Historic 13th Amendment
After the historic 13th Amendment to the Azad Jammu and Kashmir Interim Constitution Act 1974 in the PoJK Legislative Assembly, all powers of the Kashmir Council were transferred to the PoJK Government, the Legislative Assembly, and the Prime Minister of Pakistan.
It was passed by a majority vote in the joint sitting of the Azad Jammu and Kashmir Legislative Assembly and the Kashmir Council. In the joint sitting, 49 members of the Legislative Assembly, six members of the Kashmir Council, and the Federal Minister for Kashmir Affairs cast one vote. On June 1, 2018, the PML-N government passed this historic legislation with a majority of 35 out of 56 members.
Many changes have been made through this historic legislation. Article 6 used to convene a joint sitting in case of a no-confidence motion against the President, but now a one-third majority of the Legislative Assembly, i.e. 17 members of the Assembly, can move a no-confidence motion. Under Article 14 (1), the number of Ministers in the Legislative Assembly is fixed at 30% of the total members of the Assembly. The next government will not be able to have more than 16 ministers in the cabinet under this law. Under Article 14-A, the Prime Minister of PoJK will now be able to appoint five Parliamentary Secretaries and two Special Assistants or Advisers.
According to Article 17 (3), in the absence of the Prime Minister of PoJK, the senior minister would have been the caretaker Prime Minister. The no-confidence motion against the Prime Minister of PoJK will be able to form 25% of the total members i.e. 13 members of the Assembly. Earlier, a member of the Assembly could have moved the motion.
In Article 50, the Election Commissioner will be replaced by the Election Commission which will consist of a total of three members including one Election Commissioner and two more members. The Prime Minister, after consulting the Leader of the Opposition in PoJK, will send his name to the President, who will give his formal approval.
The significance of the PoJK Council after the thirteen Amendments is toothless, but according to United Nations (UN) resolution, Kashmir Council cannot be abolished in Pakistan and Indian Kashmir.
That the Muzaffarabad government has always taken diktats from Rawalpindi is an open secret. Tourism is the major source of bread and butter for Kashmiris. However, the Pakistani military’s taking over tourist hotspots and making a tourism development authority has incensed the local people. They are jittery about Pakistan’s efforts to gobble POK into its federation. By making the high-level committee prepare a draft for the 15th amendment it is believed that Pakistan is making serious attempts to integrate PoJK into its federation. The result has been massive widespread protests and demonstrations at Rawalakot, Bagh, Poonch, Muzaffarabad and Neelam Valley among other districts in Pakistan-occupied Kashmir.

Divesting liberty and rights
Opposition and treasury benches PoJK Assembly have vowed to resist any attempt aimed at divesting the liberated territory and its people of rights that they had gained through a landmark constitutional amendment some four years ago.
The rare consensus was demonstrated by them during a debate on an adjournment motion by PML-N leader and former prime minister Raja Farooq Haider, wherein he took strong exception to a recent letter from the Ministry of Kashmir Affairs in which nomination of three representatives from the PoJK government was sought for a subcommittee constituted to “examine and finalise the proposed draft of 15th amendment”.
“The letter has disregarded facts and attempts to undermine the honour of the legislative assembly. It has not only hurt the Kashmiris who have always braved India’s machinations but also runs the risk of creating misgivings between the Kashmiris and the government of Pakistan,” he said.
Haider recalled that this house had “restored the constitutional, legal, financial and administrative authority of the POJK government following the spirit of parliamentary democracy and the aspirations of Kashmiris” through the 13th amendment in June 2018.
He made it clear that as long as POJK remained in existence with the existing special status, the struggle for freedom of occupied territory would continue with vigour.
Most of his views were endorsed not only by Sardar Hassan Ibrahim of Jammu Kashmir Peoples Party and Bazil Ali Naqvi of Pakistan Peoples Party from the opposition benches but also by Minister for Education Deevan Ali Chughtai, Minister for Local Government Khawaja Farooq Ahmed and some other treasury members. Additionally, it was also widely accused that the council has become a hub of unchecked corruption and political wheeling and dealing ahead of every election in PoJK, largely evading scrutiny of its spending by any investigating or accounting body.
The council that enjoyed administrative control of the POJK Department of Inland Revenue, AG Office and the Directorate General of Audit, would retain 20 per cent of the income tax generated from the POJK territory as well as some other funds to meet the administrative expenditures of its inflated secretariat in Islamabad and some other miscellaneous heads, and also to carry out development activities in Pakistan and PoJK.
However, as the administrative control of all three departments stood transferred to the PoJK government after the 13th amendment, the council was left with no source of income, which, according to sources, had greatly upset the beneficiaries of the previous system.
Interestingly, according to a recent statement, revenue collection had substantially increased in the wake of the 13th amendment, even though the Covid-19 pandemic and an earthquake in the southern districts had affected business activities in PoJK in 2019-20.
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Relationship between Pakistan and PoJK
The relationship between Pakistan and PoJK has remained fluid over. Nothing concrete was laid out in the initial days of Independence to formalize the relationship. The people of PoJK and their leadership, strived hard to get a proper constitution and governance setup. Consequently, several legal and constitutional arrangements were introduced during the nineteen sixties and seventies. All these Acts provided for a Presidential form of Government. The 1970 Act gave full legislative powers to the POJK Assembly, as well as executive powers to POJK Government which enabled it to take major decisions.
In 1974 Azad Jammu and Kashmir Interim Constitution Act 1974 was introduced which governs the affairs of POJK till today. The 1974 Act made drastic changes such as switching to a parliamentary form of government and establishing a new forum called the Council, which was entrusted with significant legislative and executive powers. The formation of the POJK Council was perhaps intended to streamline the relationship between Islamabad and Muzaffarabad. However, the overwhelming feeling in Azad Jammu and Kashmir is that the Council has been unable to achieve the objectives for which it was established. The extent of its authority and performance remains debatable. It is widely believed that the Council’s executive powers drastically hamper the elected government’s ability to take key decisions related to finance, public policy and socio-economic development.
Ever since PoJK came into being in 1947, the Government of Pakistan has always had a strong presence in the region. It controls defence, security, currency, and foreign relations. Key officers of the Government are nominated by the Government of Pakistan. These officers are the Chief Secretary, the Inspector General of Police, the Finance Secretary, the Home Secretary, the Health Secretary, the Accountant-General, and (usually) the Additional Chief Secretary (Development). They are known as “Lent Officers”, and are not under the POJK Government’s control in matters of discipline or posting. Thus, they are a strong check on the exercise of powers by the President and Cabinet of POJK. The system of “Lent Officers” is a permanent feature, and has never been changed.
Without going into details, it can be said that the Government at Muzaffarabad was appointed and removed by – and acted under the control of – the Government of Pakistan. Few political rights were available to the people of POJK under this system. This form of government was presidential; while the Government Act 1960 provided a semblance of democracy, it did not include self-rule for Kashmiris. Even this was soon discarded.
In 1970, POJK was given an elected Government and a Legislative Assembly directly elected by the people. POJK was given powers which, in practice, had not existed in the preceding two decades. The POJK Government Act 1970 was promulgated to serve as the constitution of POJK. It provided that there would be a President, who would be elected directly by Kashmiris living in POJK and Pakistan. It empowered the POJK Assembly to amend the said Act. All executive powers were vested in the President, who was to be aided by a small cabinet of three ministers. Corresponding legislative powers were vested in the Assembly except in respect of defence and security, currency and the external affairs of Azad Jammu and Kashmir.

