FEDERALISM DURING THE TIME OF COVID -19 – A Legal Analysis Of The Letter Dated 22.08.2020 Directing Removal Of Restrictions on Inter-State And Inter District Travel

Introduction

In recent times, there has been widespread discourse amongst the citizens of our State on the letter dated 22.08.2020 issued by the Home Secretary, Govt of India. The said letter refers to the Guidelines issued under the Disaster Management Act,2005 (hereinafter DMA)  dated 29.07.2020 namely para 5 of  UNLOCK-3 and directs the Chief Secretaries of various State to abide by the said Guidelines, specifically to ensure that no restrictions are imposed on inter-state and intra-state movement of person and goods. The  letter contained a warning that disobedience  on removal of such restrictions were violative of the guidelines issued by the Ministry of Home Affairs( hereinafter MHA) under the DMA.

The pertinent question that now arises in the minds of most people are, would our state abide by the said letter or continue the said restrictions ?

The present article seeks to deliberate on this legal predicament faced by our State, purely in terms of the constitutional aspect of the conundrum, with the object that the average reader may acquire some familiarity on the legality of the said issue. A word of warning, the present issue and matters related to the Constitution are extremely vast, therefore I will in all earnestness endeavour to keep the said discussion as simple as possible, and touch a myriad of related issues in a brief manner.

Separation of Powers under the Constitution

At the outset, it is pertinent to note that the Constitution of India, envisages a dual polity (cooperative federalism) with a strong centralizing tendency i.e. There exists a clear demarcation of power between the Centre and the States, with the Centre able to exercise its power on the states only in certain circumstances, in a manner provided for under the Constitution. In the words of Dr. B.R Ambedkar the Constitution is ‘a Federal Constitution in as much as it establishes what may be called a Dual Polity(which) … will consist of Union at the Centre and the States at the periphery each endowed with Sovereign Powers to be exercised in the field assigned to them respectively by the Constitution. Yet the Constitution avoided the tight mold of federalism in which the American Constitution was caught and could be both unitary as well as federal according to the requirements of time and circumstances.^[1]’

More specifically, Article 246 read with the  7^th Schedule of the Constitution distributes law making power between the Centre and State  into 3 lists namely List 1 (Union List), List 2 (State List) and List 3( Concurrent List). Thus, subjects matters under list 1 would fall squarely within the exclusive competence of the Parliament i.e. Centre, subject matters falling under List 2 would be within the exclusive competence of the State, and finally for subject matters falling under List 3 the law making powers are shared between the Centre and the State, subject to the principles of repugnancy[2].

The purpose of undertaking the exercise of analyzing this separation of powers is primarily to ascertain  the legislative competence of the  directions in the  letter dated 22.08.2020/ Para 5 of the  Unlock-3 guidelines dated 29.07.2020 viz. removal of restrictions on inter-state and intra-state movement of person and goods. It is interesting to note that the relevant subject matters in the 3 lists, that touch upon the said issue, are as under –

List 1

• Item 23- Highways declared by or under law made by Parliament to be national highways.
• Item 42 – Inter-State trade and commerce.
• Item 81- Inter-State migration; inter-State quarantine

List 2

• Item 1- Public order
• item 2 – Public health
• Item 26 – Trade and commerce within the state

Therefore, it would be plausible to conclude that the provisions in the the  letter dated 22.08.2020/ Para 5 of the  Unlock-3 guidelines dated 29.07.2020, directing removal of restriction on inter-state movement of goods and person would be a  valid direction, and the Centre has the competence to issue such directions. Furthermore, the Centre is constitutionally empowered to issue directions to the States, for the same, under Article 257[3] of the Constitution.

Disaster Management Act,2005  and the Guidelines thereunder

The pertinent question that  now stands is, can the centre issue  statutory directions such as Unlock -3  to the States, in matters exclusively within the domain of the State?  In order to ascertain the said issue we need  to begin by examining the Disaster Management Act, 2005. The said act provides  an active role  for the Centre in connection with Coordinating Advising and Management during  periods of Disaster. This can also  be observed in the Object of the act which states as follows –

‘An Act to provide for the effective management of disasters and for matters connected therewith or incidental thereto.’

The said role can also be observed from various provisions of the Act as well. This role of managing a disaster does not  preclude the Centre from issuing orders, directions and guidelines as are required or warranted by the form of any threatening disaster situation or disaster.

However, it is critical  to note  that the authority, while issuing these orders, directions and guidelines would also have to ensure that they do not go beyond the scope of the act, or the provisions of the Constitution.

The reason being that, these Orders, Directions and Guidelines although being  Statutory in nature derive their powers from the Disaster Management Act,2005 which was enacted by the Parliament of India. Therefore the said Orders, Directions and Guidelines issued by the authorities such as the Ministry of Home Affairs, are a form of ‘Delegated Legislation’

What is delegated legislation ?

The Halsbury’s Laws of England  defines ‘Delegated Legislation’  as all law making which takes place outside the legislature and is expressed as rules, regulations, bye-laws, orders, schemes. Notifications etc. In other words, when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation or delegated legislation^[4]

The scope of delegated legislation has been elucidated by the Hon’ble Supreme Court in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala^[5] wherein it was held that –

17. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature.
18. In G.P. Singh’s Principles of Statutory Interpretation, 10th Edn., it is stated at p. 916:

“Grounds of judicial review: Delegated legislation is open to the scrutiny of courts and may be declared invalid particularly on two grounds: (a) Violation of the Constitution; and (b) Violation of the enabling Act.

