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Jindal's waste incineration based power plant, an electoral issue in Delhi's Okhla

Written By BiharWatch on Friday, March 22, 2019 | 9:18 AM

The residents of national capital's Okhla region have turned hazardous Chinese waste incinerator technology being used by Jindal company's power plant into their core electoral issue in the upcoming parliamentary elections.

As part of ongoing protests since March 2005, a public march and rally is scheduled to be held from New Friends Colony market at 10:00 AM on March 23 and march down Mathura Road to the Indraprastha Apollo Hospital. The residents and environmental groups have been demanding shut down of the plant which has engulfed this region of the national capital into a major public health crisis.  

Notably, in September 2018 the National Green Tribunal was told by a joint inspection committee of Central Pollution Control Board (CPCB) and the Delhi Pollution Control Committee (DPCC) that the Okhla Waste-to-Energy plant and similar power plants at Delhi's Ghazipur and Narela-Bawana are not compliant with emission standards.

These plants are monuments of environmental lawlessness in the national capital. They are routinely burning biomass but Delhi Government and Central Goverment continues to muslead citizens and media by saying that biomass burning in Punjab and Hariyana is responsible for air pollution load in the national capital. 
Emissions problems at Okhla are compounded by the fact that the plant is situated in a thickly populated part of south Delhi surrounded by the colonies of Sukhdev Vihar, Ishwar Nagar, New Friends Colony, Jasola, Sarita Vihar, Haji Colony and Ghaffar Manzil.
Despite such dangerously polluting conditions, the plant operated by Jindal Ecopolis, has been seeking to expand the plant from its present 16 megawatt capacity to 20 megawatts. This move faced bitter opposition at a fake public hearing of the Delhi Pollution Control Committee held on January 16 January, 2019 from residents and environmental groups like ToxicsWatch Alliance and National Alliance of Peoples' Movements.

Unmindful of such protests Jindal company has erected a third smokestack and operationalized it, severely increasing the pollution load and disease burden in the area. It has aggravated air pollution linked adverse public health effects.

Residents of Okhla have decided to boycott those political parties which has been protecting and promoting installation such tried, tested and failed hazardous technology amidst residential, educational, hospital and research areas in the vicinity of Okhla Bird Sanctuary and water sources.


Constitution Bench of Supreme Court sans Justices Dipak Misra and Sikri all set to hear petitions against colourable Aadhaar Ordinance, Aadhaar Act and UID/Aadhaar scheme

Written By BiharWatch on Friday, March 08, 2019 | 6:56 AM

Verdicts of Justices D Y Chandrachud, Sikri and Protik Prakash Banerjee reveal questionable nature of Aadhaar law and UID/Aadhaar scheme

 ‘He who has been banned is not, in fact, simply set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable’
- Giorgio Agamben, Italian philosopher, 1998

“The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.”
- Order of Justice D Y Chandrachud, Constitution Bench, Supreme Court, 26 September, 2018 (pages 1028-1048)

“The descendants of Mr. Nilekani have perfected the doublespeak of 1984 (George Orwell) if not the Yes Minister and Yes Prime Minister (Jonathan Lynn and Anthony Jay, BBC) where it appears that a given question is being answered, though no information is given.”
- Justice Protik Prakash Banerjee, Calcutta High Court, January 3, 2019

“The violations of fundamental rights resulting from the Aadhaar scheme were tested on the touchstone of proportionality. The measures adopted by the respondents fail to satisfy the test of necessity and proportionality for the following reasons:

(a) Under the Aadhaar project, requesting entities can hold the identity information of individuals, for a temporary period. It was admitted by UIDAI that AUAs may store additional information according to their requirement to secure their system. ASAs have also been permitted to store logs of authentication transactions for a specific time period. It has been admitted by UIDAI that it gets the AUA code, ASA code, unique device code and the registered device code used for authentication, and  that UIDAI would know from which device the authentication took place and through which AUA/ASA. Under the Regulations, UIDAI further stores the authentication transaction data. This is in violation of widely recognized data minimisation principles which mandate that data collectors and processors delete personal data records when the purpose for which it has been collected is fulfilled. Moreover, using the meta-data related to the transaction, the location of the authentication can easily be traced using the IP address, which impacts upon the privacy of the individual.

