More Jobs, not Reservations, will Help Ease the Tension

 The 124^th Constitution amendment, which has now become a law, is aimed at giving 10% reservation in education and government jobs for people belonging to economically weaker sections of the general category. The Amendment Bill was introduced by the government amid criticism by the opposition, which termed the move as a pre-election gimmick. However, with elections just months away, no major political party dared to oppose the bill directly. It may be noted here that there has been a long-standing demand for adopting the affirmative action in favour of the economically weaker sections of the society regardless of their caste, creed and religion. In fact, some people have been demanding that all types of reservations, except on the economic ground, should be done away with to promote the meritocracy and take the country to new heights.

India as on today has already job and education quotas for Schedule Castes, Schedule Tribes to the tune of 15% and 7.5% respectively and later 27% reservations were provided to Other Backwards Classes (OBCs) in the wake of the report of the Mandal Commission report. Former Prime Minister PV Narasimha Rao had also attempted reservation for the poor belonging to the upper castes, but that Bill could not stand judicial scrutiny because a cap of 49.5 % has been fixed by the Supreme Court in the famous Indra Sawhney vs Union of India ‘s case. As per the Constitution, so far, the State can come up with a special provision for educationally and socially backward people as it has been well defined in Article 15 and 16. This Constitution Amendment has already been challenged in the Supreme Court and it has to be seen whether it will stand or not the judicial scrutiny.

All this is laid out in Article 368, which also lays down conditions when the Constitutional Amendment needs to be passed by the majority of State Assemblies, but these conditions apply only when an amendment involves a federal structure or is of common interest to both the Union and the States. During the Lok Sabha debate on the amendment Bill, K.V Thomas of the Congress Party had stated that the ‘Bill has to be passed by a two-thirds majority, and then, 50% of the states have to approve it. But the Finance Minister Arun Jaitley intervened and said, to amend Part 3 of Article 368 of the Constitution (which describes the Power of Parliament to amend the Constitution and procedure thereof) concerns the fundamental rights and, therefore. there is no need to go to state legislatures. Quintessentially, this is not the matter which will have to go to the state assemblies for ratification. How strange it is that the parties like the DMK, AIADMK, TRS and TDP, which have been brazenly defying the 49.5% cap on the reservation, are now talking about the constitutional propriety when it to giving reservation to the economically backwards is concerned. As a matter of fact, there are already many states like Tamilnadu, Karnataka and Maharashtra etc; which have been providing more reservations to the STs, SCs and OBCs than what has been fixed the outer limit by the Supreme Court.

The validity of reservation on the basis of economic backwardness in the absence of social backwardness will depend on how many of the yardsticks of backwardness as laid down in the Indra Sawhney case for OBC reservation are satisfied in the amendment. The ‘Mandal Commission Report’ and the controversy that followed it, is deeply etched in the memory of every Indian. By upholding the Mandal Commission Report, the Apex Court judgment in the case of Indra Sawhney v. Union of India established a central role for itself in every debate on the sensitive issue of reservations in India.

One of the avowed objectives of the Indian Constitution is the creation of an egalitarian society, including, and especially, by way of the eradication of caste and the caste system. In support of this objective, several successive governments have devised various affirmative action policies to eradicate caste and support the social mobility of backward classes. These measures typically include reserving seats in representative and educational institutions or public employment for members of certain classes that have been traditionally and historically marginalised. However, over time, these measures have become a tool for populism and to appease certain communities. Therefore, every time such a measure is introduced, it has resulted in dividing public opinion and caused widespread controversy. On some occasions, this divide has escalated into public demonstrations and even riots, for or against reservation.

When these hotly contested measures have come up for adjudication, the judiciary’s role has not been easy; it has to account for social realities, while simultaneously grounding its decision within the sacred framework of the Constitution. One recurrent controversy that has arisen on multiple occasions before the Apex Court is the criteria for determining backwardness in order to qualify for reservation. There have been several cases that directly deal with this question and the Indra Sawhney v. Union of India is the most significant one.

The weaker sections, as mentioned in Article 46 are a genus of which the backward class of citizens mentioned in Article 16(4) constitute a species. Thus, only backward classes, and not all the weaker sections, are entitled to reservation. Caste and class are not synonymous. The class is not antithetical to caste, caste is an enclosed class. Dr. Ambedkar, at the time of the first amendment, which inserted Clause 4 in Article 15, told Parliament that backward classes are nothing else but a collection of castes. He said that castes are practically the social class. Thus, economic backwardness must be the result of social backwardness.

