Law in the time of war
A conflict is raging in Eurasia since late February this year. After decades of conflicts being associated with Afghanistan, Iraq, Syria and parts of Africa, a war is being fought by White men on both sides – Russians and Ukrainians, much to the horror to most of the world, particularly to the Europeans who thought wars were something distant. The response of the West to the Russian intervention in Ukraine has been to forge European unity, huddling together to support and arm Ukraine, condemn Russia as an aggressor, and increase their defence spending to strengthen the NATO. So far, tolerable. However, the West has also weaponised burgers, credit cards and banking, among other economic measures against Russia. The conflict will cease, hopefully sooner than later, but the impact of weaponisation of the goods of 21st Century is problematic, and inconsistent with many international and economic treaties. The world so hopefully described as ‘flat’ – globalized and interconnected – by Thomas Friedman in his 2005 bestseller.
The World is Flat does not exist any longer. Unseen barriers have come up. In March 2022, McDonalds began closing its nearly 850 restaurants in Russia and decided to exit Russia after 30 years of operations. The first McDonalds outlet came up in Moscow in 1990 and symbolized a bridge between the two Cold War rivals who were till then threatening each other with nuclear weapons. In January 1990, there were long queues outside McDonalds in Moscow’s Pushkin Square. It was still USSR and the Golden Arches, American burgers and fries were a novelty. The media termed it ‘Hot food to help end a Cold War.’ Soon Berlin Wall came down, and world was increasingly connected and accessible. There are many others like McDonalds in Russia – folding up operations or restricting service. In March 2022, French multinational automobile manufacturer Renault announced it was selling its business in Russia.
Around this time, CocaCola and Starbucks had also halted their businesses in Russia. It was followed by Heineken stopping beer production and sales in Russia. Levi’s suspended sales and the streaming giant Netflix stopped providing services. Apart from depriving Russians of Levis 501s and Netflix series, these pullouts have economic costs which drive down the global economy, already battered by Covid. In April 2022, Netflix stated that it had lost 700,000 paid subscribers from Russia. It was Netflix’s first global drop in subscribers in a decade. Russia has threatened retaliation. Leaving Russia potentially exposes companies to a new law that may allow the government to seize local assets of western companies that exit. These counter-measures create legal mazes and discourage investors. While jeans, burgers or movies were tolerable, the financial transactions were hit by Visa, Mastercard and American Express suspending their Russia operations.
Visa and Mastercard cover about 90 percent of credit and debit payments in the world, outside of China, and Mastercard had operated in Russia for more than 25 years. American Express also terminated their business operations in Belarus. Russians were not able to access GPay or Apple Pay. Overnight, the cards issued by Russian banks were not supported by Visa, Mastercard and American Express networks regardless of where they were used. Simultaneously, any cards issued outside of Russia stopped working at Russian merchants or ATMs. There were long lines for cash at banks. Russian holiday makers in South East Asia were left in lurch – many were unable to pay their bills, while Malaysian students in Russia found their bank cards linked to non-Russian banks unusable. The weaponisation of plastic money may have long-term consequences. Many of them may not use Visa or Mastercard again, while multiplicity of cards to ensure redundancy shall raise transaction costs for customers. The Russian holiday makers in tropical islands of South East Asia, or Asian students studying medicine in Russia had no relation with politics or the ongoing conflict. They were collateral economic damage.
Even more damaging has been the weaponisation of SWIFT – Society for Worldwide Interbank Financial Telecommunication, technically a Belgian cooperative society created in 1973 and providing services related to the execution of financial transactions and payments between banks worldwide. It successfully links 11,000 banks and institutions in more than 200 countries, enabling smooth and rapid transfer of money across borders. SWIFT incidentally had nothing to do with the conflict, except the fact that it is controlled by the central banks of the G10 countries, the European Central Bank, and the National Bank of Belgium. In March 2022, seven Russian banks were removed from SWIFT system – Bank Otkritie, Novikombank, Promsvyazbank, Bank Rossiya, Sovcombank, Vnesheconombank (VEB) and VTB Bank. Halting money flow around the world could harm sectors of the economy engaged in international trade and finance.