(b) From the verification log, it is possible to locate the places of transactions by an individual in the past five years. It is also possible through the Aadhaar database to track the current location of an individual, even without the verification log. The architecture of Aadhaar poses a risk of potential surveillance activities through the Aadhaar database. Any leakage in the verification log poses an additional risk of an individual’s biometric data being vulnerable to unauthorised exploitation by third parties.

(c) The biometric database in the CIDR is accessible to third-party vendors providing biometric search and de-duplication algorithms, since neither the Central Government nor UIDAI have the source code for the deduplication technology which is at the heart of the programme. The source code belongs to a foreign corporation. UIDAI is merely a licensee. Prior to the enactment of the Aadhaar Act, without the consent of individual citizens, UIDAI contracted with L-1 Identity Solutions (the foreign entity which provided the source code for biometric storage) to provide to it any personal information related to any resident of India. This is contrary to the basic requirement that an individual has the right to protect herself by maintaining control over personal information. The protection of the data of 1.2 billion citizens is a question of national security and cannot be subjected to the mere terms and conditions of a normal contract.

(d)Before the enactment of the Aadhaar Act, MOUs signed between UIDAI and Registrars were not contracts within the purview of Article 299 of the Constitution, and therefore, do not cover the acts done by the private entities engaged by the Registrars for enrolment. Since there is no privity of contract between UIDAI and the Enrolling agencies, the activities of the private parties engaged in the process of enrolment before the enactment of the Aadhaar Act have no statutory or legal backing.

(e) Under the Aadhaar architecture, UIDAI is the sole authority which carries out all administrative, adjudicatory, investigative, and monitoring functions of the project. While the Act confers these functions on UIDAI, it does not place any institutional accountability upon UIDAI to protect the database of citizens’ personal information. UIDAI also takes no institutional responsibility for verifying whether the data entered and stored in the CIDR is correct and authentic. The task has been delegated to the enrolment agency or the Registrar. Verification of data being entered in the CIDR is a highly sensitive task for which the UIDAI ought to have taken responsibility. The Aadhaar Act is also silent on the liability of UIDAI and its personnel in case of their non-compliance of the provisions of the Act or the regulations.

(f) Section 47 of the Act violates citizens’ right to seek remedies. Under Section 47(1), a court can take cognizance of an offence punishable under the Act only on a complaint made by UIDAI or any officer or person authorised by it. Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy. Further, Section 23(2)(s) of the Act requires UIDAI to establish a grievance redressal mechanism. Making the authority which is administering a project, also responsible for providing a grievance redressal mechanism for grievances arising from the project severely compromises the independence of the grievance redressal body.

(g) While the Act creates a regime of criminal offences and penalties, the absence of an independent regulatory framework renders the Act largely ineffective in dealing with data violations. The architecture of Aadhaar ought to have, but has failed to embody within the law the establishment of an independent monitoring authority (with a hierarchy of regulators), along with the broad principles for data protection. This compromise in the independence of the grievance redressal body impacts upon the possibility and quality of justice being delivered to citizens. In the absence of an independent regulatory and monitoring framework which provides robust safeguards for data protection, the Aadhaar Act cannot pass muster against a challenge on the ground of reasonableness under Article 14.

(h) No substantive provisions, such as those providing data minimization, have been laid down as guiding principles for the oversight mechanism provided under Section 33(2), which permits disclosure of identity information and authentication records in the interest of national security.

(i) Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling. Profiling could be used to predict the emergence of future choices and preferences of individuals. These preferences could also be used to influence the decision making of the electorate in choosing candidates for electoral offices. This is contrary to privacy protection norms. Data cannot be used for any purpose other than those that have been approved. While developing an identification system of the magnitude of Aadhaar, security concerns relating to the data of 1.2 billion citizens ought to be addressed. These issues have not been dealt with by the Aadhaar Act. By failing to protect the constitutional rights of citizens, Section 57 violates Articles 14 and 21.

(j) Section 57 is susceptible to be applied to permit commercial exploitation of the data of individuals or to affect their behavioural patterns. Section 57 cannot pass constitutional muster. Since it is manifestly arbitrary, it suffers from overbreadth and violates Article 14.

(k) Section 7 suffers from overbreadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform. If the requirement of Aadhaar is made mandatory for every benefit or service which the government provides, it is impossible to live in contemporary India without Aadhaar. The inclusion of services and benefits in Section 7 is a pre-cursor to the kind of function creep which is inconsistent with the right to informational self-determination. Section 7 is therefore arbitrary and violative of Article 14 in relation to the inclusion of services and benefits as defined.