This view on the scope of delegated legislation has been reiterated by the Hon’ble Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Subhash Sindhi Coop. Housing Society^[6], wherein it was held that –

27. Executive instructions which have no statutory force, cannot override the law. Therefore, any notice, circular, guidelines, etc. which run contrary to statutory laws cannot be enforced

Federalism and the Sovereignty of t States

As already discussed earlier The Constitution of India envisages a dual polity (cooperative federalism) with a strong centralizing tendency Thus, colloquially speaking  the Constitution permits  Centre to impose its  will  in the affairs of the State, only  in certain specific circumstances, in a manner provided for in the  Constitution. The extent of this  centralizing tendency can be seen in the following provisions such as Article 73 which deals with extent of executive power of the Union, Article 249 which deals with Power of Parliament to legislate with respect to a matter in the State List in the national interest, Article 254 which  deals with  Inconsistency between laws made by Parliament and laws made by the Legislatures of States, Article 256 which deals with Obligation of States and Union, Article 257 which deals with Control of Union over States in certain cases. Article 352 Proclamation of Emergency, Article 356 which deals with Provisions in case of failure of State machinery and Article 360 which deals with provisions as to Financial emergency.

Therefore a bare reading of the abovementioned provisions of the Constitution makes it abundantly clear that the Union has the power to interfere with matters of the State subject to certain conditions such as ratification by 2/3rd of the Rajya Sabha, Declaration of Emergency by the Parliament among others. In the present situation none of these conditions have been met, for enabling the Centre to exercise its power on matters exclusively within the domain of the State.

 

It is interesting to note that the Hon’ble Supreme Court has also elucidated on this contentious issue on Centre-State Relations  in some of the cases mentioned below

In  State of W.B. v. Union of India^[7], the Hon’ble Court held that –

Para 98. “To conclude: the Indian Constitution accepts the federal concept and distributes the sovereign powers between the coordinate constitutional entities, namely, the Union and the States. This concept implies that one cannot encroach upon the governmental functions or instrumentalities of the other, unless the Constitution expressly provides for such interference. The legislative fields allotted to the units cover subjects for legislation and they do not deal with the relationship between the two coordinate units functioning in their allotted fields: this is regulated by other provisions of the Constitution and there is no provision which enables one unit to take away the property of another except by agreement. The future stability of our vast country with its unity in diversity depends upon the strict adherence of the federal principle, which the fathers of our Constitution have so wisely and foresightedly incorporated therein. This Court has the constitutional power and the correlative duty — a difficult and delicate one — to prevent encroachment, either overtly or covertly, by the Union on State field or vice versa, and thus maintain the balance of federation. The present is a typical case where the court should stop the Union from overstepping its boundary and trespassing into the State field. I would, therefore, hold that the impugned Act, insofar as it confers a power on the Union to acquire the lands owned by the State, including coal mines and coal — bearing lands, is ultra vires. I find on Issues 1, 2 and 3 against the defendant. In view of my findings on the said issues, I do not propose to express my opinion on the additional issue”.

This principle of separation of powers and  sovereignty of States vis-a-vis powers granted under Constitution has been reiterated in  Swaraj Abhiyan (V) v. Union of India^[8], where the Hon’ble Court held that

“ 83. It is to be noted that State enforcement of Union laws usually gives rise to difficult questions concerning the sustainability of cooperative federalism, which we have accepted as our core constitutional ethos. In Jindal Stainless Ltd. v. State of Haryana [Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 : AIR 2016 SC 5617] , a nine-Judge Bench of this Court has reiterated the principles of cooperative federalism in India in the following manner: (SCC pp. 233-34, para 190)

“190. The Union and the States are co-equal in the Indian federal structure. Our Framers created a unique federal structure which cannot be abridged in a sentence or two. The nature of our federalism can only be studied having a thorough understanding of all the provisions of the Constitution. Confirmation that the Union and States are co-equals in the Indian federal structure can be found in the speeches of Hon’ble P.S. Deshmukh, Shri T.T. Krishnamachari and Hon’ble Dr B.R. Ambedkar before the Constituent Assembly. Common philosophy which runs through our Constitution is that both Centre and States have been vested with the substantial powers which are necessary to preserve our unique federation with clear demarcation of power. Calling India as quasi-federal might not be advisable as our features are unique and quite different from other countries like the United States of America, etc. Courts in India should strive to preserve this unique balance which our Framers envisaged, any interference into this balancing act would be detrimental for grand vision proscribed by our Makers. Amorphous nature of our federalism has been even noted by the Sarkaria Commission Report on Centre-State relationship. Cooperative federalism envisaged under our Constitution is a result of pick-and-choose policy which our Framers abstracted from the wisdom of working experience of other Constitutions.”

84. The principle of federalism as present in India cannot be explained in a sentence or two; rather a detailed study of each and every provision of the Constitution would inevitably point that India has divided sovereignty in the form of Centre on one hand and States on the other. Each power house is independent in its own terms. The constitutional scheme invariably leads to the conclusion that at times these institutions meet and interact at various levels to achieve the cherished constitutional goal of cooperative federalism.

Therefore, it is evident that prima facie the Centre, would not be competent to direct the state on matters relating to intra-state/inter district movement of people and goods, unless it falls on  central subjects such as national highways. The letter dated 22.08.2020 issued by the Home Secretary, Govt of India that refers to the Guidelines issued under the Disaster Management Act,2005 (hereinafter DMA)  dated 29.07.2020 namely para 5 of  UNLOCK-3 would therefore lack competence on the issue of intra-state/inter-district movement of persons and goods.