The court has all along said that that open competition is the norm and equality of opportunity is the norm. In Indra Sawhney case, the 11-judge bench underlined the constitutional provisions, which provided that the government can give reservation for the economically and socially backwards class people whose population is not represented. And it also added that reservation should be limited to deserving candidates of the aforesaid class and well-off people of the classes i.e. creamy layer should be exempted from getting the reservation.

Many people view that the reservation is associated only with castes. It is actually associated with opportunities but unfortunately, in our society 'opportunities are associated with castes’. Reservation system can be discontinued completely for all sections of the Indian society once we reach ‘social equality’. There is no gainsaying that the benefits of reservations have not percolated to the really backward castes. It has been cornered by the dominant castes like Yadavas, Kurmis, Reddys, Kapus, Kammas and Kurbas etc; which have been very assertive in politics also. They also have got the large chunk in the power-sharing. It is very strange that the leaders of these castes have been the vociferous opponents of even the women’s reservation bill. This speaks of their duplicity as that they do not want the holistic development of the society. This also betrays their feudal mentality, which they want to get perpetuated instead of getting rid of this malaise.

Needless to say, that reservation is no solution because no society can stand strengthened on the crutches of reservation. Therefore, the need of the hour is to promote the spirit of entrepreneurship among men and women so that they can get themselves gainfully employed and also help others in getting employment. The duplicity of the political parties has got no explanation because when they are out of power, they will support the cause of reservation for the upper caste but when any other political party talks about, they will come down with hammer and tongs and will accuse with violation of the constitutional propriety.

It is also to be noted that the reservation was contemplated only among Hindus and not in any other communities because the disease of the caste system is theoretically found only among Hindus and not in any other communities or religions. The Supreme Court in Indra Sawhney case observed that the idiotic practice in Hindu society is that the moment a child comes in the womb of mother, even before its umbilical cord is cut off, the innocent child is branded, stigmatised and put in a separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance. The concept of inequality is not known in the kingdom of God (if one believes in the existence of God at all), who creates all beings equally, but some people have created the artificial inequality in the name of casteism with a selfish motive and vested interest. The caste is undoubtedly devilish, and it must be obliterated but one cannot expect it from the present breed of the politicians, who promote the caste system because that helps them in garnering the votes. The fact is that if there are enough jobs, there will be no tension on the Reservation count.

Sabarimala Must be Opened for Women of all Ages

      For the last few days, Sabarimala is again in the thick of news as two women- Bindu Ammini (42) and Kanakdurga (44) of menstruating age sneaked into the sanctum sanctorum of the Lord Ayyappa Temple. Entry of a third woman of almost the same age from Sri Lanka, although she showed a certificate of her removed uterus, has also been reported very prominently in the media. Those who are opposing the entry of the women of the particular age group have become the laughing stock for their retrogressive mindset. They are bringing a bad name to the Hinduism, which is considered to be the most unregimented, flexible and accommodative religion of the world.
      It is difficult to say whether these women are the true devotees of Lord Ayyappa or they simply played hide and seek game to dodge the temple administration. If these women are really the true devotees of Lord Ayyappa then their courage and conviction to defy the stupid convention must be appreciated. Traditions are changed to suit the new ideas and the necessities. A frozen faith is very dangerous to the development of any society. The temple administration must, therefore, eschew the idiotic and superstitious tradition of discriminating against the women between 10-50.
Lord Hanuman has been the all-time greatest celibate, but no woman of any age is prevented from entering the Hanuman Temple and praying before Him. So how come Lord Ayappa’s celibacy is endangered by the mere entry of the women of 10-50 in His temple? If He is weak and vulnerable, then how can He help and protect other devotees?
      In Hindu religion, the female deities are revered and worshipped for their boon giving magnanimities. People pray before Goddess Lakshmi for wealth, Durga for power and energy and Saraswati for learning and wisdom. It may be noted here that all female deities are always depicted in their young age and in the best of attires. Women are the bedrock of the Hindu religion. Without their participation in any festival or any pilgrimage is considered to be incomplete. Then why this anachronism in the temple of Lord Ayyappa?
       Instead of going into the technicalities of the constitution and the ruling of the Supreme Court, it will be in the best interests of the Hindu society that the conservative temple administration eschews the illogical tradition and allow the women to enter the temple. Hindu society must sincerely work to change the obnoxious tradition. It is very intriguing that it is happening at the place, which is known for being the matriarchal society and where Shankarachaya was born, who declared Eko aham dwitiyo nasti. Hence, the sooner this practice is abandoned, the better it is for the larger Hindu society.