(l) The legitimate aim of the State can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification. The State has failed to demonstrate that a less intrusive measure other than biometric authentication would not subserve its purposes. That the state has been able to insist on an adherence to the Aadhaar scheme without exception is a result of the overbreadth of Section 7.

(m) When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. This is contrary to the right to privacy and poses severe threats due to potential surveillance.

(n) One right cannot be taken away at the behest of the other. The State has failed to satisfy this Court that the targeted delivery of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution.”
- Order of Justice D Y Chandrachud, Constitution Bench, Supreme Court, 26 September, 2018 (pages 1028-1048)

There is definitely something amiss with the Aadhaar enrolment process if important demographic information such as the name of an applicant’s father, as is the case in hand, can be falsified and even go undetected. Thus, in order to get a wider picture of the entire Aadhaar process, the regulations concerning the Aadhaar scheme could not be allowed to evade scrutiny of this Court.”
- Justice Protik Prakash Banerjee, Calcutta High Court, January 3, 2019

“The malady in the present situation is further magnified by looking as to how arbitrary could the process of verification of demographic information of an Aadhaar applicant could be.”
- Justice Protik Prakash Banerjee, Calcutta High Court, January 3, 2019

Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme which promotes socioeconomic rights of citizens is violative of human dignity and impermissible under our constitutional scheme.
- Order of Justice D Y Chandrachud, Constitution Bench, Supreme Court, 26 September, 2018 (pages 1028-1048)

Both the Aadhaar Act and the Aadhaar Ordinance and the related e-commerce laws are deceptively engineering convergence of mass democracy and totalitarian state by creating human guinea-pigs in the “Aadhaar ecosystem”, the new concentration camps with genocidal implications. Had this been not the case government would either have shown urgency in enacting national asset and data protection law or President of India would have promulgated an Ordinance for it.  

Having failed to get Aadhaar and Other Laws (Amendment) Bill, 2018 passed by Rajya Sabha, ahead of the Election Commission’s imminent announcement for the 17th Lok Sabha elections, President of India promulgated the 12 page long Aadhaar and other laws (Amendment) Ordinance 2019 on March 2, 2019 under Article 123 of the Constitution to make amendments to the Aadhaar Act 2016, Prevention of Money Laundering Act 2005 & Indian Telegraph Act 1885. Notably, Supreme Court has established that ordinance is subject to judicial review. In the case of, Krishna Kumar Singh v State of Bihar, 7-Judge Constitution Bench of the Supreme Court, Justice D. Y. Chandrachud has held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Contrary to the directions of Supreme Court, the Aadhaar Ordinance has been promulgated in the aftermath of the order of the 5-Judge Constitution Bench of the Supreme Court dated September 26, 2018 authored by Justice A K Sikri (now retired) with the concurrence of three judges in pursuance of the 547 page long unanimous verdict of 9-Judge Constitution Bench of the Supreme Court authored by Justice Dr D.Y. Chandrachud with the concurrence of eight judges in the case regarding constitutional validity of UID/Aadhaar scheme and Aadhaar Act. In his glorious dissenting order, Justice Chandrachud expressed is strong disagreement with Justice Sikri’s order. He has pronounced the scheme and the Aadhaar law a totally unconstitutional.

In the meanwhile, as of March 8, 2019, Supreme Court’s website now refers to the Bench of Justices J Chelameswar, S.A. Bobde, C. Nagappan as the Bench which heard Justice KS Puttaswamy (Retd.) v. Union of India case, the UID/Aadhaar case. The website shows orders by 3-Judge Bench, 9-Judge Bench and 5-Judge Bench. It was the order of this very Justice Chelameswar headed 3-Judge Bench which had referred the case to the Constitution Bench. Justice Chelameswar, the presiding judge of the 3-Judge Bench was part of the 9-Judge Bench constituted by Chief Justice Jagdish Singh Khehar as well but not of the 5-Judge Bench constituted by Chief Justice Dipak Misra.

Disregarding Supreme Court’s majority order has expressly struck down the mandatory use of the UID/Aadhaar database as “unconstitutional”, Aadhaar Ordinance has been promulgated.  At page 434 (of the 567 page long majority order of the Constitution Bench of the Supreme Court), it is stated that UID/Aadhaar “is only an enabling provision which entitles Aadhaar number holder to take the help of Aadhaar for the purpose of establishing his/her identity” in a voluntary way.

ordinances may only be issued where there is a situation of `constitutional necessity’ (see Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1), and giving private companies access to the UID system cannot qualify as constitutional necessity.  It does, however, encourage private entities to collect, and use, the aadhaar number and attendant elements – except only biometric authentication, spreading the number into a range of data bases.