M.H.A’s reliance on the orders of the Hon’ble Supreme Court

However, In light of the said discussion it is also pertinent to take into account the order dated 30.3.2020. of the Hon’ble Supreme Court in Alakh Alok Srivastava v. Union of India^[9] which had held the following:

“Section 54 of the Disaster Management Act, 2005 provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such person shall be punished with imprisonment which may extend to one year or with fine. Disobedience to an order promulgated by a public servant would result in punishment under section 188 of the Indian Penal Code. An advisory which is in the nature of an order made by the public authority attracts section 188 of the Indian Penal Code.

We trust and expect that all concerned viz., State Governments, Public Authorities and Citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety”. ( emphasis supplied)

The Central Government specifically the Ministry of Home Affairs  has  relied on the said order in its various letters addressed to the States to ensure strict Compliance of the said Guidelines. The reasoning of the M.H.A appears to be that as the Hon’ble Supreme Court has taken cognizance of the directives, advisories and orders  and directed its compliance.  The said guidelines, advisories which are in the nature of an Order have now obtained the colour of law in the form, of an Order by the Hon’ble Supreme Court.

This possible reasoning of the Ministry of Home Affairs, in my humble submission seems to be flawed at best. The weakness in the said reasoning are as follows-

• The said Proceedings for which this specific order was issued, was on a specific issue of the plight of migrant workers, in light of the COVID-19 Pandemic.
• A reading of the entire order dated 30.03.2020^[10] in toto, also buttresses the fact that only the specific issue of Migrant Workers, their conditions during the COVID-19 Pandemic has been considered by the Hon’ble Court.
• The matters concerning Inter State migration are in Item 81,List 1 of the Seventh Schedule, of the Constitution therefore it is an issue for which the Union has  complete jurisdiction.
• Article 73 and Article 256 of the Constitution specifically grants the Central Government powers to exercise its executive action on States in matters under List 1 of the Seventh Schedule.

Thus it is evident to note that the manner in which the Central Agencies have been interpreting the Hon’ble Supreme Court’s Order due to it’s generic wording on issue’s beyond just that of migrant workers alone, would be flawed at best. Any order passed to the contrary seeking to subvert the very essence of ‘cooperative federalism’ by infringing on the separate legislative domains, without the procedure prescribed under the Constitution, would be bad in law.

The Hon’ble Supreme Court being a creature of the Constitution itself, would lack the authority to pass orders contrary to the essential features of the Constitution. Further such an imaginative reasoning of the order would also result in a conflict with various decisions passed by a larger quorum of judges on the subject of  cooperative federalism  as held by the Apex Court in a catena of judgments

Conclusion

In conclusion, the competence of the Centre to issue instructions for removal of restrictions on inter-state travel is legitimate and well-founded, and the States are constitutionally bound to abide by such directions. On the issue of inter-district travel, the Centre would in normal circumstances lack the  competence to issue such directions. However, the matter has attained some level of complexity due to the orders of the Hon’ble Supreme Court dated 30.03.2020[11], which the Centre has regularly relied on in its correspondences to the States for ensuring strict compliance of its Guidelines under the DMA. A prudent move would to engage in talks with the relevant Central Authorities to amicable sort out the issue, as well as approach the Supreme Court for clarification of the abovementioned order, taking into consideration the federal structure (with a centralizing tendency) of our constitution.

 

 

 

 

 

[1] CAD VII 33-34 and Granville, Austin, The Indian Constitution, Cornerstone of a Nation, Oxford University Press,233

[2] Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States

[3] Article 257. Control of the Union over States in certain cases

[4] Halsbury’s Laws of England   Vol.44 (4^th Edition) 981-44

[5] (2006) 4 SCC 327

[6] (2013) 5 SCC 427

[7] (1964)1 SCR 371

[8] (2018) 12 SCC 170

[9] W.P 468© and WP469© of 2020

[10] W.P 468© and WP469© of 2020

[11] ibid

LEGAL REGULATORY FRAME WORK FOR ON SHORE WINDFARMS IN INDIA

Energy Production in India, particularly through the medium of  renewable sources such as Solar, Wind etc. has seen a rapid progress in the past few years. In terms of Wind Energy, India has the 4^th largest installed capacity in the World and the 4^th Largest Cumulative capacity in the world[1]. The said advancement can  largely be attributed to the focus by the Government of India on a regulatory framework that greatly incentivises and promotes renewable energy . The Ministry of New and Renewable Energy(MNRE), inter-alia   has promoted renewable sources of energy with the objective of supplementing the energy requirements of the country.  In terms of Wind Energy the MNRE has been planning and developing the basic infrastructure, institutions and resources for research and development, in addition to  formulating copacetic guidelines policies etc. for the sector . Furthermore, the MNRE has also set up the National Institute of Wind Energy as an autonomous R&D institution of the Government of India to foster the development of Wind Energy in India. According to the MNRE, as of January 2020 approximately 37,607.70 MWp (Mega Watt peak) power has been generated from Wind Energy[2].

Legal Regulatory Frame Work

The growth in the Wind Energy Sector was given further impetus by the National Electricity Policy notified on 12.02.2005, which inter-alia aims at laying broad guidelines for accelerated development of the power sectors keeping in view availability of energy resources, technology available to exploit these resources. The said policy also notes the importance of renewable sources of energy such as wind energy and accordingly vide Resolution No.5.220. acknowledges that feasible potential of non-conventional energy sources including wind energy,  would need to be exploited to create additional power generation capacity with a view to increase the overall share of non-conventional energy in the electricity mix. Moreover, the policy also emphasises the need for further effort to encourage private sector participation through suitable promotional measures.