Supreme Courts Puts Rafale Controversy to Rest

                                                                 Parmanand Pandey

Rafale Fighter Jets deal case, decided by the Supreme Court, on 14^th December, the last working day before it was closed for the winter vacation has actually brought a sort of political tremor in the country. While on the one hand, the people of the country, by and large, and the Indian Air Force heaved the sigh of relief that the deal with the French Dassault company for the supply of the Rafale Fighter Jets has improved its fighting capacity. Another reason for the satisfaction has been that the security of the country has not at all compromised. On the other hand, however, it has sent some political parties into a tizzy, who wanted to make capital out this deal. This judgement of the Supreme Court has unequivocally vindicated the stand of the government, particularly of the Prime Minister Narendra Modi, that his government has acted above board. The government can also take pride that it has kept itself free from scams and scandals. There is no place for hanky-panky, the government can boast of, in its defence dealings.

It will be interesting to know that before the Rafale controversy, the issue of Bofors Guns had rattled the government of the Late Shri Rajiv Gandhi in the eighties. Although nobody had expressed any doubts over the quality of the Bofors Guns, which later proved its efficacy and excellence in the Kargil war, yet the allegations of underhand bribe payments to some influential persons in the government or having close links with the government proved disastrous for the Rajiv Gandhi government, which lost power in the hustings of 1989 general elections for the Lok Sabha. The conspectus of the Rafale case is that as far back as in the month of June of the year 2001, an in­-principle approval was granted for procurement of 126 fighter-­jets to augment the strength of the Indian Airforce. Simultaneously, a more transparent Defence Procurement Procedure (DPP) was formulated for the first time in the year 2002. A robust ‘offset clause’ was included in the DPP in the year 2005 so as to promote Indigenisation and to that effect Services Qualitative Requirements (SQRs) were prepared in June 2006. On 29^th June 2007 the Defence Acquisition Council (DAC) granted the “Acceptance of Necessity” for the procurement of 126 Medium Multi-Role Combat Aircrafts (MMRCA) including 18 direct fly­away aircrafts (equivalent to a single squadron) to be procured from the Original Equipment Manufacturer (OEM) with the remaining 108 aircrafts to be manufactured by Hindustan Aeronautics Limited (HAL) under licence, to be delivered over a period of 11 years from the date of signing.

The bidding process commenced in August 2007. Six vendors submitted proposals in April 2008. The proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. All these were completed in the year 2011. The commercial bids were opened in November 2011 and M/s Dassault Aviation was chosen sometime in January 2012. Negotiations commenced thereafter and continued but without any final result. In the meantime, there was a change of political dispensation at the centre sometime in the middle of the year 2014. A process of withdrawal of the Request for Proposal in relation to the 126 fighter jets was initiated in March 2015. On 10^th April 2015 an Indo-­French joint statement, for the acquisition of 36 Rafale Jets in fly ­away condition through an Inter-Governmental Agreement was issued and the same was duly approved by the Defence Acquisition Council. The Request for Proposal for the 126 fighter jets was finally withdrawn in June 2015. Negotiations were again carried out and the process was completed after Inter­-Ministerial Consultations with the approval of the Cabinet Committee on Security. The contract along with Aircraft Package Supply Protocol; Weapons Package Supply Protocol; Technical Arrangements and Offset contracts was signed in respect of 36 Rafale Jets on 23^rd September 2016. The aircraft were scheduled to be delivered in phased manner commencing from October 2019.

Things remained quiet until sometime in the month of September 2018 when certain newspapers reported a statement claimed to have been made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the name of Reliance Group was suggested by the Government of India. This triggered the controversy resulting into the filing of the clutch of the writ petitions, civil as well as criminal both, seeking registration of the FIR against the Prime Minister Narendra Modi and quashing of the purchase of 36 Rafale Jets.