Both the majority order and minority order authored by Justice A K Sikri and Dr. Justice D.Y. Chandrachud respectively raised questions about the constitutionality of the Act. Now in a 25 page long judgment dated January 3, 2019 in Debashis Nandy v. Union of India, Justice Protik Prakash Banerjee of Calcutta High Court has raised serious questions about the Aadhaar Act and UID/Aadhaar scheme and has underlined that Unique Identification Authority of India (UIDAI) and its scheme is “cheating millions in the country who hold their Aadhaar as a concomitant to their identity.”

Justice Banerjee has recorded in the judgement that “The Learned Additional Solicitor General (Kuashik Chanda) alongwith Mr. Mukherjee (Rabi Prosad Mookherjee for Union of India)), submitted that no authentication is made of any material which is declared by an applicant for Aadhar card in his application.” It is well known that the “UIDAI is mandated to issue 12-digit Unique Identification Number called Aadhaar to the residents based on demographic and biometric information submitted by them to the UIDAI at the time of their enrolment into the Aadhaar scheme.” He has underscored that “Aadhaar is not the only means to identification and the question of identification of a person based on which a civil dispute would be decided do not solely rests with his/her Aadhaar identification” in the light of the Supreme Court’s decision.

Calcutta High Court’s verdict records that “Aadhaar (Enrolment and Update) Regulations, 2016 dated September 12, 2016 and issued under the authority of the Chief Executive Authority, UIDAI. Rule 10 of the aforesaid regulation lays down guidelines for submission and verification of information of individuals seeking enrolment. Sub-rule 5 of Rule 10 states that the verification of the enrolment data shall be as provided in Schedule III of the aforesaid regulation. Thus, it becomes necessary to understand the verification process in accordance with the aforesaid schedule.” Schedule III makes provision for recording of “Verification of enrolment information”. It observes that “The demographic information under the head “parent/guardian” and the fields “father’s/mother’s/husband’s/wife’s name” are shown to be in Schedule III of the Regulations, but optional in case of regulations. There is no verification required to be done in case of adults for father, husband or guardian. Which means, whatever an applicant says his father’s name is, the respondent no. 2 shall gullibly accept it as gospel truth.” The respondent no. 2 is UIDAI.

Arbitrariness is rampant in the entire UID/Aadhaar scheme. Section 2 (n) of Aadhaar Act, 2016 defines ‘identity information’. It states that “identity information” in respect of an individual, includes his Aadhaar number, his biometric information and his demographic information” This definition squarely lays down that information, both demographic as well as biometric, establishes the identity of an Aadhaar card holder. Therefore, information collected from an individual during the Aadhaar application process could not be treated with such disparity which would allow even false demographic information to pass under the scanner of the UIDAI without even being sufficiently verified.

Unlike Justice Dr Chandrachud’s order, the order of Justice Protik Prakash Banerjee, Calcutta High Court has erred in his observation with regard to his assumption about the uniqueness of biometric information and duplication of UID/Aadhaar based identification. Justice Banerjee forgot to record his views on two differing orders authored in Justice Dr Chandrachud’s order and Justice Sikri in the matter of UID/Aadhaar and Aadhaar Act. He may have to rectify these aspects of his order on some occasion.

The Constitution Bench comprising Chief Justice of India Dipak Misra and Justices Sikri, A.M. Khanwilkar, Dr Chandrachud and Ashok Bhushan.  Out of these five judges presiding judge Justice Misra retired on October 2, 2018 and Justice Sikri who retired on March 6, 2019. Now the composition of the Constitution Bench has changed. Notably, the tenure of only one judge out of the original 3-Judge Bench of Justices J Chelameswar, S. A. Bobde and C. Nagappan that heard the UID/Aadhaar case and referred it to Constitution Bench survives. Justice Bobde is now the second senior most judge of the Court. He was also part of the 9-Judge Bench that decided the aspect of fundamental right to privacy in the UID/Aadhaar case. Judicial discipline creates compelling logic for his inclusion in the Constitution Bench which has to hear some five petitions challenging the majority order authored by Justice Sikri. Imtiyaz Ali Palsaniya, the fifth petitioner has challenged the controversial Section 139AA of the Income-tax Act, which made mandatory linking of Aadhaar with permanent account number (PAN). The other four petitioners are: Beghar Foundation, MG Devasahayam, Mathew Thomas and Jairam Ramesh.

