The Supreme Court on July 11 held the back-to-back “piecemeal” extensions granted by the Centre to Enforcement Directorate (ED) Director Sanjay Kumar Mishra “illegal and invalid in law”.
However, the Bench headed by Justice B.R. Gavai allowed Mishra to continue in office till July 31, 2023 in order to facilitate a “smooth transition” of office to his successor.
The judgment said the Centre defied a mandamus given by the court itself in a judgment in September 2021 to not give Mishra any further extensions. Instead, the Court said, the government sat “in appeal” of a judicial direction and granted Mishra the one-year extensions in November 2021 and in 2022.
However, the judgment dismissed petitions challenging amendments made to the Central Vigilance Commission (CVC) Act and Delhi Special Police Establishment Act within months of the September 2021 judgment. These amendments had paved the way for the government to stretch Mishra’s tenure. The court said judicial review was necessary only if a law is proved arbitrary or a violation of constitutional or fundamental rights.
On the strength of these changes, the government had again given the 1984-batch Indian Revenue Service officer his third extension in November 2022. He was to continue till November 18, 2023.
The petitions filed by Congress party spokesperson Randeep Singh Surjewala, Trinamool Congress (TMC) leader Mahua Moitra, social activist and General Secretary of Madhya Pradesh Congress Mahila Committee Jaya Thakur had argued that the extensions affect “institutional independence”.
The court’s amicus curiae, senior advocate K.V. Vishwanathan, had argued during the hearings that this case did not concern just one officer. He said the larger issue was to “protect or insulate the institution from the executive”.
Senior advocate A.M. Singhvi, for one of the petitioners, had asked the court if “piecemeal extensions impinge on the independence of the person himself”.
“What is being done is the exact reverse of the fixity of tenure upheld in the statute itself… This shows the government telling the officer ‘unless you do my bidding…” Singhvi had submitted.
Senior advocate Gopal Sankaranarayanan, for petitioners, had exclaimed that “like this, he [Mishra] will go on till he is 95!”Senior advocate Anoop Chaudhary, also for the petitioners, had said the extensions amounted to a “nullification of the court’s judgment”.
Centre’s view on life in J&K post-Article 370 has no bearing on constitutional challenge to abrogation: Supreme Court
A Constitution Bench on July 11 said the Centre’s fresh affidavit claiming that Jammu and Kashmir is witnessing an “unprecedented era of peace, progress and prosperity” following the abrogation of Article 370 on August 4, 2019 has “no bearing on the constitutional challenge” to the repeal of the provision.
The Bench headed by Chief Justice of India D.Y. Chandrachud and four of the senior most judges said it would start hearing the case from August 2. The Constitution Bench deleted the names of bureaucrat Shah Faesal and activist Shehla Rasheed from the petitioners.
With the deletion of Faesal, whose name was part of the cause title, from the array of petitioners, the case would now be called ‘In re: Article 370 of the Constitution’.
The court observed that the Home Ministry affidavit, filed on the eve of the Constitution Bench hearing, only sets out the “perspective of the Union Government regarding the post abrogation of Article 370 developments has no bearing on the issues raised in the petitions and shall not hence be relied upon for that purpose”.
“This case concerns a pure constitutional challenge,” Chief Justice Chandrachud observed.
The petitioners, represented by senior advocates like Rajeev Dhavan, Dushyant Dave, Raju Ramachandran, Gopal Sankaranarayanan, C.U. Singh, Nitya Ramakrishnan and advocates Kamini Jaiswal, Vrinda Grover, Prasanna S., said the “legal challenge remains” despite the Centre’s views about life in the erstwhile State of Jammu and Kashmir after the abrogation.
In its 20-page affidavit, the Centre claimed that post abrogation of Article 370, which deprived Jammu and Kashmir of its special privileges, “life has returned to normalcy in the region after over three decades of turmoil”.
The Ministry has said the “street violence”, which was engineered by terrorists and secessionist networks have become a “thing of the past”.
Organised stone-pelting incidents, linked to the terrorism-separatist agenda, have come down from 1767 in 2018 to zero in 2023, the Centre has said. Bandhs and hartals have also become a distant memory. “Resolute anti-terror actions” have dismantled the “terror eco-system” which has led to a significant drop in terror recruitment from 199 in 2018 to 12 in 2023 till date, the MHA has said.
The government said it has “encouraged policies to mainstream youth” to “wean them away from militancy”. Moreover, the Centre said that work on transit accommodation for the safe return of Kashmiri Pandits to the Valley was in an “advanced stage and is expected to be majorly completed in the next one year”.
The Article 370 case has been pending in the Supreme Court for over two years. The case had not come up after a five-judge Bench refused to refer the petitions to a larger Bench in March 2020.
The petitions have challenged a Presidential Order of August 5, 2019 which blunted Article 370. The Article had accorded special rights and privileges to the people of Jammu and Kashmir since 1954 in accordance with the Instrument of Accession. The special status was bestowed on Jammu and Kashmir by incorporating Article 35A in the Constitution. Article 35A was incorporated by an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. The Parliament was not consulted when the President incorporated Article 35A into the Constitution through a Presidential Order issued under Article 370.