While on the theme of legal regulatory framework pertaining to onshore windfarms in India, it is particularly interesting to note that Wind Power Projects are not constrained by the requirement of prior Environment Clearance as envisaged under  the EIA notification,2006. The said notification governs various projects and activities and imposes certain restrictions on new projects or activities, or modernisation of existing projects based on their potential environmental impacts, subject to prior Environmental Clearance from the competent authorities. It can be inferred from the  exemption under the EIA, Notification 2006 that Wind Energy sector and the production of energy thereof, is considered by the Government of India, to be a non polluting source of energy with very limited impact on the environment. Albeit such a presupposition would find an equal amount of opposition from certain quarters. The said rationale can also be noticed in the ‘Revised  Categorisation of Industries’ as issued by the Central Pollution Control Board on 29.02.2016. The said instrument categorises industries as Red, Orange, Green and White according to the pollution index score. For e.g. Industries at the opposite of the ends of the spectrum such as Red and White are categorised as such, due to the Red category having a Pollution Index Score of 60 and above, and the White Category having a Pollution Index Score including and upto 20.  In the said instrument ,Wind Power, can be located at Table G-5 Titled Final list of White Category of Industries at S.No 35 . It is interesting to note, that the concept of white category of industries was only introduced in the Categorisation of industries in the year 2016 by the abovementioned instrument. The prior guidelines for Categorisations as introduced earlier by the MoEF in 1989, and subsequently by various State Pollution Control Boards.  provided no such Category.  The significance of an Industry being categorised as white, particularly in light of the present context i.e. Wind Energy, is that such White Category industries are not required to obtain ‘Consent to Operate’ as provided for under the The Air (Prevention and Control of Pollution) Act, 1981, and The Water (Prevention and Control of Pollution) Act, 1974. However, an intimation to the concerned SPCB/PCC is required. The said rationale was reiterated and revised further by the Central Pollution Control Board, vide letter No. B-29012/ESS/CPA/2016-17/2570 dated 02.02.2017. The letter while addressing the various State Pollution Control Boards, on the modifications to the mechanisms for granting of consent to various categories of industries stated that White Category Industries would not need to obtain ‘Consents’. under the Air and Water Act. Thus any Wind Energy Project would  not require either Consent to Operate, or Consent to Establish under the Air and Water Act.

However, to ensure a certain degree of  regulation of On Shore Wind Energy Sector, the Ministry of New and Renewable Energy vide Office Memorandum No. F.66/183/2016-WE dated 22.10.2016  in supersession of the earlier guidelines dated July 1995 and July 1996, has issued ‘Guidelines for Development of Onshore Wind Power Projects’. The said guidelines was issued with the objective of facilitating the development of wind power projects in an efficient, cost, effective and environmentally benign manner taking into account the requirements of project developers, State and national imperatives. The said instrument interalia provides guidelines on site selection and feasibility, Type certification and quality assurance- wherein it is mandatory for manufacturers of wind turbines and components to obtain type and  quality certificate by an Internationally Accredited Certificate etc. It is also pertinent to note that, it also provides guidelines for micrositing and directs that no Wind turbines should be placed within 500m of any dwelling. The Guidelines has also tasked the NIWE with prescribing criteria for noise and shadow flicker, as well as formulation of guidelines for decommissioning of wind turbines,

In the event of a Wind Energy Project, being constructed on forest land, clearance under Section 2 of the Forest Conservation Act,1980 would be mandatory. However, in terms of payment of NPV( Net Present Value ), for diversions of  forest land for non-forest purposes such as Wind Power Projects, the Hon’ble Supreme Court vide order dated 24.04.2008 in T.N Godavarman v. Union of India W.P.(c) 202 of 1995 has held that such projects should pay only 50% of NPV at the minimum rate charges, provided minimal tree felling is involved. In addition to the abovementioned compliances, the MoEF & CC has also issued a ‘Handbook of Guidelines issued for effective and transparent implementation of the provisions of Forest (Conservation) Act,1980’,dated 29.03.2019 which also provides general guidelines for establishment of windmills/farms requiring forest land in Part B, Chapter -8. It is pertinent to note that the said guidelines superseded the earlier guidelines titled ‘Guidelines for diversions of forest land for non-forest purposes under the Forest Conservation Act 1980 for projects utilizing Wind Energy’ dated 14.05.2004, which had been issued for the same purpose. The 2019 guidelines interalia stipulates Areas in National Parks and Sanctuaries, Areas of Outstanding Natural Beauty, sites of natural heritage, archaeological importance, special scientific interests and important landscapes should not be considered for establishment for Wind farms, and such wind farms should be located at a safe distance from such sites. The said guidelines also directs that Windmills should be located at a distance of more than 300 m from highways and villages, and that in forest areas, wind mills of power generating capacity less than 500 KW would not be permitted except if it is in the periphery of wind farms having high capacity turbines, and stand alone off grid wind mills upto 10 KW. The said guidelines were partially modified in 26.08.2019 when the MoEF & CC vide O.M no FC-11/85/2019-FC dated 26.08.2019 directed the State/UT Governments not to levy lease rent of Rs 30,000/ – per MW for 30 years in respect of Wind Power Project.