Besides these cases, as a consequence of the Aadhaar Ordinance, the 5-Judge Constitution Bench is under logical compulsion to subject this colourable legislation to judicial review because having failed in direct legislation, the government is legislating indirectly. Like Aadhaar Act, this Aadhaar Ordinance is an exercise in manifest breach of limits imposed on the government by the Constitution at the behest of anonymous foreign and domestic donors with military connections. Both the Act and the Ordinance establishes a biopolitical paradigm with repellent geopolitical consequences paving the way for the return of the Concentration Camp abandoning the original political relation between the Citizens and the State wherein natural rule of law is suspended. 

Dr Gopal Krishna


The author is convener Citizens Forum for Civil Liberties (CFCL). CFCL is research and advocacy forum focused on surveillance, UID/Aadhaar and DNA profiling technologies since 2010. He had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. He is also the editor of www.toxicswatch.org. Twitter:@krishna1715  

Fast unto death of Sant Aatmabodhanand and a World Bank Report on Ganga Basin

Written By BiharWatch on Saturday, February 23, 2019 | 11:03 PM



Image result for Aatmabodhanand @krishna1715Demanding Aviral Ganga (Unimpeded flow of Ganga) 26-year-old Sant Aatmabodhanand of Matri Sadan Ashram, Haridwar, Uttarakhand is on ‘fast unto death’ for last 124 days. He is on fast since October 24, 2018. He is following the path of Swami Nigamanand, Baba Nagnath and Swami Sanand (Prof. G.D. Agrawal) who have sacrificed their life for the cause of Ganga. Swami Sanand died after 111 days of continuous fast. (Photo:Sant Aatmabodhanand)

The fast has exposed the face of ruling political parties which are slaves of their corporate donors who wish to continue to truncate, mutilate and poison Ganga to monetize her water and her minor minerals. Donors of western India and their politicians in collaboration with North Indian counterparts seem to have prepared a blue print to rob Ganga basin of every natural heritage in myriad disguises in the name of their monetary growth at the cost of Ganga.

World Bank Group and its staff of all shades have been promoting contradictory projects in the Ganga basin to disrupt the river by facilitating projects which are environmentally disastrous. Notably, projects which are destroying Ganga has either monetary or non-monetary support of the World Bank Group. 

The Hindu news report below refers to one of the recent reports of the Bank which is classic “Bankspeak”. A computer analysis of more than 65 years of the bank’s annual reports has revealed decline in factual precision of its language. For instance, Bank no longer talk about preventing hunger. It talks of “food security.” It must be remembered that the word “governance” made its first appearance in 1990. It has been statistically confirmed that Banks and donor driven NGOs are using less of concrete language. The assessment commissioned by the World Bank and submitted to the Central Water Commission merits scrutiny from the angle of ulterior motives of “Bankspeak”.  

Residents of Ganga basin must be wary of people who speak the language of the Bank and donor driven NGOs. Struggle for Aviral and Nirmal Ganga has failed so far because of such people. We must identify their trail by paying rigorous attention to their linguistic fingerprints because the world is "determined" by the language we speak and write. 

There is a need to expose parties and NGOs who are wittingly or unwittingly complicit in the ongoing killing of Ganga.

The struggle for Aviral and Nirmal Ganga faces threat from the harmful motives of all kinds of wage slaves in order to secure Aviral and Nirmal Ganga by making parties promise Aviral and Nirmal Ganga by recognizing the non-negotiable legal right of Ganga and other rivers in their manifesto. 
May 2019 general elections can turn out to be a referendum on enforceable legal rights of Ganga.