PoJK Interim Constitution
In 1971, the Assembly amended the Act (without having to seek prior permission from the Government of Pakistan) and gave fundamental rights to the people and writ jurisdiction to the High Court. An Apex Court was also created, in which appeals could be filed against the High Court’s judgments. The power to appoint judges to the superior courts lay with the President of POJK. Importantly, the subjects of foreign trade and foreign aid were included in the legislative and executive authority of the POJK Government which immensely raised internal autonomy to a new height.
In 1974, the elected Legislative Assembly repealed the 1970 Act and enacted the POJK Interim Constitution Act 1974. , The Government of Pakistan, discharging its responsibilities and approved the repeal of the 1970 Act and its replacement by this new Act. The draft was prepared in the offices of the Government of Pakistan. The party in power, led by the elected POJK President and all other major parties, obliged. The AJ&K Assembly consequently passed the POJK Interim Constitution Act 1974. This introduced a parliamentary form of government, and the powers of the AJ&K Government were drastically reduced.
Under the new scheme, powers in respect of 52 subjects, as well as some other important powers related to the appointments of High and Supreme Courts judges were taken away from the POJK Government and vested in the POJK Council. This body consists of elected members from POJK and nominated members from the Parliament of Pakistan.
The subjects falling under the POJK Council’s remit include electricity & Hydro Power Generation, tourism, population planning, banking, insurance, stock exchange and futures markets, trading corporations, telecommunication, planning for economic coordination, highways, miners, oil and gas, development of industries, newspapers etc. The major sources of income of the POJK Government, i.e. income tax and some other taxes, were transferred to the POJK Council, giving it greater control over POJK’s finances. In addition, powers to appoint Judges of the Supreme Court and High Court, the Chief Election Commissioner, and the Auditor General were also taken away from POJK Government and now vested in the Chairman of POJK Council.
According to section 21 of the 1974 Act, whoever is the Prime Minister or Chief Executive of Pakistan shall be Chairman of the POJK Council. All the executive powers of the Council are vested in the Chairman. Thus executive powers in respect of the 52 subjects, as well as powers to fill high offices, virtually stand transferred to the Government of Pakistan. POJK is therefore left with little autonomy or status.

Inherent defects
Some defects are inherent in the scheme of the POJK Council. The executive authority in respect of 52 subjects included in the Third Schedule as well as appointment and removal of Judges of Superior Courts, Chief Election Commissioner, Auditor General, etc, are vested in the Chairman, and the members of the POJK Council (elected or nominated) have no role to play in these matters. The Chairman is not an elected official and is not answerable to any POJK elected body about POJK affairs (even if, as an elected Prime Minister of Pakistan, he is answerable to the Pakistani electorate).
As is obvious, the Chairman is not an elected representative of the people of POJK nor is he answerable to them. Thus, democracy has little place in this system. It is an anomaly that in the setup at Muzaffarabad, executive authority (or whatever is left of it) is vested in an elected cabinet, which is answerable to the Assembly and the people of POJK, while in the POJK Council the opposite is true. This is inconsistent with the norms of a democratic polity in the present era. The political rights of the people of POJK, therefore, stand denied.
In the POJK Council, representation is separately given to Pakistan and POJK. On one side are the Prime Minister/Chief Executive of Pakistan and six Ministers/MPs who are nominated by the Chairman. On the POJK side, six members are elected by the POJK Assembly. This body legislates for POJK and also levies taxes. The composition of the Council is not representative but is heavily tilted in favour of the Government of Pakistan. This is because the Chairman and the six Ministers /MPs all belong to one political party/group, and therefore are more capable of uniting within the Council, while the six elected members are from two or three different parties. In practice, the role of these elected members, in the presence of the high personages representing the Government of Pakistan, is insignificant. Thus the elected representatives have a very insignificant role in legislating on the subjects vested in the POJK Council and levying taxes.

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Legally Speaking

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

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Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

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