Furthermore, the Ministry of New & Renewable Energy has vide order dated 18.06.2019 also resolved to set up Dispute Resolution Committee for expeditious resolution of disputes that may arise beyond the scope of Contractual Agreement between solar/wind developers and SECI/NTPC. Similarly  vide order dated 18.02.2020 the Ministry has also constituted a Renewable Industry Promotion Facilitation Board (REIPFB) particularly aimed at removing obstacles and difficulties which investors are likely to face in bringing investment to the said sector.

Conclusion

Despite the said regulatory frame work, further studies are yet required to determine the actual environmental impact of Onshore wind power projects, particularly in terms of the carrying capacity of an area. This can only be achieved if apart from promoting rapid growth of the Wind Energy Sector, equal importance is given in terms of conducting studies on the actual environmental impacts of Wind Energy Farms, recording its impacts at both construction phase and implementation phase. By doing so, the regulatory framework for onshore wind farms can be made more robust and effective.

[1] Global Wind Statistics,2019 by the Global Wind Energy Council

[2] https://mnre.gov.in/physical-progress-achievements

Combating The Unseen Enemy : A Brief Analysis On The Policy, Regulations And Decisions That Aided In Sikkim’s Battle Against Covid- 19

The Covid -19 battle has been extremely stressful for the entire world and has led to the loss of countless lives as well as  immense economic damage .At present , India has to a large extent avoided the kind of casualties that Western Countries are currently facing. However, the country still has numbers that are beyond what one would define as safe or comfortable. In these dark times, Sikkim has been the only state to be free of the Covid-19 assault that has brought the entire world to its knees.  This can largely be attributed to the swift decision making abilities of the Hon’ble Chief Minister and the efficient bureaucracy working with him as well as the disciplined people of Sikkim..

The response of the Govt. of Sikkim has been swift and well planned, even prior to the onslaught of Covid 19 cases in our country. The first confirmed case of Covid-19 in India was in Kerala on the 30^th of January 2020, with the 2^nd and 3^rd cases reported in the same state on the 2^nd and 3^rd of February 2020 respectively. It is critical to note that even prior to the first reported case in India, the State Govt. had convened a meeting on the 28^th of January 2020 to discuss the preparedness for the possible Covid 19 epidemic and had begun preparation for the same.

By the 4^th of March  2020 approximately 29 cases had been reported in India. The State noting that there might be a possible disaster on hand convened another meeting to review the preparedness and action plan for a possible Covid-19 outbreak in Sikkim which culminated in various major decisions, some of them being 24×7  Screening and quarantine process at check posts, Identification of isolation wards and quarantine facilities  at STNM, Sochaygang and various other hospitals in the different districts, suspension of inner line permits etc.

On 11^th March 2020, to ease public anxiety on the possible outbreak, the Health dept also conducted a press conference and shared the measures taken to prevent an out break such as tracking and quarantine of foreign nationals, thermal scanning at check posts . Creation of the ‘104’ helpline number. Similarly, to spread awareness the Education dept. also conducted an awareness programs about Covid -19 at various schools in the State.

Thereafter on 16^th March 2020 , noting the situation in the country worsening the Hon’ble Chief Minister chaired a high level cabinet meeting and made critical decisions that would ensure further safety of the citizens of the State such as Ban on entry of all domestic tourists, closure of all possible places of  public gatherings such as gyms, casinos, schools, colleges etc  Closure of all check posts to visitors, except Rangpo and Melli, Conversion of Tourism Guest House to a Quarantine Ward etc. Most importantly a decision was made to constitute District Level and State Level Task Force’s to tackle the imminent threat of Covid 19

The Various departments in pursuance of the said decisions took immediate steps by passing various orders. .  The Govt also knowing that the  battle against Covid -19 needed awareness to be generated, conducted a Coordination meeting with the Media fraternity on 17^th Match 2020 for the same, as well as a ‘Precautionary Awareness Meeting’ for the Pharmaceutical Companies on the 18^th of March 2020.

The decision to form the District Level and State level Task force played a major role in increasing efficiency to combat Covid-19. This lead to creation of  Rapid Response Team’s for investigating and management of outbreaks within the district wherever required, efficient surveillance and screening etc .

With the District Level Task force working and coordinating various activities with maximum effort, the groundwork for a smooth functioning machinery to battle Covid -19 had been laid.  However, not one to fall into laxity, the State Government conducted its first State Level Task Force Meeting on 19^th of March 2020, where further  critical decisions were taken such as suspension of non-essential work in Government offices, Transfer of Fund to Health dept for purchase of additional equipment and supplies in preparation of a possible outbreak etc. This was also followed by inspections  of Check posts and Quarantine Centers on the 21^st of March 2020.

Similarly the State Level Task Force conducted yet another meeting on the same day i.e. 21^st March 2020, wherein even further decisions were made such as the need for immediate implementation of the Epidemic Diseases Act, Ensuring no spike in price of essential commodities, Designation of 8^th and 9^th floors of STNM,Sochaygang for Covid 19 treatment etc.

The Govt. of Sikkim next noted the misuse of vehicle passes .and immediately on the 14^th April 2020 decided to streamline the Vehicle pass system by issuing an Office Memorandum that permitted only Magistrates and BDO’s to issue vehicle passes. Furthermore, the DM’s and SDMS were also directed to ensure that only two fresh passes could be  issued by a BDO for each GPU ( for medical emergencies and 1 for supplies of essential services), in conjunction various orders Prohibiting movement were also   passed by the respective District Administrations .

By the 14^th of April, the Centre had decided to extend the lockdown imposed earlier. The Sikkim Government now noted that apart from safety measures at home, it was also of critical importance to protect the Sikkimese stranded in various parts of India and thus on the same day vide an Office Memorandum the State Govt. designated Nodal Officers for providing assistance to Sikkimese people outside the State.