The judgement, of the three-judge bench comprising the CJI Ranjan Gogoi and the Justices Sanjay Kishan Kaul and K M Joseph, was written by the Chief Justice of India, said that, ‘adequate military strength and capability to discourage and withstand external aggression and to protect the sovereignty and integrity of India, is a matter of utmost concern for the nation. The empowerment of defence forces with adequate technology and material support is, therefore, a matter of vital importance. Keeping in view the above, it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement and to indicate whether such parameters are more constricted than what the jurisprudence of judicial scrutiny of award of tenders and contracts, that has emerged till date, would legitimately permit.’

The verdict clarified that in such matters the Courts can only interfere when it is found that when there appears to be mala fide and blatant favouritism. The Court further said that ‘in matters of contracts, procurement, etc. would vary with the subject matter and there cannot be any uniform standard or depth of judicial review which could be understood as an across the board principle to apply to all cases of the award of work or procurement of goods/material. The scrutiny of the challenges before the Court, therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement is crucial to the nation’s sovereignty. Significantly, the writ petitions have not questioned the suitability of the fighter jets and its utility to the Indian Airforce. Rather what was doubted was the bona fides of the decision-making process and the price/cost of the equipment. The Apex Court observed that defence procurement involves long gestation periods and delay in procurement will certainly impact the preparedness of our forces. The needs of the armed forces are non-negotiable and uncompromising aspects. Therefore, flexibility in the procurement process is required, which has also been provisioned for in the procedure. The Court said that delays impact the cost of acquisition, as the offer was with ‘in-built escalation’ and was influenced by Euro-Rupee exchange rate variations.

The Supreme Court, in fact, gave a clean chit to the government by saying that, ‘we have studied the material carefully. We have also had the benefit of interacting with senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing. We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract  or requiring detailed scrutiny by the Court.’ Most importantly, the Supreme Court observed that ‘we cannot sit in judgment over the wisdom of deciding to go in for the purchase of 36 aircraft in place of 126. We cannot possibly compel the Government to go in for the purchase of 126 aircraft. This is despite the fact that even before the withdrawal of Rafale Fighter Planes (RFP), an announcement came to be made in April 2015 about the decision to go in only for 36 aircraft. Our country cannot afford to be unprepared/underprepared in a situation where our adversaries are stated to have acquired not only 4^th Generation but even 5^th Generation Aircrafts, of which, we have none and hence, it will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.

The observation of the Court that the pricing details have been shared with the Comptroller and Auditor General and the report of the CAG has been examined by the Public Accounts Committee has, however, left the controversy simmering because the Chairman of the Public Accounts Committee, Mallikarjun Kharge has been saying all along that the government has lied to the Supreme Court as the pricing details were never placed before the Committee. The Court has taken such people to task, who do not go by facts but by perceptions. It said that perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters.

Nevertheless, the controversy does not seem to die down with regard to the pricing of the Rafale Jet fighters despite the unequivocal assertion of the Court such matters are very sensitive to the security of the country and they cannot be compromised. 

Witness Protection is Necessary for Fair Justice

                                                     Parmanand Pandey

The Supreme Court has again voiced its concern for the safety of witnesses, particularly in criminal cases.  The criminal justice is essentially an adversarial system, where the cases are decided on the basis of evidence, be it documentary or oral. Therefore, witnesses play a vital role in facilitating to arrive at correct findings. They are the backbones in the decision-making process.

In ‘Mahender Chawla and others vs Union of India and others’, the Supreme Court has said that whenever, in a dispute, the two sides come out with conflicting version, the witnesses become an important tool to arrive at right conclusions, thereby advancing justice in a matter. It is for this reason that the Legal philosopher Jeremy Bentham stated that “witnesses are eyes and ears of justice”.

A witness may be a partisan or interested witness but even then, his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. A witness is “a person whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences”. The author of the judgement Justice A.K. Sikri has expressed his anguish over the pathetic condition of witnesses in the Indian Legal System. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing the life-threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of ‘Witness Protection Programme’ in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making a statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times, they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of the actual crime. They are not even suitably compensated for the loss of time and the expenditure towards conveyance etc.

In Swaran Singh vs. the State of Punjab, Justice Wadhwa had said the witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend the court many times on their own. It has become routine that case is adjourned until the witness is tired and will stop coming to court. Sometimes a witness is threatened, attacked, or even bribed. There is no protection to the witnesses. By adjourning the case the court also becomes a party to such miscarriage of justice. The witness is not given respect by the court. They are pulled out of the courtroom by the peon. After waiting for the whole day, he sees the matter is adjourned.