As the West pulled out, China has been a gainer in this conflict. Several Russian banks are planning to issue cards that use the Chinese UnionPay system, coupled with Russia’s Mir payment network. Even Russia has been developing alternate systems. As a substitute for SWIFT, Russia has developed its cross-border transfer system called System for Transfer of Financial Messages (SPFS). Moscow is also working with Beijing to connect to China’s Cross-Border Interbank Payment System (CIPS). CIPS is a Chinese alternative to SWIFT which processes payments in Chinese Yuan. All these shall raise the cost of doing business worldwide, increase financial disputes, and create distrust in global economy. A pragmatic approach has been taken by the archrival of McDonalds – the fast-food chain Burger King which had nearly 800 outlets in Russia. Burger King halted corporate support for its Russia locations in March but has kept its stores open. It committed USD 3 million to support the Ukrainian refugees and dished out free Whopper meal vouchers to people fleeing to European nations. The economic sanctions on Russia have been a quiet reversal of the Western policy of greater economic integration of the world. The general thought process, around the time China joined World Trade Organisation (WTO) in December 2001 was that as China will become increasingly integrated in world economy, it shall become more democratic and respectful of human rights. It did not happen.
The reverse policy is now being experimented. While China is too integrated with the world economy to be disconnected, Russia has presented an easy target with its actions in Ukraine. ‘Free Trade’ is no longer holy. The essential intention of the 1947 General Agreement of Trade & Tariff (GATT) and 1995 WTO was to minimize the threat of ‘trade wars’, whereby mechanisms such as tariffs, non-tariff barriers and embargoes are imposed for strategic political and economic motives. The current measures against Russia raise questions about the validity of trade measures being used in a political setting or for security interests. The law is little ambiguous here. In previous case related to revocation (post 2014 Crimea takeover) of Russia’s Most Favoured Nation (MFN) status from the EU, the United States and other G7 countries, the WTO panel had concluded that every WTO member may define what it considers to be its essential security interests. However, it may be noted that MFN clause is the foundational principle of the GATT and WTO. We cannot blame Thomas Friedman for his enthusiasm about a peaceful, interdependent and interconnected world. He was the propagator of the ‘Golden Arches theory’, first published as an opinion piece in The New York Times in December 1996, and later in his 1999 book The Lexus and the Olive Tree. It was called the Golden Arches Theory of Conflict Prevention, and simply stated that ‘No two countries that both have a McDonald’s have ever fought a war against each other.’
He could never imagine that burgers would be weaponised. After years of an interconnected world, where foreign capitals were only a flight away, and world was turning into a global village working for common prosperity, tackling common challenges of climate change, and acknowledging environmental degradation; the barriers have come up again. There are long Visa queues for everywhere, most flights do not fly over Russia (increasing fuel consumption and ticket costs), credit cards do not work in many countries (harming tourism and local economy), all-time high oil prices are causing inflation in India (with the poor most affected), and export paperwork has increased manifold. These second-order effects are undesirable. Isolating Russia from the world economic system could drive it closer to China – a highly undesirable scenario for India and the West, while prioritizing politics over economics could trigger further increases in energy and food prices that were already elevated due to Covid, supply shortages, and supply chain disruptions.
Typically, there are surpluses and shortfalls in any economy – from food grains to oil – and it is best if the world remains connected so that the food can reach the hungry without price escalations, and oil prices can stabilize at reasonable levels. A divided world shall be a distrustful, angry and regressive place – prone to radicalization and distrust in the governments. An interconnected world may be a prosperous world. After the US-led boycott of 1980 Moscow Olympics and the retaliatory Soviet Union-led boycott of 1984 Los Angeles Olympics, the world had decided that mixing politics and games does no good. Maybe it is time to decide that mixing politics and economics does no good to the hungry and underprivileged. Let us not weaponise food, oil, insurance, or coffee. Let law prevail in times of war. The author is a retired Army officer and a Supreme Court lawyer.
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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.
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.
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.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
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.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
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.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
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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