The Hon’ble C.M conducted another high level cabinet meeting on the 16^th of April 2020 where decisions such as grant of honorarium of 5000 Rs to our frontline warriors from Asha, Compilation of left out beneficiaries for food relief packets etc. was made. Furthermore, the Hon’ble C.M on the same day vide notification ensured that 30,000 Rs per patient was granted to those patients stranded outside the State.

By the 17^th of April 2020 the Govt of Sikkim notified Standard operating procedures for Social Distancing for offices, Workplaces, Factories and Establishments as well  as consolidated guidelines for permitted and non permitted activities in anticipation of easing of lockdown restrictions . Orders were also issued for Govt offices and PSUS mandating that  1/3^rd of staff was  attend as per roster to ensure delivery of public services etc. Notification was also issued by the Govt. on the same day directing the compulsory wearing of masks at public places, prohibition of spitting, 1 hour gap between shifts, sanitization of work places between shifts etc.

Another critical decision was the creation of Transit Camps, these camps were created at all Districts to ensure Drivers and helper of vehicles carrying essential goods do not risk general public. Drivers carrying essential goods were to halt only at Transit camps where they would be provided food and lodging and be screened. Furthermore, the drivers of such vehicles were restricted  to go to their respective houses to prevent risk of any possible spread of infection.

The next State level Task force meeting on 18^th April 2020 took another set of major decisions such as rapid completion of Viral Laboratory at STNM Hospital, permitting only certain identified vehicles on the list to  ply for ferrying essential commodities. etc.

 By the 20^th of April 2020 the country already had a total of more than 17,000 Covid-19 cases and 543 fatalities, taking note of such a  spiraling situation the Hon’ble Chief Minister convened an Emergency Meeting to take stock of the States Preparedness. A critical decision made during this meeting , was the withdrawal of measures prescribed on the 17^th of April for resumption of offices at 1/3^rd capacity, it was decided that owing to the gravity of the situation, offices would be closed till 3^rd May.  except for necessary services .

Also noting the possibility of rise in domestic violence cases the State Govt. also issued an office memorandum on 21^st April 2020 that directed immediate action on reports of domestic violence as well as shelter and counselling for the victims of such acts of domestic violence among other measures.

With the situation under the control, the next State Level task force meeting was conducted on the  23^rd  of April where a decision was made to prepare an online registration system to facilitate the return of those Sikkimese stranded outside the State.  The 25^th of April saw the establishment of the mobile testing booths at the check posts as well as the inspection of Goli ground, ,Rangpo the identified site for screening.

During the lockdown the State Government through ICDS and Education department also ensured that children enrolled in the ICDS as well as Mid day meal scheme, availed their nutritional requirements. This was done by distribution of dry rations.

On 29^th April The Ministry of Home Affairs, Govt. of India notified  the procedure for return of stranded persons to their States, for  which the State Govt. had already been making detailed plans. The Office Order on 30^th April appointed the Nodal officers for coordinating work relating to Stranded persons and on the same day during the meeting of the State Level Task Force, presentation on the online registration portal for the Sikkimese returning home was made. Medical teams were also to assess individuals to decide on whether they would be sent to home or institutional quarantine .

By the 1^st of May an announcement was made on such decisions of the State Government.

At this juncture there are many brothers and sisters of our State stranded at the four corners of our nations who now need our support and assistance, and  it is our dharmic duty to assist them and leave no person behind.

As the State Government  embarks on this critical and herculean task, the prayers and support of every Sikkimese is needed for the State Govt. and their fearless frontlines warriors so that they may succeed in this battle against the ‘Unseen Enemy’

The Genesis of the Collegium

There has been a lot of controversy, misconceptions, etc regarding judicial appointments vis a vis the Collegium system of appointment of Judges to the Supreme Court.

The objective of this article is to shed some light on this topic, to the average person on the reasons for the Genesis of the Collegium System with a view to promote a healthy and informed discourse on the merits and demerits of this system. It is imperative that we look in the past and attempt to arrive at an understanding on why this system was created so that we do not suffer from any preconceived notions and prejudice, nor do we allow the mistakes of the past to be repeated if we prioritise the functioning of a healthy  democracy where the rule of law is given pre-eminence.

The word collegium according to the Cambridge Dictionary[1] is an organization for people who have similar interests or do similar work . According to the Blacks law dictionary[2] it is an association of at least three people having the right to assemble and enact rules concerning membership, organisation, and the rights and duties of members.

Appointment of Judges of the Supreme Court  According to the Indian  Constitution

The Provisions for appointment of the Judges of the Supreme Court is found in Article 124 of the Constitution of India.

Specifically Article  124. (2) states that  “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed rom his office in the manner provided in clause ( 4 )”

Article 124 in clear unequivocal terms states that the consultation with Judiciary is a must for appointment of potential Judges to the Supreme Court. In 2015  the Parliament attempted to change the system of Judical Appointments[3]  by  amending  Article 124(2). The wordings in Article 124(2) was made as under –

Article 124  (2) – Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal [on the recommendation of the National Judicial Appointments Commission referred to in Article 124-A] and shall hold office until he attains the age of sixty-five years:

However in 2015  this Amendment was struck down by the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union on  India[4].