There is no proper place for him to sit and drink a glass of water. When he appears, he is subjected to prolong cross-examinations and cross-examinations. Even the qualified Doctors, who come to the courts to depose in medico-legal cases are meted out very shabby treatments as if they themselves are the accused persons For these reasons’ persons avoid becoming a witness and because of this administration of justice are hampered. The witnesses should, therefore, be paid immediately irrespective of the fact whether he is examined, or the matter is adjourned. The time has come now that all courts should be linked with each other through the computer. The Bar Council of India has to play important role in this process to put the criminal justice system on track. The liberal use of technology can go along way in keeping the witnesses from avoidable harassment. Their statements and cross-examination be executed from the safety their homes and workplaces. There is no need for them to make rounds of the courts.

The Apex Court said that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential. They terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.

One of the reasons may be that they do not want lock horns with criminals and influential persons by deposing against them because of threats to their lives, more so when the offenders are hardened criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. The State, therefore, has a definite role to play in protecting the witnesses. As a protector of its citizens, it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for the observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.

In one of the cases, the Supreme Court has said that the mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in a miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing.

In State v. Sanjeev Nanda, the Court reiterated the growing disturbing trend.  In ‘State of U .P. v. Ramesh Prasad Misra’ held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.. When the witnesses are not able to depose correctly in the court of law, it results in the low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is, for this reason, there has been a lot of discussion on witness protection and from various quarters. Demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.

In the cases of victims of terrorism and sexual offences against women and juveniles, the courts have to deal with a very vulnerable section of society, be they, victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal Code, such fear or danger to victims and witnesses may be more common and pronounced. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses must be free. then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.

Therefore, the paramount need is to have a witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system should concede. Live recording of the witnesses has become the need of the hour, which will reduce the difficulties of the witnesses and at the same time provide him/her adequate safety from the threat and intimidation of accused person. The statutory safety provision plus the use of modern technology can go a long way in providing the protection to the witnesses, which is necessary for the fair and unvitiated justice.

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Ominous flouting of Apex Court Order on Fire Crackers

‘Diwali gets noisier; more polluted despite SC curbs’ screams the newspaper headline. The most auspicious Hindu festival of Deepawali or Diwali is celebrated all over the country. On this day Laxmi and Ganesha are worshipped for bringing prosperity and happiness. The other reason is that people rejoice the return of Lord Rama to Ayodhya after his victory over the demon king Ravana. It also marks the harvesting of crops heralding the change of weather reminding us to protect and preserve the ecological balance. However, it has now become a very hazardous festival because of the uncontrolled use of firecrackers, although it is associated with lights and lamps. To curb and control the water and air pollution, Parliament passed the Environment Protection Act of 1986 but still, the level of pollution is going on unabated. The Supreme Court of India has played a sterling role by banning many factories to maintain the ecological balance and keep the water and air neat and clean, yet the noise pollution caused by the firecrackers have not only degraded the air quality but also engendered to many diseases.

In one of the recent judgements in ‘Arun Gopal and others vs Union of India and others’, the Supreme Court has ruled that only green firecrackers of low quality, that too only for two hours between 8.00 p. m. to 10.00 p.m. could be used, which if strictly followed would have improved the air quality across the country but sadly it was cared two hoots by the violators of the judgement, which included all-manufacturers, sellers and buyers of the firecrackers. Poor, very poor or severe air quality/air pollution affects all citizens, irrespective of their age. However, the petitioners emphasised more on the health of children because they are much more vulnerable to air pollutants as exposure thereto may affect them in various ways, including aggravation of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment.

This petition was initially filed in 2015, which has asked for among others to restrict licenses to low hazard fireworks, fireworks to be used only for hours in the evening and teachers must encourage students not to buy and use fireworks. After many long hearings, the Supreme Court decided last month that only the green crackers, with reduced emission, would be permitted to be manufactured and sold. Crackers with toxic effects would be banned. Manufacture, sale and use of joined firecrackers or series crackers were banned because they cause huge air, noise and solid waste problems. Only the licensed traders have been permitted to sell. According to the judgement no e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders to effect online sales. If they do so, they will be hauled up for contempt of court. Barium salts in fireworks were banned. Even those crackers which have already been produced and they do not fulfill the conditions would not be allowed to be sold. Another important point of the judgement was that the governments would encourage community fire cracking as it is practised in other advanced countries. The Apex Court said that even for marriages and other occasions only the sale of improved crackers and green crackers would be permitted.