Gopal Krishna 

Ganga basin States stare at three-fold rise in crop failures by 2040

The Ganga river basin could see crop failures rise three-fold and drinking water shortage go up by as much as 39% in some States between now and 2040, says an assessment commissioned by the World Bank and submitted to the Central Water Commission.
If there is no intervention, Uttarakhand, Himachal Pradesh, Uttar Pradesh and Bihar are likely to see a deficit in irrigation water of 28%, 10%, 10% and 15% respectively in 2040 as compared to the current levels. Madhya Pradesh would see a 39%, Delhi 22% and Uttar Pradesh a 25% deficit in drinking water during the same period, the assessment released earlier this week noted.
“The volume of extracted groundwater is expected to more than double, leading to an increase in the critical blocks. Low flow values in the rivers are predicted to decline compared to present levels…Water quality and environmental flow conditions already critical will deteriorate further,” the report has warned.
The report is based on a modelling study that simulates river flow, water quality and groundwater levels in the different States and regions within the Ganga river basin.
To extrapolate, the model considered land use, infrastructure, population, industry and agriculture settings as well as the precipitation and temperature settings.
The aim of the report was to strengthen the “capacity for strategic basin planning, develop a set of scenarios for the development of the Ganga basin and build a strong and accessible knowledge base.”
 

Judgment Delayed is Justice Denied

Written By BiharWatch on Sunday, February 17, 2019 | 1:42 AM


Responding to senior advocate Indira Jaising’s reminder on 7 February 2019 about Supreme Court’s previous judgment saying that the judgment should be pronounced within three months after hearing is concluded and is reserved for orders; Justice A K Sikri pronounced the awaited verdict on 14 February, 2019 after the hearing was concluded on November 1, 2018. 

Justice Sikri Bench complied with Supreme Court’s verdict in Anil Rai Vs State of Bihar. But Supreme Court’s order is not being complied in Patna High Court which has not pronounced its verdict in Dr. Rakesh Verma V State of Bihar (2017) even after 10 months of admittedly concluding the arguments. Single Judge Bench of Justice Ahsanuddin Amanullah passed an order on 2nd April, 2018 saying, “Learned counsel for the parties have been heard. Arguments concluded. The matters be listed under the heading ‘For Orders’ on 9th April, 2018”. The matter was listed “For Orders” on 9 April, and 4 September of 2018. It was listed “For Admission” on 20 April, 2018. The matter was listed “For Orders” on 23 April, 2018 but it was adjourned. (Photo: Justice Ahsanuddin Amanullah)

To make matters worse, on 4th September, 2018, the registry of the Patna High Court listed this very case “For Orders” before the single judge bench of Justice Mohit Kumar Shah, a different Bench. Fortunately, Justice Shah passed an order saying, “It appears from the records that the present batch of cases has been assigned by the Hon’ble The Chief Justice to a particular Bench. In such view of the matter, let the aforesaid cases be listed before the same Bench”. This order was passed after it was pointed out by the counsel for the parties that “the present batch of writ petitions was being heard by another Bench.” On earlier two occasions too, this case got listed before the single Judge Bench of Justice Dr. Anil Kumar Upadhyay, a different Bench. Justice Upadhyay too had passed an order on 15 November, 2017 saying, “Considering the fact that the matters were earlier listed and heard by another Bench at length on different dates, let these cases go out of my Board, to be listed before the same Bench after taking permission of Hon’ble the Chief Justice” after it was pointed out by the Counsel for the petitioners that “these matters were earlier heard by a Bench of this court on various dates at length.”

Now the matter is listed “For Orders” on 20 February 2019. Prior to this it was listed “For Orders” on 16 January, 23 January, 6 February and 13 February of this year.

The petitioners have filed the case against the Government of Bihar on the subject of the retirement age of 65 years for teaching employees of Universities. As per the petitioners retirement age stands extended to 65 years and they cannot be forced to retire on or after that date prior to attaining the age of 65 years. These writ petitions were filed in the Patna at High Court on 3rd October, 2017 challenging the order of the Bihar Government.

It is evident that this Bench of Patna High has not paid required attention towards the verdict in the case of Anil Rai Vs State of Bihar, wherein the Division Bench of Supreme Court comprising of Justices K T Thomas and R P Sethi observed “….as the pronouncement of judgement is a part of justice dispensation system, it has to be without delay.”

The Supreme Court enumerated remedial measure saying, “(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned.” The inaction by Patna High Court after the judgment was reserved in Rakesh Verma v State of Bihar and some 14 other cases shows that Supreme Court’s instructions have not been complied with so far.

The Supreme Court enumerated remedial measure saying, “(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.” There is no clarity about compliance with this instruction by the Patna High Court.

The Supreme Court enumerated remedial measure saying, “(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.” With regard to the pending matter before the Bench of Justice Ahsanuddin Amanullah in Patna High Court, it is not known as to whether “the concerned Chief Justice” drew “the attention of the Bench concerned to the pending matter” because such communication from the Chief Justice to the Bench of Justice Amanullah was required to “be conveyed as confidential and in a sealed cover.”