Following the abrogation, the Jammu and Kashmir (Reorganisation) Act of 2019 came into force and bifurcated the State of Jammu and Kashmir into two Union Territories of Jammu and Kashmir and Ladakh. In a day, Jammu and Kashmir had lost its full Statehood and became a Union Territory of the Central Government. The move had been preceded by a state of lockdown in the Valley.
The various petitions have challenged the Centre’s “unilateral” move to impose curfew and unravel the unique federal structure of India by dividing Jammu and Kashmir “without taking consent from the people”.
Validity of Places of Worship Act: Supreme Court gives Centre ‘sufficient time’ to clarify its stand; adjourns case to October 31
The Supreme Court on July 11 gave the Centre “sufficient time” till October 31 to clarify its stand on the validity of the Places of Worship Act, which protects the identity and character of religious places as they were on Independence Day.
Appearing before a Bench headed by Chief Justice of India D. Y. Chandrachud, Solicitor General Tushar Mehta said the government required “a little more time” to make up its mind about the law.
Earlier hearings in 2023 and the previous year had seen the government take similar adjournments seeking more time to come to a decision and file an affidavit.
“The Union of India is taking adjournments after adjournments, if it goes on like this…. Let the hearing start,” former Rajya Sabha MP Subramanian Swamy, urged the court.
But the Chief Justice said the hearing cannot possibly start without hearing the view of the government. “Besides, the petitioners would also want to file their responses to the Centre’s stand,” the court noted.
The Bench said the government, considering the ramifications of the issue involved, should file a comprehensive affidavit. In an earlier hearing, senior advocate Kapil Sibal, appearing for the All India Muslim Personal Law Board, had said the court would have to first consider the question whether a PIL challenging the Places of Worship Act of 1991, a Central legislation, would lie, especially after a five-judge Bench of the apex court had upheld the validity of the Act in its Ayodhya judgment.
The Ayodhya judgment of the Supreme Court had found that the 1991 Act spoke “to our history and to the future of the nation… In preserving the character of places of public worship, the Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future”.
In an October 2022 hearing, Solicitor General Tushar Mehta, who appeared for the government, had however ventured his personal opinion that the remarks made in the Ayodhya judgment about the 1991 Act would not preclude the court from examining the validity of the statute now.
Senior advocate Rakesh Dwivedi, for petitioner Ashwini Kumar Upadhyay, had also agreed that the comments in the Ayodhya verdict about the Act were merely ‘obiter dicta” and did not have the force of law.
Advocates P.B. Suresh, Vipin Nair and Vishnu Shankar Jain, appearing for petitioner Vishwa Bhadra Pujari Purohit Mahasangh, had argued that the validity of the 1991 Act was not in question before the Constitution Bench in the Ayodhya case. A slew of petitions have been filed in the apex court against the Act, contending that the law has barred Hindus, Jains, Buddhists and Sikhs from approaching courts to “re-claim” their places of worship which were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
Supreme Court asks SEBI why law was tweaked to remove provisions prohibiting opacity in FPI ownership
The Supreme Court on July 11 asked the Securities and Exchange Board of India (SEBI) to explain why the law was tweaked in 2018 to junk crucial provisions which prohibited opacity in the ownership structure of Foreign Portfolio Investors (FPI).
The court’s concern was in light of a finding in the Justice A.M. Sapre expert committee report that the SEBI investigation into the allegations made by U.S.-based Hindenburg Research against the Adani Group had hit a wall because of amendments made in the FPI Regulations, 2014. These amendments had put the market regulator in a “chicken-and-egg situation” in its investigation into the “ownership” of 13 overseas entities, including the 12 FPIs mentioned in the Hindenburg report. The expert committee has said the SEBI itself suspected these 13 entities of having “opaque structures” because their chain of ownership was not clear.
“In 2018, the very provision dealing with ‘opaque structure’ and requiring an FPI to be able to disclose every ultimate natural person at the end of the chain of every owner of economic interest in the FPI was done away with,” the Justice Sapre panel report had said in May.
It said for the SEBI to put to rest its suspicions, its investigation would require information about the “ultimate economic ownership”, and not just the “beneficial owners”, of the 13 overseas entities under its lens.
“Then you should go into the background of these amendments… What are the circumstances under which you had changed the provisions dealing with ‘opaque structure’... “Chief Justice Chandrachud addressed Solicitor General Tushar Mehta, appearing for the SEBI.
Mehta however insisted that the SEBI investigation “is going on at full speed”.
“Your Lordships had extended the time for completing our investigation till August 14… We are doing our best,” Mehta said.
Advocate Prashant Bhushan, on the petitioners’ side, however, said the expert committee report had pulled up SEBI for “gross regulatory failure”.
“Further, the SEBI’s change of its FPI law in 2018 is absolutely fatal to its current investigation. They have removed the very definition of ‘opaque structure’ in the FPI Regulations… SEBI cannot do anything now in its present investigation. The amendments to provisions concerning opaque structure of FPIs, its beneficial owners and related party transactions were made to prevent such frauds from being exposed,” Bhushan submitted.