This judgement has indeed been very lofty one, which has been hailed by all right conscientious people, not only in India but all over the world. However, the implementation of the judgement has left much to be done and there has been a huge hiatus in the preaching and practice. The Diwali which has just gone by has left most of the people wonderstruck because the Supreme Court judgement was observed more in the breach than in compliance. The court had ruled that only low emission firecrackers would be allowed to be burst but the violators had used throughout the night without any fear of the law. The question, therefore, arises what is the sanctity of such orders when they cannot be enforced? In fact, unimplementable Court orders lower down the dignity and the majesty of the law. The Apex Court order was flouted in many ways –from burning non-green crackers to exceeding the time limit.

It must be mentioned here that the pollution in the city of Delhi has gone up 29 times more than tolerable limits. One can see the mornings and evenings in Delhi enveloped with smog. While deciding the case the Apex Court also took into consideration three substantial submissions which were made by the Central Pollution Control Board (CPCB) that (a) Sulphur in fireworks should not be permitted as Sulphur on combustion produces Sulphur Dioxide and the same is extremely harmful to health, (b) it should be burst only in designated places and (c) the joined crackers should be totally banned.

The Court observed that in environmental law, ‘precautionary principle’ is one of the well-recognised principles which is followed to save the environment. Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. The Court said that “we are, however, of the view that the Precautionary Principle and the Polluters Pay Principle are essential features of “Sustainable Development”. The Precautionary Principle- in the context of the municipal law-means: Environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.”

In view of the above-mentioned constitutional and statutory provisions, there should not be any hesitation in holding that the Precautionary Principle and the Polluters Pay Principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. The constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, and it is the inalienable common law right of the clean environment”.

The Court ruled that environment protection is a facet of Article 21. It must be given supremacy over the right to carry on business enshrined in Article 19(1)(g). The Supreme Court said that ‘we state at the cost of repetition that right of health, which is recognised as a facet of Article 21 of the Constitution and, therefore, is a fundamental right, assumes greater importance than other rights. It is not only the petitioners and other applicants who have intervened in support of the petitioners, but the issue involves millions of persons living in Delhi and NCR, whose right to health is at stake. However, for the time being, without going into this debate in greater details, our endeavour is to strive at balancing of two rights, namely, right of the petitioners under Article 21 and right of the manufacturers and traders under Article 19(1)(g) of the Constitution.’ The aspect of economic hardship was also advanced by some, but the Court gave more importance to the protection of life as the economic effect must give way the protection of health.

Needless to say, that firecrackers have led to a high increase in the cases of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment. Some of the diseases continue on a prolonged basis. Some of these which are caused because of the high level of pollution is even irreversible. In such cases, patients may have to continue to get the medical treatment for a much longer period and even for life. However, it has now become loud and clear that only court decisions cannot bear the desired fruits because it involves a large section of society. Therefore, it needs a greater awakening of the people supported by the law enforcing authorities to strictly comply with court orders.