1. Some of the underlying causes that led to the establishment of the Collegium

1973

Kesavnanda Bharati v. State of Kerala[5] – in short the Supreme Court held that while exercising amendment powers under Article 368 the Parliament could not change the Basic structure of the Constitution. This landmark judgment overruled I.C. Golaknat[6]h which held that  Part 3  of the constitution relating to fundamental rights could not be amended at all, however it also established the Basic Structure Doctrine wherein the amending power of the Parliament could be exercised provided it did not destroy the basic structure of the Constitution. The Beauty of this Judgment was that it allowed the Parliament the freedom to amend the constitution  including  the fundamental rights provided it was not destroying fundamental rights, Fundamental features  and the identity of the constitution  . The Basic structure doctrine cannot be explained with mathematical precision but it contains the basic ethos and aspirations that the makers of the Constitution had for a new India when the Constitution was drafted. While attempting to explain the Basic Structure Doctrine the judges of the Hon’ble Court had differing view but some of the common beliefs on what constituted basic structure of the constitution were secularism, separation of powers, dignity of the individual, republican and democratic form of Government etc.

The Fallout of this Judgment was that subsequent to this judgment in the same year, when the time came to appoint the Next Chief Justice of India, three of the seniormost judge’s, (Hon’ble Justices –Jaishanker Manilal Shelat, AN Grover and K. S. Hegde)  of the Supreme Court were superseded by the Government when appointing the New Chief Justice of India.

1975

ADM Jabalpur vs Shivakant Shukla[7]  –On the 25^th of June 1975, Emergency was proclaimed by the Government under Mrs Indira Gandhi on account of internal disturbances. By virtue of Article 358[8] the fundamental rights under Article 19[9] stood suspended. On the 27th of June the President issued an order under Article 359 suspending the enforcement of Article 14[10],21[11] and 22[12]. Due to this a large number of persons were detained, upon which multiple petitions for a writ of Habeas[13] Corpus were filed in various High Courts. The Preliminary objections of the Government was that such writs were not maintainable as the claim of deprivation of the petitioners liberty in violation of procedure established by law was available under Article 21 which itself was suspended by the Presidential order dated 27^th June 1975. Due to  some of the High Courts ruling against  the preliminary objections of the Government, the matter reached the Supreme Court. Therefore the question before the Supreme Court to be decided was whether there was any “rule of law”  in India apart from and irrespective of Article 21. In simpliciter can the Parliament/Government deprive a citizen of his basic right to life and liberty as long as they follow the procedure prescribed by law vis a vis  suspending Article 21? i.e. Is Article 21 the sole repository of life and liberty? The case was heard by a five Judge Constitutional Bench where the majority ruled that The “Constitution is the rule of law there cannot be any rule of law other than the constitution” it also held  “Liberty is the gift of the law and may by law forfeited and abridged”. Out of the 5 judges there was a lone dissent by Justice H.R Khanna  he held that “Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law”

The Fall out of this Judgment was that later in 1977 when it was time to select the next chief Justice India, the next in line of succession according to seniority was Justice HR Khanna who was superseded at the behest of the Govt. thus preventing him from being the Chief Justice of India.

From the landmark cases above it can be observed, that the procedure of appointments under Article 124 were being  tampered in such a manner that the Independence of the Judiciary was being put at great Peril. The Government had started skipping appointments of those candidates as Chief Justice’s who were not ruling in favour of the government in important constitutional matters.

2. The three Judges Case ( The establishment of the collegium)

1981 (1^st Judges Case)

1. Gupta v Union of India[14] This case involved the issues pertaining to transfer of judges of a High Court, the appointment of Additional Judges of the High Court and their extension on expiry of their initial term vis a vis the interpretation of Article 217 [15] However this judgment slowly set the path towards the establishment of the Collegium system. This judgment deliberated on the meaning of the word “consult” as provided for under Article 217 which is similar to the provisions made for under Article 124, in doing so it held that the word consult would not mean concurrence and the ultimate authority to decide on judicial appointments would be the executive. Furthermore, regarding appointment of Supreme court Judges this judgment coined the term “collegium” where it held that “There must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge”[16]; Further the Judgment also held that “In this situation, it is quite evident that the opinion of any one of the judges who may be consulted cannot be treated as binding on the President. The power of appointment rests with the President who has no doubt to take the decision on the advice given by the Council of Minister after making the necessary consultation”[17]

1993 (2^nd Judges Case)

Supreme Court Advocates on Record Association v. Union of India[18]  – Prior to this judgment, the Supreme Court in Subhash Sharma v. Union of India[19] had observed that the role of the Chief justice in appointments to the Supreme Court had to be recognized as being of critical importance, and that the interpretation of the Article 124(2) had to be referred to a Larger bench. Subsequently in the year 1993 based on the aforementioned directions and also the writ petitions filed by the Supreme Court Advocates on Record association which had raised critical issues on the transfer and appointment of Judges of the Higher Judiciary etc. a bench of 9 judges was constituted, which convened to decide the aforementioned issues and also to review the Judgment in S.P Gupta v. Union of India[20]. In short the Supreme Court held that the opinion of the Chief Justice has primacy in matters of selection of Judges of the Supreme Court and High Court, and an appointment will not be valid unless the appointment is in conformity with the opinion of the chief Justice. In case of conflict in opinion between the judiciary and executive in matters of appointment, the opinion of the chief Justice i.e. the Judicary would have primacy. The reasoning behind the conclusion was to maintain the independence of the Judiciary. Further to buttress this reasoning some of the examples cited by the bench were that, earlier there were no provisions for consultation in the Govt. of India Act 1919 and also the Govt. of India act 1935, and the absolute discretion was on the executive i.e. the Crown. When the concept of consultation was added in the Constitution it was done to achieve the independence of the Judges of the Superior Judiciary[21]. The majority view in S.P Gupta v. Union of India relating to primacy of chief justice not being given due importance, in matters of transfers and appointments and justifiability in those matters was thus overruled. Furthermore consultation with the Chief Justice would mean that in matters pertaining to appointments in the Supreme Court, the Chief Justice of India had to ascertain the opinion  of two of the senior most judges of  the Supreme Court[22]. It also held that although primacy was given to the opinion of the Chief Justice, there may be certain areas that the executive may be more aware of such as antecedents, personal character etc of the candidate. In that area the opinion of the consultees was to be given due weight upon which non-appointment of the candidate could be permitted. However, if the non-appointment turned out to be a mistake and that mistake was less harmful than a wrong appointment, the recommendation reiterated by the Chief Justice in unanimous agreement of the Judges of the Supreme Court was to be treated as binding[23]. This judgment thus firmly established the collegium system. It paved the way for the judges of the Supreme Court to adjudicate in matters without any interference by the Executive as  had happened in the past.