“Mr. Solicitor, we certainly would like to know why you [SEBI] made these changes. Apropos what Mr. Bhushan said, SEBI may be prevented from going into the layers of transactions because of these amendments,” Chief Justice Chandrachud told Mehta.
The SEBI, in a 46-page report filed on July 10, however, disagreed with the expert committee’s conclusions. It maintained that the essential “challenge” to the current investigation did not emanate from the repeal of the “opaque structure” provisions from the Foreign Portfolio Investors (FPI) Regulations.
Instead, the market regulator said the difficulty lay in the existence of thresholds for determination of beneficial owners (BO) of these FPIs. In addition, the SEBI said there had never been any requirement to disclose the “last natural person above every person” owning any economic interest or, in other words, the ultimate owner, of an FPI.
“Since granular details of all underlying investors with ownership, economic, or control interest in entities below the threshold was never required to be made available to the Designated Depository Participants/Custodian of Securities, there was a possibility that the same natural person could hold a significant aggregate economic interest in the FPI via different investing entities, each of which were individually below the threshold for identification as a BO,” SEBI, also represented by advocate Pratap Venugopal, has said in its report.
The market regulator said there was also “ambiguity” regarding entities with economic interest but no ostensible control in an FPI. SEBI said even the Financial Action Task Force, the global money laundering and terrorist financing watchdog, had identified the nebulousness over the “last natural person above every person owning any economic interest in an FPI” as a global challenge.
“The SEBI Board in meeting dated June 28, 2023 has approved the proposal for additional granular disclosures to the last investor from specified types of FPls that either hold more than 50% of their Assets Under Management (AUM) in a single corporate group, or have a total AUM of over ₹25,000 crore, subject to certain exemptions,” the report has informed.
Modi government facing a test from India’s daughters over its handling of Brij Bhushan case: Congress
The Modi government is facing a test from India’s daughters over its handling of the sexual harassment charges against Lok Sabha member and Wrestling Federation of India (WFI) chief Brij Bhushan Sharan Singh, the Congress said on July 11.
Congress general secretary Priyanka Gandhi Vadra, in a tweet, said that going by law and ethics, a person accused of atrocities against women should be removed from his post and a fair investigation ordered. The accused should then be arrested and punished in a court of law, she said.
But in the BJP government, why is the one accused of atrocities against women players who brought laurels to the country protected and why is the matter being hushed up during investigation? Why is the entire government silent on this matter? Why is the accused still in the BJP and why has no action been taken?” Vadra asked.
Questioning Prime Minister Narendra Modi’s ‘silence’ on the issue, Congress spokesperson Supriya Shrinate asked when will Singh be arrested.
“Why is Prime Minister Modi silent on the issue of sexual harassment against women sportspersons? When will Modiji expel MP Brij Bhushan Singh from the party? When will Brij Bhushan Singh be arrested? When will the Modi government stop giving protection and patronising Brij Bhushan Singh? asked Shrinate at a press conference.
“You and your government are facing a test Mr. Modi, not from the Opposition but from India’s daughters,” she added.
On June 15, the Delhi Police filed a chargesheet against Singh for the offences of sexual harassment and stalking six women wrestlers. The police also recommended the cancellation of a POCSO case filed against him on a minor wrestler’s complaint.
Shrinate cited news reports that the Delhi Police, in its chargesheet, had accused the WFI chief of sexual harassment, stalking and intimidation, and requested the court to initiate action to prosecute him.
She added that 15 of the 108 people that the Delhi Police spoke to had made the same allegations to the Oversight Committee that was constituted in January. “Yet, it is ironic that the six-member Oversight Committee set up by the government under Mary Kom ignored these very allegations. During the hearing in February, the wrestlers made allegations of sexual harassment against Brij Bhushan Sharan Singh while testifying before the committee,” she said.
The government didn’t appeal to the wrestlers even when they wanted to throw their hard-earned medals into the Ganga, she said. “Will the government not break its silence even after the chargesheet of the Delhi Police against Brij Bhushan Singh? Will PM Modi still not speak? If this government had any morality, then it would have given protection to the daughters and not to the accused,” Shrinate said.
In Brief:
The Trinamool Congress looks set to sweep the violence-scarred rural polls, keeping intact the mandate it won two years back during the Assembly polls by taking an early but seemingly unassailable lead in results declared till now by the State Election Commission. The Trinamool has won in 16,330 gram panchayat seats out of the 23,344 seats declared, besides leading in 3,002 seats, according to the SEC as of 5.30 pm. Its nearest rival BJP has won 3,790 seats and is leading in 802 seats. In all, elections are being held for 63,229 gram panchayat seats. The Left Front has won 1,365 seats, of which the CPI(M) alone has won 1,206. The Left is currently leading in 621 seats. The Congress won 886 seats and is leading in 256.
Evening Wrap will return tomorrow.