Court Cannot Resolve the Ayodhya Tangle

All Courts, right from the lower court to the Apex Court, have been dithering in pronouncing any judgement on Ayodhya and, in a way that is the correct approach also. In this context, it’s relevant to recall the obiter dicta of the former Chief Justice of India JS Khehar, who had suggested during one of the hearings of the Ayodhya case that all parties to the dispute must make sincere efforts to settle the issue amicably out of court.
Therefore, those who were expecting that the Supreme Court would start day-to-day hearing of the Ayodhya matter were extremely disappointed when the Chief Ranjan Gogoi led bench did not take even a minute to adjourn the case till January 2019. He also did not tell about the composition of the bench whether it would be headed by him or any new bench would be constituted to hear the case. The previous Chief Justice of India Dipak Misra had fixed the date of the 29th October 2018 for the day-to-day hearing. So all hopes of the early decision in the case from the Supreme Court are now dashed and shattered.
In one of the previous hearings, the senior advocate of the Sunni Waqf Board Kapil Sibbal wanted the hearings to be adjourned till July 2019 when the general elections of the Parliament would be over. Therefore, it must have warmed the cockles of the advocates like him and Rajiv Dhawan, who got the temporary relief without making any submission before the Court. There are no two opinions that a tiny minority has been holding the overwhelming majority to ransom and not allowing the Ram temple to be built. Sadly, the government has also been capitulated and is not in a position to take any stand.
How strange it is that we cannot have a temple even in Ayodhya where millions and millions of Hindus across the world have the unshakable faith that it was the place of Lord Rama's birth. Moreover, the remains of the temple have also been found from the site during excavation, which further substantiates the claim of Hindus. 
There may be thousands of temples of Lord Rama in India and abroad but all those temples can never be equated with the importance of Lord Rama’s temple at Ayodhya. Kashi, Mathura and Ayodhya have been the most sacred places for Hindus. There are abundant proofs that Mosques were constructed exactly on those sites where the temples of Lord Shiva, Lord Rama and Lord Krishna existed in Kashi, Ayodhya and Mathura. Obviously, the mosques were built by desecrating, defiling and destroying the temples and thereby hurting the sentiments of Hindus. 
This is the time for the Muslims to atone and give up their claims on Ayodhya, Mathura and Kashi to win the hearts of Hindus and to build bridges of unity and confidence between the two communities. An analogy will suffice: There may be lakhs of Churches all over the world but can all Churches be compared to the Church of the Vatican? Similarly, there must be many lakhs of Masjids throughout the world but can those Mosques be treated equivalently to the Masjids of Mecca and Medina? The reply is emphatic no. If all Mosques cannot be compared with Mosques of Mecca and Medina and all Churches cannot be compared with the Church of Vatican then the temple of Lord Rama at Ayodhya has certainly and distinctly very high status for Hindus. 
After all, 99.99 per cent Muslims of India have their common ancestry with Hindus. Can they not renounce their intransigence and pave the way for the construction of a grand temple at Ayodhya? This gesture of theirs will go a long way in fostering the most cordial and harmonious relationship between the Hindus and the Muslims, which can never be found in the court verdict. However, if the issue is not settled amicably the government has the last but not the preferable choice to adopt the Ordinance route to ensure that the temple is built without causing any further acrimony between the two communities.

Inimitable Business Style of Desi Entrepreneurs

While going up from Haridwar to the heights of Badrinath and coming down from there to Haridwar, journalists Hemant Tiwari, Siddharth Kalhans and I spent nearly 30 hours travelling in the same car. Obviously, we talked and discussed a range of issues and topics. We all marvel at the entrepreneurial skill of two persons- Baba Ramdev and Mahashaya Dharampal, who has passed a few days back at the ripe old age of 100 years. Mahasha ji. as he was called, was just a literate person with no academic degree. He was plying Tanga in old Delhi after migrating from Pakistan. He started grinding spices at his house to supplement his income. In due course of time, he became the shahenshah of masalas. His MDH brand spices are now sold all over the world and enjoy the status of uncrowned king.  I have met him twice with a leading lawyer HL Kumar, who recommended him to engage me for some legal cases.

There has been a striking similarity in both personalities. Both have been ardent Arya Samajis. Their personal life has been irreducibly simple. Both never possessed academic degrees. They never engaged models and other professionals for advertising their products. As a business journalist Kalhans says that both of them must be complimented for keeping the predatory multi-national companies at bay. These multinational companies do not bat even an eyelid to destroy Desi companies. They burn thousands of crores in defaming and destroying the business empires and goodwill of Desi companies. Their only morality is to establish the hegemony of their produces at any cost.

Therefore, if Baba Ramdev and Mahasha ji have been able to beat the multinational companies by giving quality products at highly completive prices, there is something remarkable in them. It hardly needs to be mentioned that it is Baba Ramdev, who made Yoga egalitarian, which was confined only to some elitists. Yoga was considered to be esoteric but thanks to Baba Ramdev, Sri Sri Ravishankar ji Maharaj and Narendra Modi, it has become a household pastime for the good of all.

Thousands of young boys and girls have got gainful employment as Yoga teachers across the world. Similarly, many lakhs are engaged in floriculture, horticulture, animal husbandry, dairy farming and producing and selling of Patanjali products. Do you think if there has been any compromise with the quality of their products, multinational companies had spared from brutally slaughtering them in the broad daylight?

Most importantly, the Indian capital remains in India as they have successfully prevented its flight to other countries. They have not only faced the tough challenges of the multinational companies but have beaten them with their sticks.