The Supreme Court enumerated remedial measure saying, “(iv) Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.” As per Supreme Court’s instructions, on several occasions the petitioner mentioned the matter with the prayer for early judgment but to no avail. Such application was supposed to “be listed before the Bench concerned within two days excluding the intervening holidays” despite this case has not been listed before the concerned Bench of Justice Amanullah within two days by the registry.

All the petitioners are senior citizens who have been denied salaries etc. This has compelled them to live a inhuman life. They are unable to fulfill their moral, financial liabilities to their families specially their old parents and dependent children regarding their medicines and other necessary expenses. The continued delay in the pronouncement of the order has made them miserable because of denial of their fundamental right to life and livelihood.

The delay in judgment has already denied justice to 8 out of 21 petitioners who have attained the age of 65 years besides them 6 more petitioners attained the age of 65 years in January, 2019. The petitioners include 21 university teachers like Dr. Asad Hasan, Dr. Raj Kumar Mazumdar, Dr. Ram Shrestha Roy, Dr. Ashutosh Kumar Sinha, Dr. Ram Prakash Chandra Verma, Dr. Prem Kant Jha, Dr. Ram Naresh Kunwar, Dr. Raj Kumar Madhukar, Dr. Shashi Bhushan Singh, Dr. Rakesh Verma and Dr. Usha Singh.

It is noteworthy that Justice Amanulah Bench of Patna High Court has passed an interim order in this very case dated October 18, 2017 saying, “Learned counsel for the U.G.C. has filed a counter affidavit which is the downloaded net copy of the original. He has assured the Court that on the reopening, the main copy shall be filed in the Court. In the meantime, let the copy produced be kept on record. In view of the fact that the petitioners have been issued notice as to why action be not taken against them for having continued beyond the age of 62, the Court deems it appropriate to direct that until further orders, no coercive action shall be taken against them.” It also observed “It is further indicated that as the matters are urgent and have been heard for quite sometime, it is only fair that they be heard with a view for their final disposal, without any further indulgence”. It is eminently clear that Justice Ahsanuddin Amanullah has given partial relief to the petitioners. But disregarding his order coercive actions are being taken against some of the petitioners. The concerned officials who have denied the fundamental rights of the petitioners continue to enjoy indulgence. Given the fact that High Court has taken the submission of UGC on record, it is germane to note that the UGC’s communication on enhancement in the age of superannuation from 62 to 65 years for teaching positions is unambiguous. 

After 10 months of non-compliance with Supreme Court’s judgment by the Patna High Court, can these 21 petitioners, the university teachers expect pronouncement of the long awaited verdict before the expiry of one year of the conclusion of the arguments on 2nd April, 2019? The counsels of the petitioners do not seem to have seem to have covered themselves with glory either. Amidst the burden of pending cases before the bench of  Justice Amanulah, it is their duty to ensure compliance by making written submissions as per Supreme Court's instructions in Anil Rai case where it has been made amply clear that "Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.” There is nothing on record to show that the counsels of these 21 university teachers have done so. 

Supreme Court in the case of Anil Rai Vs State of Bihar observed, “….once the entire process of participation in justice delivery system is over and only thing to be done is the pronouncement of judgement, no excuse can be found to further delay for adjudication of rights of parties, particularly when it affects any rights conferred by the Constitution under Part III.” 

Is inertia of judicial institutions due to paucity of sufficient judge power excusable and compatible with the letter and spirit of Constitution? At present, The fact remains Patna High Court has 27 judges against the sanctioned strength of 53 as on February 17, 2019 unlike Supreme Court which has 28 judges against the sanctioned strength of 31 judges.  

As of February 2018, there were some 1,45,110 cases pending in the Patna High Court in the absence of sufficient strength of judges. The number of pending cases have increased further despite the hard work of judges who are working even on Saturday to clear the backlog. The delay by Justice Amanulah Bench could be because of the enormity of pending cases or due to the passivity of concerned counsels in the case but public institutions like High Courts remain legitimate in the eyes of citizens, "we the people" only as long as they do not get structurally coerced to become complicit in creating a situation where Judgment Delayed is Justice Denied. 

Dr Gopal Krishna

The author is a public policy and law researcher, Convener, Citizens Forum for Civil Liberties (CFCL) and editor of ToxicsWatch Journal, www.toxicswatch.org

 
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