1998 (3^rd Judges case)

In Re Special Reference  No. of 1998[24]

After the Judgment in Supreme Court Advocates on Record Association v. Union of India[25] , the President of India Shri K.R Narayan on the 23^rd of July 1998, in exercise of his powers under Article 143[26] of the Constitution of India made a reference to the Supreme court for clarification on interpretation of the law with regard to the certain matters as had been decided by the Supreme Court of India in the aforementioned case, such as whether the Chief Justice of India had to only consult two senior most judges of the Supreme Court in matters of appointment of judges to the Supreme Court ?, whether in matters of appointment the Chief Justice could act solely without consulting his senior most colleagues ? etc. The Advocate General while stating his case had also submitted that the Government was not seeking a review or reconsideration of the decision in Supreme Court Advocates on Record Association v. Union of India. Some of the important questions of law as decided by the 9 judge bench in this case were –

• It would be desirable that the collegium i.e. the body of judges deciding the appointments in the Supreme Court which had earlier been decided as comprising of the chief Justice and two of the senior most judges of the Supreme Court should now comprise of the Chief Justice and four of the seniormost judges[27].
• If the majority of the collegium disagrees on the candidature of the appointment of a potential candidate for elevation to the Supreme court the appointment will not happen[28]
• Judicial review of appointments are permissible if the recommendation of the concerned appointment is not a decision of the chief justice and his seniormost colleagues. It is also permissible if views of the senior most judge of the Supreme Court who comes from the High Court of the proposed candidate has not been taken into account[29]

Conclusion

As can be surmised from the short discussion above. The collegium was established with the main objective being to protect the independence of the Judiciary. Various events in the past led to the establishment of this system where Judges appoint themselves. It may have it’s shortcomings and controversies but unless an alternative workable system can be created in matters of judicial appointments that ensures independence of the judiciary then the collegiums system will continue to exist as the best means to ensure that justice is available to the people of India irrespective of  their social status. i.e. a citizen can expect to get justice if he has been wronged by the State irrespective of how much power and resources the state can muster against a single individual.

[1] https://dictionary.cambridge.org/dictionary/english/collegium

[2] Blacks law dictionary, 10^th edition,Thomson Reuters.2014

[3] Constitution (Ninety-ninth Amendment) Act, 2014, S. 2(b) (w.e.f 13-4-2015). 

[4] 2015 SCC OnLine SC 964

[5] (1973) 4 SCC 225

[6] 1967 AIR 1643

[7] (1976) 2 SCC 521

[8] Article 358. Suspension of provisions of Article 19 during emergencies

[9] Article 19. Protection of certain rights regarding freedom of speech etc

[10] Article 14. Equality before law 

[11] Article 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[12] Article 22. Protection against arrest and detention in certain cases

[13] is a power of a constitutional court through which, on application by the petitioner or any interested person, the court may order the authorities to present the person so unlawfully detained before the court, in order to determine whether such person has been lawfully detained or not. And if it is found that the detainment is unlawful to direct that he be released forthwith.

[14] 1981 Supp SC 87

[15] Article 217. Appointment and conditions of the office of a Judge of a High Court

[16] Per Bhagwati, J para 31

[17] Per Venkataramaih, J para 1031

[18] AIR 1994 SC 268

[19] 1991 Supp (1) SCC 574

[20] ibid

[21] Para 46-471,474.

[22] Para 224

[23] Para 501

[24] (1998) 7 SCC 739

[25] AIR 1994 SC 268

[26] Article 143 – Power of the President to consult the Supreme Court

[27] Para 16

[28] Para 21

[29] Para 32

The Creed of a Lawyer

The Creed of a Lawyer 

What manner of men are the men who wear these whitecollar bands and robes of black.

 

These Men of different faiths, races, communities, classes, bound by a sense of duty of service towards justice, equity and good conscience have left their personal beliefs and have decided to make the Constitution their book of Faith.

 

They have vowed to stand not only for the oppressed and the weak, but have also chosen to defend those who no one would defend.

 

This they do with the firm belief that no person is to be deemed guilty unless given an opportunity to prove himself innocent before the Courts of law.

 

These men have chosen to be the sentinels of liberty, knowing that the life they live is but a short period for which must be dedicated to the cause of justice.

 

Fear not Oh Citizen ! in your liberty being destroyed, as these men will stand against the tide when the need arises to protect your liberty

 

Advocate Kazi Sangay Thupden

30/12/2018